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586 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
the highest proportions of Latinos also are along the U.S. border with
Mexico. 111 Accordingly, most of the cases discussed in this Note
originated in the southern parts of the Fifth, Ninth, and Tenth Circuits.
112 This is not only because of the large Latino population, but
also because most Border Patrol agents are stationed along the U.S.-
Mexican border.
4. Immigration Enforcement in Practice: The Border Patrol
The Border Patrol was established in 1924 and is the uniformed
law enforcement agency of the United States Customs and Border
Protection (CBP). 113 Its primary mission remains detecting and
preventing the “illegal entry of aliens into the country,” although its
priority mission is preventing terrorists and terrorists’ weapons from
entering the country. 114 To enable them to do this, Border Patrol officers
have the power to board “any vessel within the territorial waters
of the United States and any railway car, aircraft, conveyance, or vehicle”
within 100 miles of the U.S. external border115 and to interrogate
without warrant “any alien or person believed to be an alien as to his
right to be or to remain in the United States.” 116
The Border Patrol has expanded from 6500 agents in 1997 to
more than 14,000 agents today, 117 and it is responsible for over 95%
of undocumented immigrant apprehensions. 118 As of 1997, 92% of
those agents were stationed in the nine sectors across the southwest
border. 119 Accordingly, the Border Patrol apprehended 1.5 million
111. U.S. CENSUS BUREAU, HISPANIC POPULATION, supra note 110, at 5. As of R
2000, Hispanics were the majority in thirty-four Texas counties, nine New Mexico
counties, two Arizona counties, and two California counties. Id.
112. See supra Parts I.B–C; infra Part II.C.
113. Steve Helfand, Desensitization to Border Violence & the Bivens Remedy to
Effectuate Systemic Change, 12 LA RAZA L.J. 87, 87 (2000); CBP Border Patrol
Overview, http://www.cbp.gov/xp/cgov/border_security/border_patrol/border_patrol_ohs/overview.xml
[hereinafter CBP Border Patrol Overview] (last visited
Feb. 3, 2008).
114. CBP Border Patrol Overview, supra note 113. R
115. 8 U.S.C. § 1357(a)(3) (2006); 8 C.F.R. 287.1(a)(2) (2006).
116. 8 U.S.C. § 1357(a)(1) (2006).
117. Accountability for Security Gaps Hearing, supra note 84 (testimony of Michael R
Chertoff, Sec’y, Department of Homeland Security); Helfand, supra note 113, at 88 R
n.5. By the end of 2008, the DHS expects to have more than 18,300 Border Patrol
officers, over double the number in 2001. Accountability for Security Gaps Hearing,
supra note 84 (testimony of Michael Chertoff, Sec’y, Department of Homeland R
Security).
118. Helfand, supra note 113, at 88. R
119. U.S. GEN. ACCOUNTING OFFICE, GAO/GGD-98-21, ILLEGAL IMMIGRATION:
SOUTHWEST BORDER STRATEGY RESULTS INCLUSIVE; MORE EVALUATION NEEDED 7
(1997) [hereinafter GAO, ILLEGAL IMMIGRATION] . The Border Patrol remains con-