CBP Officers’ Law Enforcement Authority Clarified
By Caitlin Harrington, CQ Staff
For more than two years, a number of Bureau of Customs and Border Protection (CBP) officers questioned whether they had the same powers of arrest and other law enforcement duties as they did before CBP was created in 2003. In June, the Department of Homeland Security (DHS) finally issued a memorandum clarifying that authority.
Former officers of CBP’s predecessors, the U.S. Customs Service and the Immigration and Naturalization Service, all have the same statutory authority, according to a June 21 memo signed by CBP Assistant Commissioner Jayson P. Ahern. So do CBP officers who graduated from the CBP Academy after October 2003.
Charles Showalter, head of the homeland security unit at the American Federal of Government Employees, welcomed the clarification.
The memo, he said, tells CBP officers that they can be confident the law is behind them when they issue notices to appear in court, take sworn testimony and perform other functions necessary to do their jobs.
“I’m really happy with the fact they’re saying ‘Yes, you can do your job,’ ” he said Wednesday in a telephone interview. “The agency wasn’t talking about it, and in their efforts to hurry up and get things going, they dropped the ball on this one . . . there were broad questions because that was the one thing that was never resolved.”
Showalter said agents started questioning the scope of their legal authority when newly minted CBP officers began to arrive with credentials that did not appear to convey the same powers that legacy immigration officers had enjoyed. It was unclear, for example, whether the CBP officers could conduct warrantless arrests and searches or take sworn statements, Showalter said.
Both legacy Customs and immigration officers — as well as the newer CBP recruits — began to question whether their authority still stood, Showalter said.
CBP cited an example of the confusion in the memo, acknowledging “anecdotal reports” that some immigration judges have questioned the validity of “notices to appear” in court issued by CBP officers. That is because a 1986 immigration reform law cites the right only of immigration officers to issue such documents.
The confusion could have led to lawsuits against officers, said Showalter, although to his knowledge things never got that far. CBP was unable to provide a comment by press time.
Caitlin Harrington can be reached at charrington@cq.com.
