Border Patrol's vessel checks raise concerns

The U.S. Border Patrol's intensive efforts during the past month to stop any vessels from the St. Croix River to Jonesport, including Canadian lobster boats fishing in the disputed Grey Zone around Machias Seal Island, have baffled fishermen and caused some attorneys to question whether the federal agency is overstepping its authority.
According to Stephanie Malin, a spokesperson for U.S. Customs and Protection, 21 Canadian vessels fishing in the Grey Zone have been stopped, with the captains interviewed by agents from the Border Patrol's Houlton sector. Some of the boats have been boarded, and one captain said the Border Patrol agents told him they were looking for illegal immigrants, according to Laurence Cook, chair of the Grand Manan Fishermen's Association's Lobster Sector. He says that would be "silly," since the fishermen were not in U.S. waters. "Anyone can be there," he notes of the Grey Zone area that is claimed by both the U.S. and Canada.
Malin states that the Border Patrol was conducting regular patrol operations to enforce immigration laws and other violations of federal law that they may encounter in the course of their duties during the operation in June. Cook, though, comments, "The Border Patrol says this is routine. This is the first routine patrol in 25 years, so I'd say it's not too routine."
According to Malin, the Border Patrol does not board Canadian vessels without consent or probable cause and only conducts interviews as a vessel runs parallel to it. Cook, though, notes that one Canadian fisherman refused to stop, and the Border Patrol contacted the RCMP about him. When the fishermen explained to the RCMP officer that he was fishing in the Grey Zone the officer said, "What the hell are they doing?" according to Cook.
Canadian authorities do not bother American boats in the Grey Zone, so American authorities should not stop Canadian vessels, says Cook. He says the area operates under flag state enforcement, meaning that you are subject to enforcement by the state whose flag you are fishing under. If there is cross-enforcement of laws by the U.S. and Canada in the Grey Zone, "it will be a mess," says Cook.
While some fishermen feel the Border Patrol's actions are "quite annoying," since "we're not bugging U.S. boats," Cook believes the move by the U.S. agency is "an oversight on someone's part."
The Grand Manan Fishermen's Association issued a release stating that the association is working with the Canadian government to ensure that Grand Manan fishermen will be able to continue their fishery as usual in the 165-square-kilometre Grey Zone, which Canadian and American fishermen have fished jointly for years.
John Babcock, spokesperson for Global Affairs Canada, points out, "Canada's sovereignty over the Machias Seal Island and the surrounding waters is long standing and has a strong foundation in international law. Until the matter of the boundary is resolved, we will continue to take practical steps with the U.S. to ensure that the area is well managed." He adds, "Canada has been engaged with the U.S. agencies involved in the incidents that occurred in Canadian waters and continues to investigate the matter."
Malin states that U.S. Customs and Border Protection (CBP) is working with the Department of State on the Grey Zone issue.

Stopping of U.S. vessels
Along with Canadian fishermen, many American fishermen also are being questioned by the Border Patrol. John Drouin of Cutler, who is chairman of the Lobster Zone A Council, says he knew of at least a half dozen lobster boats from Cutler that had been stopped, and since he was boarded about three weeks ago "I've heard of two or three times as many from the harbor that have been stopped. One guy was stopped four times."
Drouin says the officers ask those whom they stop about their citizenship and request identification. Drouin doesn't carry his driver's license on his boat but did have his federal fisheries permit. Drouin asked the officers questions about what they were doing, and while the officers said they were documenting who is in the area, they would not provide Drouin any more information. "They were tight-lipped about what their intentions are," he says. "They said if we see a boat we're going to stop it."
Drouin says the officers have boarded some of the vessels and have been in the area "day after day," at least as far as Jonesport. While many years ago he had seen Border Patrol boats in the area, this is the first time he's seen them stopping and boarding vessels on a regular basis. "I'm baffled," he says, adding, "Everyone's getting worked up to some extent  at least the Canadians are."

Questions raised
Malin states that Houlton sector Border Patrol has conducted operations in the past in this area and will continue to conduct operations off the coast of Maine in jurisdictional waters of the United States. She adds, "Operations of this type are within the jurisdiction of the Border Patrol and performed in direct support of land border enforcement efforts as a vital component of our immigration and national security efforts."
She cites the Immigration and Nationality Act as having established the authority for the Border Patrol to conduct immigration inspections. "19 USC 482 Customs Border Authority gives the authority to stop, search and examine any vehicle entering the United States, including those in the maritime environment," she states. "Vessels that fail to heave to U.S. Border Patrol agents may be charged under 18 USC 2237."
However, Emma Bond, a staff attorney with the American Civil Liberties Union (ACLU) of Maine, notes that although there are some U.S. Supreme Court cases that state the Border Patrol can engage in suspicionless searches of vessels, the ACLU maintains that the Fourth Amendment requires that there be probable cause and a particularized suspicion before a search can be conducted. With the stopping of vessels in the disputed Grey Zone, CBP is "pushing its authority beyond what we believe is its authority," says Bond.
Noting that CBP is engaging in these enforcement efforts without notice or explanation, she says the agency is "a secretive and opaque organization" that has failed to provide information about such stops, which has been requested by the ACLU numerous times. The ACLU has filed two lawsuits in federal court seeking the information.
As for reports that CBP is looking for illegal immigrants by stopping lobster boats, she says that "sounds unlikely to me," but since the agency refuses to provide information about its searches it is difficult to judge whether that statement is true. "Whenever a law enforcement agency as large and as well funded as Customs and Border Protection searches without probable cause and without a warrant, there is always the potential for abuse," she says, particularly if disadvantaged people or certain races are targeted.
Bond notes that anyone who is stopped by CBP can provide the documentation requested or can invoke the right to remain silent. You can also state that you are refusing to consent to a search and can repeatedly ask the officer if you a free to leave. You can also record the interaction.