CBP Letter Prompts the Question: Is DHS Criminalizing Compassion and Association?

Written by Greg Nojeim, Mana Azarmi

Authorities at the U.S. border are arguing that journalists who report on asylum seekers, and the lawyers and activists who advise them, are legitimate targets for investigation under 8 U.S. Code §1324 for the crime of illegally “encouraging” aliens to cross the border unlawfully. This alleged crime justifies the targeting of these individuals for surveillance, and may be tied to the search and detention of their electronic devices at ports of entry. That’s the message U.S. Customs and Border Protection (CBP) delivered in a May 9th letter to the Center for Democracy & Technology, which responded to the coalition letter we sent the Department of Homeland Security (DHS) about a pattern of enforcement activity that appears to target journalists, lawyers and activists associated with asylum seekers.

8 U.S. Code §1324 makes it a federal crime to bring in or encourage an undocumented person to come into the U.S., or to harbor, transport, or conceal such persons after they have arrived. There has long been concern that this statute could be used to chill and retaliate against organizing, political dissent, and the provision of aid to individuals seeking entry into the U.S. as well as those maintaining unlawful status in the U.S. The assertion by CBP that activists, lawyers, and journalists were targeted and harassed due to investigations of possible violations of this statute appears to bear out this concern. It cannot be that anyone who associates with asylum seekers is immediately viewed with suspicion and is subject to surveillance and enhanced scrutiny at ports of entry—including electronic device searches.

Recent reports demonstrate how blunt an instrument this statute can be. A liberal wielding of this statute will deter acts of compassion, such as providing a person in need water or a ride to the emergency room. It will also chill the exercise of associational activities such as reporting on the treatment of migrants or providing them legal counsel, humanitarian aid, or religious services.

Moving Forward

While we appreciate that CBP responded to us promptly, their letter is devoid of answers to the questions and requests we posed. It fails to address key issues such as the training materials provided to CBP related to First Amendment-protected activities, the agency’s policy regarding encounters with journalists, and whether DHS communicated with foreign governments about activists, lawyers, and journalists in order to restrict their travel. Instead of addressing these issues, CBP’s response invites one more question: what predicate showing is necessary to investigate someone for a violation of §1324?

Several Congressional inquiries are still outstanding, and we hope Congress will press DHS for information if the agency continues to be unresponsive. The DHS Office for Civil Rights and Civil Liberties referred our letter to the DHS Inspector General, which is already reviewing CBP’s conduct. We hope the DHS IG will also investigate the activity of Immigration and Customs Enforcement (ICE), which, as we noted in our letter, created and disseminated a spreadsheet of “Anti-Trump protests” in New York City.

DHS and its agencies must be more forthcoming and transparent about the operation of their investigations and more respectful of the rights of people who both interact with non-citizens and bring electronic devices across the border. DHS should not be allowed to abuse its authority such that it tramples upon the exercise of First and Fourth Amendment rights.

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