Immigrant advocates cast doubt on border law
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A little known border law from the 1950s may be playing a big role in the current surge of controversial immigration actions across Chicago — even though few would consider the city a border town.
The big picture: The statute created what's known as the "100-mile zone" where Customs and Border Protection agents conduct warrantless searches of vehicles within a "reasonable distance" of an international border.
- The practice greatly scales back Fourth Amendment protections against warrantless search and eventual arrest in the zone.
- If the Department of Homeland security considers Chicago part of the zone, as many maps suggest, it could explain a lot about recent warrantless CBP searches, arrests and operations from Albany Park to South Shore.
What they're saying: "This is unprecedented," Patrick Eddington, a senior fellow at the libertarian Cato Institute tells Axios. "I've been working on CBP-related issues now for almost 11 years, and I've never seen anything like."
The other side: CBP "is empowered by longstanding federal law to operate within 100 miles of an international border," Asst. DHS Sec. Tricia McLaughlin told Axios by email. "This 100-Mile Border Enforcement Zone also encompasses airports and international entry points into the country."
Yes, but: It's still far from clear if Chicago falls in that zone. DHS officials did not respond to multiple recent requests asking to clarify if and how Chicago would feasibly qualify for the zone.
- Both the ACLU Illinois and the Illinois Coalition for Immigrant and Refugee Rights dispute Chicago's inclusion in the zone, citing legal definitions of reasonable distance and external boundaries.
- Plus, a congressional map of the 100-mile zone does not include Chicago.
Between the lines: While courts have affirmed the enhanced powers of CBP within 100 miles of the Southern Border, the agency "took and expanded it to include all of these other areas, which courts never addressed," Nicole Hallett, director of the Immigrants' Rights Clinic at UChicago, tells Axios.
The intrigue: Even if Chicago were verifiably located within 100 miles of the international border, DHS agents would still be prohibited from warrantless arrests without probable cause under the 2022 Castañon Nava settlement.
- On Friday a federal judge confirmed that CBP agents are subject to Castañon Nava rules after government lawyers argued they aren't.
Zoom out: At least one law scholar argues the 100-mile rule was unlawful from the start.
- University of Illinois at Springfield law professor Deborah Anthony asserted in a 2020 Penn Law State Law Review article that the 1953 statute enacted by Congress is null because "Congress can't pass laws that supersede constitutional requirements. If there's a conflict, the Constitution has to prevail. And there is a conflict," she tells Axios.
The latest: On Friday District Court Judge Jeffrey Cummings ordered DHS to produce documents on its hundreds of warrantless arrests this year in Illinois and five other states, while opening the door to releasing some of those arrestees on electronic monitoring while they await trial.
What we're watching: How Border Patrol Cmdr Gregory Bovino explains his agents' use of warrantless arrest and crowd control when he testifies in front of District Judge Sara Ellis on Tuesday in federal court.