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The INS on the LineMaking Immigration Law on the US-Mexico Border, 1917-1954$

S. Deborah Kang

Print publication date: 2017

Print ISBN-13: 9780199757435

Published to Oxford Scholarship Online: January 2017

DOI: 10.1093/acprof:oso/9780199757435.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 01 December 2020

The Battle for the Border

The Battle for the Border

Chapter:
(p.36) 2 The Battle for the Border
Source:
The INS on the Line
Author(s):

S. Deborah Kang

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199757435.003.0003

Abstract and Keywords

The multiple challenges faced by the early Border Patrol and its efforts to overcome them are the themes of Chapter 2. It first focuses on how local residents and immigration inspectors pursued open border policies so as to sustain Prohibition era economic growth. Their vision of the border as an economic zone fueled local opposition to the emergence of the Border Patrol. The second part of the chapter describes how federal ambivalence regarding the Border Patrol left it without the resources necessary to carry out its mandate. In an effort to compensate for all of these weaknesses, the unit, as described in the third part of the chapter, resorted to the law, devising a broad vision of border enforcement. Yet, as the final part of the chapter explains, the Patrol’s efforts only generated more debates about the nature of immigration law enforcement and the very meaning of the border.

Keywords:   Border Patrol, nativism, Prohibition, Volstead Act, quota system, legalization, undocumented immigration, Customs Bureau

It was this same element who sometime past sent to the Bureau a resolution asking that the international boundary line be moved back to the outskirts of Calexico. This petition seemed so ridiculous that we paid very little attention to it as we could not conceive that any American city really desired to become a Mexican city which, in the last analysis, the granting of the petition would be.

—Harry E. Hull, Commissioner General, January 28, 1926

In the 1920s, local residents from California to Texas demanded that the Bureau of Immigration move its operations away from the border, redrawing the geopolitical boundary between the United States and Mexico.1 In Arizona, the Nogales Chamber of Commerce boldly proposed the relocation of the port of entry from the international line to the northern boundary of town.2 The Governor of Arizona endorsed a similar plan, proposing the creation of a “state free or trade zone” extending one mile north of the international border in which the Immigration Service would cede to the State of Arizona control over immigration regulation.3 In California, Calexico residents went so far as to ask that the international boundary line itself be resituated to a point north of the city.4

These conceptions of the border, as a contingent and even portable boundary, would pose serious challenges for the Border Patrol, a mobile enforcement unit created in 1924 to harden the line to the entry of unwanted immigrants. Well into the 1920s, border residents continued to resist the imposition of federal authority along the nation’s southern line, expressing their opposition to the passage of a fresh set of immigration restriction laws in Congress. These measures included the Immigration Act of 1924 (which created the national origins quota system), the Appropriations Act of May 28, 1924 (which created the Border Patrol), and the Act of March 4, 1929 (which created the first criminal penalties for undocumented immigration).5 While many border residents shared the nativist sentiments that inspired the passage of these laws, others thought mainly about their pocketbooks. The new immigration laws would interfere with their ability to take advantage of the regional economic boom that resulted from the (p.37) passage of the Volstead Act in 1919, a measure that would enforce the prohibitions against the manufacture, sale, or transportation of alcoholic beverages in the United States, as stipulated under the Eighteenth Amendment.6 Faced with the enduring defiance of locals, the Border Patrol recognized that it would have to posit its own vision of the border.

This chapter traces the early history of the Border Patrol and its battle for the border. In its effort to close the line to unwanted immigrants, the unit redefined and relocated it, transforming it from a line into a space or from an international boundary into a legal jurisdiction, which began at the border and extended far within the nation’s interior. Within this jurisdiction or border zone the Border Patrol developed a broad array of policing powers vis-à-vis undocumented immigrants, including the authority to pursue, search, and arrest these individuals without regard for the Fourth Amendment prohibition against unreasonable searches and seizures.7 Yet in the 1920s, this conception of the border failed to supplant the competing visions of the international line. Instead, the Patrol’s legal construction of the borderlands contributed another layer of meaning to the developing genealogy of the border. In this period the US–Mexico border region was also construed as a geopolitical boundary, a transnational social space, a vice-free zone, an economic free trade zone, and a symbol of national sovereignty.

The multiple challenges faced by the early Border Patrol and its efforts to overcome them are the themes of this chapter. It first focuses on the ways in which border residents and southwestern immigration inspectors pursued open border policies so as to sustain Prohibition-era economic growth. Their vision of the border as an economic zone would fuel local opposition to the emergence of the Border Patrol. Federal as well as local officials presented additional quandaries for the new unit. The second part of the chapter describes how federal ambivalence regarding the very creation of the Border Patrol left it without the resources necessary to carry out its mandate. In an effort to compensate for all of these weaknesses, the unit, as described in the third part of the chapter, resorted to the law, exercising its administrative discretion to devise a broad vision of border enforcement. Yet as the final part of the chapter explains, the Patrol’s efforts only generated more debates about the nature of immigration law enforcement and the very meaning of the border.

In the 1920s border residents gave voice to the saying that the more things change, the more things stay the same. Their persistent and vociferous calls for the creation of an open border or a border zone repeated analogous demands made during World War I in response to the passage of the Immigration Act of 1917 and the Passport Act of 1918. Yet local residents made these proposals in a period of enormous change. Thanks to the passage of the Volstead Act, the border region witnessed the rise of a binational tourist industry that fueled (p.38) economic growth over the course of the decade. Seeking pleasure or profit, millions of tourists, businessmen, workers, and settlers flocked to the region in the 1920s. Their substantial contributions to the local economy led border residents to vehemently protest the creation and enforcement of any crossing restrictions. Thus as nativists and moral reformers successfully lobbied for the passage of border crossing curfews, the Immigration Act of 1924, the creation of the Border Patrol, and the Act of March 4, 1929, border residents repeatedly obtained exemptions to these measures. The exemptions afforded by the Bureau of Immigration were so extensive that despite its concerns about unauthorized entry, it played a pivotal role in creating the very border zone sought by local residents.

While the Mexican Revolution and World War I drew the nation’s attention to the border as a sovereign space, Prohibition added another dimension to Americans’ image of the border, as it became a major tourist destination for the remainder of the 1920s.8 Travelers from all over the country visited Mexican border towns where they could escape the strictures of Prohibition in a variety of entertainment venues, including saloons, dance halls, gambling parlors, and racetracks.9 In 1920 alone, approximately 420,000 tourists crossed the border, an explosive increase from 14,000 the prior year.10 Joining their ranks were saloon proprietors, liquor manufacturers, entertainment purveyors, and liquor smugglers who relocated their businesses south of the border.11 While the vast majority of these proprietors were American, Mexicans, Europeans, and Asians also opened small businesses in Mexican border towns.12

As Americans traveled south of the border to imbibe, Mexicans traveled north to meet their subsistence needs and to find work. Although Prohibition facilitated the industrial and agricultural development of Mexican border towns, their ongoing focus on the sale and manufacture of alcohol meant that residents had to travel to American border towns to purchase a wide variety of everyday items, including food products, household goods, and clothing.13 By 1926, Juárez residents spent $1.56 million on consumer goods purchased south of the border and $15 million in El Paso.14 Similar disparities appeared in other twin-city complexes along the border: in 1926, residents of Nogales and Mexicali spent $26,000 on consumer goods in Mexico and $10.5 million in the United States; in Tijuana, virtually all consumer goods were purchased north of the line.15 The lack of economic diversification in Mexican border towns also led many to commute across the border for work.16 Here, they were drawn by the rapid growth of southwestern agriculture, mining, manufacturing, and transportation industries in the 1920s.17 Indeed, in the Southwest, the demand for workers was so great that the numbers of agricultural and industrial workers in the region increased during a period in which their numbers declined in the nation as a whole.18 (p.39)

The Battle for the Border

Figure 2.1 Agua Caliente Racetrack, Tijuana, Baja California, c. 1920.

Reproduced by permission of the San Diego History Center, S-653.

Vice brought profits as well as people to the borderlands. At both the federal and local levels, taxes on liquor production, licensing fees imposed upon entertainment establishments, and tourist expenditures provided a critical source of revenue in Mexico. In 1923, taxes on liquor production alone constituted 5 percent of federal revenues; over the course of the decade in Mexicali, entertainment industry concessions constituted anywhere from 9 to 48 percent of city revenues.19 The funds in turn allowed federal and state governments to make infrastructural improvements, financing the construction of public works such as schools, libraries, and roads.20 North of the line, American border towns, automobile clubs, and railroad lines sought to capture the attention and dollars of tourists headed to Mexico. Through national advertising campaigns, they highlighted the amenities, historical attractions, and pleasant climate of the region, encouraging tourists to make a stay in an American border town one stop in their journeys south of the line.21 These efforts paid off, sparking the growth of the service and retail sectors, including the hotel, restaurant, real estate, and banking industries in the Southwest.22 Finally, sustained by a Mexican national workforce, the agriculture, ranching, and mining industries, which were of far greater economic significance to the region than tourism, also flourished during Prohibition.23 (p.40)

In the midst of this economic boom, anti-vice forces from both the United States and Mexico tried to close the line.24 American prohibitionists worried that the Mexican vice industry threatened the moral and physical health of its American patrons and undermined their broader reform campaign at home in the States.25 They asked the Mexican government to deny licenses to American businesses and called for the creation of a fifty-mile dry zone, or what effectively would constitute a vice-free zone in the region adjacent to the border.26 In Mexico, reformers objected to the vice industries for nationalistic as well as moral reasons. Prohibition, as historian Oscar Martínez observes, drew Mexican border towns into “the economic orbit of the United States”: in Juárez and Tijuana, for example, Americans owned most of the entertainment venues, hired American citizens, and served a predominantly American clientele.27 In response, Mexican reformers demanded protections for Mexican employees and the increased hiring of Mexican nationals, as well as the closure of American entertainment establishments.28

The Battle for the Border

Figure 2.2 A casino in Tijuana, Baja California, c. 1920.

Reproduced by permission of the San Diego History Center, S-659.

The reformers’ campaign reshaped border crossing regulations on both sides of the line. To deter the entry of unwanted pleasure seekers, Mexico, throughout the 1920s, passed laws that criminalized the narcotics trade, regulated the (p.41) prostitution industry, taxed entertainment venues, and established early closing hours at a few border ports of entry.29 In order to diversify the predominantly American workforce in Mexican border towns, a Mexican court in 1925 required companies to ensure that at least half of their employees were Mexican nationals.30 On the US side of the border, the Treasury Department, between 1925 and 1930, increased the number of customs inspectors on patrol from 111 to 723.31 Searching travelers and their vehicles for illicit contraband, they made the border crossing experience more “intrusive and time-consuming” than ever before.32 At the behest of local reformers, customs officials instituted early closing times at the border ports of entry until the demise of Prohibition in 1933. Although there was much variation in these curfews, they shared the same purpose: to drive Mexican vice industries out of business by cutting off their primary source of revenue—the American tourist.33

In some border towns, the early closing hours had a dramatic impact. In Tijuana, for example, the liquor, gambling, and prostitution industries experienced a 50 percent decline in business.34 Yet the demands of American and Mexican moral reformers never trumped the economic interests of border communities and their national governments, particularly when the vice industry generated so much profit. As a result, the vice controls established by both governments, as historian Rachel St. John observes, were “conditional.”35 On both sides of the line, federal curfews were occasionally suspended at the request of local elites or for special events such as conventions, holiday celebrations, major horse races, or boxing matches in Mexico.36 American and Mexican officials also took particular care to enforce the vice laws in ways that would not disrupt the entry of presumably benign migrants such as merchants, workers, local residents, and nonvice tourists who promoted the economic development of the region.37

In this period, the Bureau of Immigration played a central role in ensuring the free flow of traffic through the border ports of entry. In so doing, immigration inspectors, as in World War I, remained highly responsive to the demands of border residents, despite the passage of the Volstead Act in 1919 and a series of new immigration measures in the 1920s. These measures included the Immigration Act of 1924, the Act of March 4, 1929, and the Border Patrol, which was created in 1924. Although Mexican nationals were exempted from the national origins quota system mandated by the Immigration Act of 1924, they remained subject to the qualitative restrictions stipulated in the Immigration Act of 1917. Border residents repeatedly protested its bans on the entry of those deemed mentally, physically, and morally undesirable; persons likely to become a public charge; persons suspected of entering in violation of the contract labor provisions; and persons unable to pass the literacy test. As in World War I, border communities charged that immigration restrictions, in general, hindered trade and good relations between the United States and Mexico.38 In further support of their cause, (p.42) they argued that very exclusion of Mexico from the 1924 quota laws underscored their point that national immigration laws had no place in the Southwest.39

While the bureau repeatedly rejected requests to waive the immigration laws altogether, correspondence from the 1920s highlights the agency’s willingness to implement old and new strategies to promote the development of the border economy.40 Immigration officials, as in World War I, exercised their administrative discretion to facilitate the crossing and recrossing of border residents. El Paso District Director Grover C. Wilmoth, for example, authorized the relaxation of the literacy test requirements and the quota provisions of the Immigration Act of 1924, permitting the entry of illiterate Mexican merchants and inadmissible Europeans for the sake of the local economy. In a similar spirit, he authorized the temporary entry of Mexican businessmen, Mexican government officials, and all foreigners personally known to immigration inspectors without any form of identification.41

Wilmoth also responded to the demands of border communities in novel ways. In 1928, the Nogales Chamber of Commerce complained that personnel changes at the border ports of entry left the impression that the immigration laws had changed, deterred border crossing, and, ultimately, hurt local business. As a solution, the chamber proposed the installation of an immigration inspector “familiar with local conditions and the people who most frequently cross and re-cross the line.”42 Even though Wilmoth would become one of the most vocal advocates of a strong border enforcement policy, as a young, new leader in the agency, he acceded to the demands of border businessmen, agreeing to place on line duty only those officers familiar with local circumstances and needs.43

The Battle for the Border

Figure 2.3 A Bureau of Immigration inspector looking into the window of a Pickwick Stage coach, Southern California, 1927.

Courtesy of US Citizenship and Immigration Services History Office and Library, Washington, DC.

For the benefit of local residents, the Bureau of Immigration in the Southwest built new ports of entry along the line so as to facilitate local border crossings. Residents from Texas to California pressured the Immigration Service for the creation of these ports, arguing that they were essential to the economic development of their towns.44 In Yuma, Arizona, for example, locals demanded a new port at San Luis “upon necessity for movement of Mexican laborers back and forth across the International boundary for agricultural purposes, and upon the revenue received by Yuma commercial interests from residents of the San Luis district.”45 Often, as was the case in Yuma, the bureau was unable to satisfy local demands for a new port due to insufficient border traffic, a lack of manpower, or both. Yet in lieu of official ports of entry, the agency responded to local concerns by creating various informal entry points along the border. For example, in San Ygnacio, Texas, the service operated what it referred to as an “unofficial crossing place” that permitted locals to complete their shopping north of the line.46 In Ysleta and Fort Hancock, Texas, the service opened what it termed “limited” or “modified” ports of entry. Manned by three federal officials representing Customs, Immigration, and Public Health, it served Mexican residents south of the (p.43) border who had regularly crossed north to purchase subsistence items.47 Finally, at established ports of entry such as Calexico, the bureau bolstered its inspection infrastructure by building a new gate. More important, the agency built the gate at a site favored by the local chamber of commerce.48 Whether informal or formal, the new border entry points served as vivid illustrations of the ways in which southwestern immigration inspectors literally constructed the border as a binational economic zone.

In the 1920s southwestern agency officials continued to facilitate the entry not only of visitors, dignitaries, and merchants, but also farmworkers, especially given the postwar growth of the agribusiness industry. Wilmoth, in particular, did everything in his power to ensure the seamless entry of Mexican laborers for the benefit of farmers and ranchers. In 1928, he openly admitted that his officers in Texas turned a blind eye to the illicit crossings of Mexican workers: “We have made no special effort to disturb these local crossers who for years have been accustomed to come to the American side to work.”49 He also actively discouraged immigration inspectors in Arizona from searching farms and ranches for (p.44) undocumented immigrants.50 All of his efforts underscored the agency’s role in fostering regional economic development.51

Yet for both border residents and officials, administrative grace had its limits. While southwestern immigration agents and local residents welcomed the temporary visits of tourists, merchants, and laborers, they did not demonstrate the same attitude toward immigrants, including Chinese, European, and Mexican nationals, who sought permanent domicile in the United States.52 Ethnic Chinese expelled from Mexico during the late 1920s and early 1930s, in particular, faced hostility north of the line, as both local residents and immigration officials advocated their deportation from the United States.53 Even border chambers of commerce, which had fought vigorously for the establishment of crossing policies, made a distinction between nonimmigrants and immigrants. For the benefit of the former, J. B. Bristol of the Nogales Chamber of Commerce requested the complete suspension of the immigration laws, but he did not support the loosening of inspection standards for Mexican immigrants.54 Moreover, he encouraged the expeditious deportation of Mexican nationals held in Arizona state penitentiaries, hospitals, and asylums because they allegedly constituted a burden on the public fisc.55 The bureau concurred with Bristol’s views and created a two-tiered inspection policy that welcomed the admission of businessmen, shoppers, and tourists but required comprehensive investigations for those seeking admission for permanent residence.56

In the 1920s, the Border Patrol would assume a major role in the enforcement of the immigration laws along the US–Mexico border.57 As the agency’s inspection force manned the ports of entry, the Border Patrol would monitor the spaces between and beyond them. Yet the agency’s legal innovations, especially its border crossing policies, generated quandaries for the Border Patrol. The unit discovered that the constant protests of border residents and the confusion surrounding the repeated modifications to the immigration laws created a sense of frustration among some immigration inspectors. At other border ports of entry, Border Patrol officers found that immigration officials ceased their inspection duties altogether. These lax inspections undermined the work of the Patrol, as one official observed, “as the matter then stood aliens entered the United States without inspection through the regular crossing places and afterwards on the same date were apprehended by patrol inspectors and brought to the immigration office for return to Mexico.”58 In these cases, federal courts exposed the weaknesses of the agency’s enforcement capacities by refusing to uphold prosecutions for unauthorized entry when those entries resulted from the dereliction of the immigration inspection force.59

Confronted by these social and institutional obstacles to immigration law enforcement, the Border Patrol had a number of incentives to devise a set of enforcement practices that took place not only at the international boundary but (p.45) also far beyond it. While the orientation of immigration inspectors at the border ports of entry might have been local, the Border Patrol, during the twentieth century, developed a vision of border enforcement that would become national in scope. In the process, the unit would reconstruct the border once again.

When it was created in 1924, the Border Patrol was not new. Wartime concerns about border security highlighted the importance of border policing; as a result, US military, customs, and immigration officials launched their own respective border patrol units during World War I. Decades earlier in 1904, the agency created the Mounted Guard, a mobile force charged with patrolling the borders and the highways and rail lines that ran beyond them, that was the direct precursor of the Immigration Border Patrol.60 While the Mounted Guard focused on restricting the flow of Chinese immigrants crossing the nation’s borders,61 the Border Patrol also pursued European immigrants (who, through surreptitious border crossings, sought to avoid the qualitative restrictions of the 1917 immigration act or the quota systems of the 1921 and 1924 immigration acts) and Mexican immigrants (whose entry was limited by the provisions of the 1917 law and the visa requirements of the 1924 immigration act).

Despite the resemblances between the Border Patrol and earlier border policing units, the creation of the Border Patrol marked an important turning point in American immigration law enforcement. The early weaknesses of this new unit led it to seek an unprecedented expansion in its authority to pursue and apprehend unwanted immigrants. In the process, Border Patrol officials in the Southwest played the primary role in reshaping the policies and, in turn, the statutes pertaining to immigration law enforcement. In the most basic terms, these statutes extended the jurisdiction of the Border Patrol, authorizing it to monitor not only the international boundaries but also the interior spaces, both public and private, of the nation. Construed more broadly, these legislative reforms transformed the border from a geopolitical dividing line into a space in which the Border Patrol could justify under law a highly aggressive approach to immigration law enforcement.

In the 1920s, the Border Patrol was beset by liabilities, whether legal, institutional, or social. The unit’s very creation was not momentous but instead seemed like an afterthought as Congress slipped the authorization for the Patrol into an appropriations act that said virtually nothing about its mission, organization, or operational procedures.62 The Appropriations Act of May 28, 1924 simply allocated one million dollars for the creation of a border patrol to enforce “Section 8 of the Immigration Act of February 5, 1917 (39 Stat. 874), which prohibited smuggling, harboring, concealing, or assisting an alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or reside in the United States.”63 Given the vagueness of the statute, the Border Patrol struggled to form a new, cohesive, and effective policing unit.

(p.46) When the first part of the appropriation was made available in June 1924, the bureau was given only three weeks to get the force in the field—issuing rules and regulations, purchasing supplies, and hiring and assigning men. Since there was not enough time to draft and administer a civil service exam specifically for Border Patrol officers, the first recruits were selected from a list of those men who had passed the civil service exams for railroad mail clerks and immigration inspectors.64 Others were former members of the Mounted Guard (which was dissolved upon the creation of the Border Patrol), who had the most experience conducting border surveillance.65 The first Border Patrol force was composed of 450 men, of whom approximately 250 were stationed on the Mexican border.66

These initial hires from the railway postal registers proved unqualified and unaccustomed to working long hours in harsh outdoor conditions. Thus the bureau advertised for new officers and attempted to recruit a different type of man:

The patrol, which is a branch of the immigration service will accept no man unless he is big and strong and fearless. He must have experience in cowboy work, tracking and general border occupations and he must have had service in some highly organized police unit or in some regular army.67

Furthermore, the ad required three years’ experience in ranch work along the border since the primary duty of the officers would be to ride along the line on horseback. As a result, the Immigration Service “hired former cowboys, skilled workers, and small ranchers as its first patrol officers in the Mexican border district.”68 Many of them also had former military experience, having served in the armed forces during World War I, or police experience as former Texas Rangers.69 Within a few years, the force grew to 1,000 patrol officers.

In fulfilling their enforcement duties, the first Patrol officers obtained little guidance from the original Border Patrol statute or their peers and supervisors in the Bureau of Immigration.70 Describing his first day of work in Del Rio, Texas on July 28, 1924, officer Wesley Stiles found that “no one knew what we were supposed to do or how we were supposed to do it.”71 When the new recruits asked for instructions, they were told to “catch aliens.” Stiles observed that they caught a few “just by main strength and awkwardness,” but for the most part, “all of August we didn’t do anything, we just wandered around town here.” By October, several of his fellow officers decided to take an unauthorized vacation.72 Meanwhile, Border Patrol officers on the Canadian border found themselves similarly perplexed; as a result, one official drafted his own Border Patrol procedures regarding pursuit strategies, arrests, and detentions and sent them to the commissioner general for his review.73

(p.47) The early Border Patrol recruits were also hampered by a lack of resources. They were provided with what Stiles laughingly referred to as “old relics” for weapons. Nor were they given uniforms or badges, which made it difficult for them to assert their authority; Stiles noted, “we didn’t have a darn thing to show who we were or what we were supposed to do … [no one in the general public] knew what it was all about.”74 No Border Patrol school or training program existed. “None of us,” Stiles admitted, “spoke any Spanish to speak of and somebody suggested, we’d better get you a speaking dictionary … But anyway, we didn’t have any schooling. No one knew what to do. That was the big trouble.” Stiles also recounted that he and his fellow recruits had no place to live, so “the sheriff gave us a place to sleep in the jail.” Having nothing to eat, “we finally made arrangements to eat with E Troop of the Fifth Cavalry. They charged us I believe it was $.35 a meal to eat there.” Also, in its first year, Patrol officers had no means of transportation and had to conduct patrols on foot.

Conditions improved somewhat by the following year; Stiles received a badge, uniform, and monthly fuel allowance of thirteen dollars.75 By then the government also purchased approximately one vehicle for every five officers.76 Stiles and his partner were among those who did not receive a government vehicle, so they bought an automobile together to use when on duty. Yet at their office in Nogales, use of the car was limited to 1,000 miles per month or an average of 33 miles per day so as to limit government fuel reimbursements. An inspection of the Nogales Border Patrol operations noted, “to limit the use of a car in this manner simply limits the activities of the patrol inspectors.” When these officers exceeded the mileage allowance, they resorted to using their own cars or simply patrolling on foot.77

As a result of these initial problems, 25 percent of the new hires left in the first few months.78 For some of those who remained the job offered social mobility, especially since the Border Patrol paid a decent salary at the time.79 In the early days, it was also a job that attracted men who had a love of adventure. In his diary, Officer Dogie Wright observed, “Laying in on a wet river bank or in a wet cotton field is one thing that will separate the men from the boys.”80 In 1927, the commissioner general characterized Patrol officers as follows: “The border patrol is a young man’s organization; it appeals strongly to the lover of the big outdoors … the business upon which it is engaged calls for manhood, stamina, versatility, and resourcefulness in the highest degree.”81

It was this very love of adventure, however, that contributed to the lack of professionalism within the unit. Corruption was noticeably acute in the Texas offices of the Border Patrol. During an inspection tour of these offices, Clifford Alan Perkins discovered inspectors aiding and abetting immigrant and liquor smugglers.82 In addition, he found Border Patrol officers stealing from undocumented European immigrants prior to their arrest.83 Early recruits fashioned (p.48) themselves after the Texas Rangers and were reported “drinking on the job, reading and socializing with friends while on duty, reckless driving, rumor-mongering, and accepting gratuities from aliens.”84 The presence of ex-Rangers, well known for their violent vigilante campaigns against ethnic Mexicans, on the Border Patrol force also fostered an aggressive orientation toward the pursuit and apprehension of Mexican immigrants.85 According to historian Mae Ngai, these attitudes resulted in the arrest of “nearly five times as many suspected illegal aliens in the Mexican border area as it did in the Canadian border area.”86

Yet in its first year of operation, Border Patrol officers recognized that their immigration enforcement capacities were hamstrung by the unit’s own enabling statute: the Appropriations Act of May 28, 1924 gave them no authority to pursue undocumented immigrants. Upon his discovery of this problem, the commissioner general wrote, “If the Bureau is right in its understanding of the matter, the border patrols are now without the slightest authority to stop a vehicle crossing the border for the purpose of search, or otherwise, nor can they legally prevent the entry of an alien in violation of law.”87 Under the statute, immigration officials only possessed the authority to apprehend immigrant smugglers or those offering assistance to individuals attempting to cross the line without inspection.88 In this situation, Border Patrol officers exercised those powers available to them. First, they pursued immigrant smugglers under the original Border Patrol act. Second, even though the Border Patrol could not pursue an individual undocumented immigrant under the immigration laws, they could do so under the Passport Act of 1918, which rendered entry without inspection a criminal act.89 Finally, officers exercised the common law right of peace officers and citizens to arrest on sight (that is, without warrant) those they witnessed in the commission of a crime (specifically those infractions defined as felonies under law).90

Due to these institutional weaknesses, the Border Patrol, in its first year, devoted little time to immigration law enforcement and instead focused its efforts on Prohibition enforcement.91 Southwestern Border Patrol officers enjoyed the adventure, publicity, and glamour surrounding chases and gun fights with rum-runners. Moreover, the Patrol discovered that they had more legal authority to arrest a liquor smuggler than an undocumented immigrant. Under the common law, Patrol officers arrested hundreds of liquor smugglers, seized just as many cars, and destroyed (under the terms of the Volstead Act) thousands of dollars worth of contraband.92 In enforcing the Prohibition laws, the Patrol “gained a reputation as a fast-shooting and deadly unit.”93 Having discovered that liquor smugglers were often armed and dangerous, Border Patrol officers responded with an equal measure of force.94 As a result, violence pervaded the early years of the Patrol; until the end of Prohibition in 1933, the Border Patrol in the El Paso district averaged one gunfight every seventeen days.95 In the long term, the (p.49) Patrol’s experiences with Prohibition law enforcement set a precedent for its subsequent immigration enforcement operations.96

The aggression with which the Patrol administered the Volstead Act caught the attention of agency administrators and legislators. Indeed, the Bureau of Immigration expressed concern that Border Patrol officers, lacking the statutory authority to pursue liquor smugglers and immigrants, exposed themselves and the agency to the risk of civil suits initiated by citizens.97 As the commissioner general wrote:

They [the Border Patrol] possess no more powers than does the ordinary citizen, who can exercise police powers only at the request of a duly constituted officer of the law, or to prevent the commission of a felony. Should they, in attempting to prevent a violation of the immigration laws, attempt to hold up a person who offers resistance, or even should a person attempting to cross the border, even though he did not offer resistance, bring action for assault against a patrol inspector who placed any restraint upon him, it is believed that the officer would be guilty of assault, and called upon to defend his action, as under their present title.98

Thus, agency officials and legislators sought an amendment to the original Border Patrol act in order to encourage Border Patrol officers to exercise caution in their pursuit of citizen violators of the Volstead Act.99 Even more important, bureau officials sought to shift the focus of the unit’s operations from Prohibition enforcement to immigration law enforcement. In short, at the same time the new legislation would limit the repercussions of Border Patrol practices against United States citizens, it also would enhance the power of the Border Patrol vis-à-vis immigrants.

The new Border Patrol law, the Act of February 27, 1925, would fill the gap left by the original legislation by giving the unit the power to pursue undocumented immigrants at the border and, eventually, beyond it.100 As one member of Congress recalled:

If you will remember the history of this thing [the Border Patrol], we set up the Border Patrol by appropriation, and not by a law. Then when we found out that we could not do much with it, we went to the Senate with something written in this committee and put in a rider on the appropriation [the Act of February 27, 1925].101

The new act clarified the Patrol’s status as an immigration enforcement agency. It conferred upon Bureau of Immigration officials the “power without warrant,”

(1) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or (p.50) regulation made in pursuance of law regulating the admission of aliens, and to take such alien immediately for examination before an immigrant inspector or other official having authority to examine aliens as to their right to admission to the United States, and (2) to board and search for aliens any vessel within the territorial waters of the United States, railway car, conveyance, or vehicle, in which he believes aliens are being brought in to the United States; and such employee shall have power to execute any warrant or other process issued by any officer under any law regulating the admission, exclusion, or expulsion of aliens.102

More specifically, the act expanded the bureau’s authority with respect to immigration law violators, allowing it to pursue foreign seamen, individuals who had entered without inspection, and smugglers.103 In addition, it gave the Border Patrol the authority to enforce the immigration laws along the nation’s coastlines.104 Finally, the measure conferred upon the unit the power to arrest without warrant those immigrants attempting to enter the United States in violation of any provision of the immigration laws.

Like its predecessor, the new Border Patrol law was slipped into an appropriations bill at the last minute, and, until its revision in 1946, the act served as the primary legislative language spelling out the scope of authority of the organization. Despite the brevity of the new act, its provisions, particularly those regarding warrantless searches and seizures, conferred upon the Border Patrol sweeping operational powers between the ports of entry. These powers were so broad that in the 1930s, legal reformers and scholars raised questions regarding the constitutionality of the warrantless search, seizure, and arrest provisions of the act; more specifically, they asked whether the statute violated the Fourth Amendment prohibition against unreasonable searches and seizures.105 Yet in 1924, there was virtually no debate in Congress regarding the measure, and the House and Senate committees on immigration unanimously approved the bill prior to its introduction in the House.106 A few legislators recognized that administrative officials might rely on its warrantless search and arrest provisions to abuse their authority. Yet in response to these concerns, Senator Reed of Pennsylvania reassured the membership that the act applied only to noncitizens in the process of crossing the border, not to citizens or immigrants already present in the United States. He stated:

It applies only to the arrest of aliens in the act of entering the country. There has been some doubt about the authority of those men to make arrests. We want to make it very clear that they have no right to make arrest except on sight of a violation of the immigration law as to illegal (p.51) entry. They have no right to go into an interior city and pick up aliens in the street and arrest them, but it is just at the border where they are patrolling that we want them to have this authority… . It must be in sight of the officer himself; otherwise he has to get a warrant. We are all on the alert against granting too much power to these officials to act without warrant.107

Under the Act of February 27, 1925, the Border Patrol wielded a tremendous amount of power to conduct warrantless searches, seizures, and arrests at the border. Conducted here, warrantless searches and seizures could be justified as a legitimate exercise of national sovereignty.

At the international boundaries and coastlines, the authority of the Border Patrol derived in part from long-standing legal doctrines that exempted the unit, the Bureau of Immigration, and other federal agencies from the Fourth Amendment guarantees against unreasonable searches and seizures. Since the nation’s founding, Congress and the courts have taken this exception as a given, conferring upon customs officials in 1789 the power to search without warrant “any ship or vessel” entering the United States.108 Not only did this exception apply to ships and vessels, but also to persons. In 1925 the Supreme Court, in Carroll v. United States, 267 US 132,109 held that “travelers may be … stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”110 Until 1973, the courts upheld the statute (the Act of February 27, 1925 and, later, its amendment, the Act of August 7, 1946) as sufficient authority for Border Patrol operations at the international line, creating what contemporary legal scholars call a “Fourth Amendment exemption” or the “border exception” to the Fourth Amendment.111

In the debates over the Act of February 27, 1925, Congress did not sanction the untrammeled exercise of searches, seizures, and arrests without warrant vis-à-vis immigrants. Yet even though the drafters of the law promised the exercise of prudence, the Border Patrol used it to justify and fight for the widest possible operational capacities beyond the border. Indeed, the very language of the act granted the Patrol a great deal of latitude in its pursuit of unauthorized immigrants. In 1930, Commissioner General Hull acknowledged that the brevity of the legislation raised more questions than it settled and noted that more congressional direction was desired.112 Assistant Commissioner General Harris acknowledged that although the authority of Border Patrol officers to make arrests without warrant at the nation’s borders was clear, the status of that authority became “more complicated” the further the officer traveled from the international line.113

(p.52) The Border Patrol frequently resolved these so-called complications in its favor by relying on its own interpretation of the statute. Thus, while a literal reading of the law would suggest that a Border Patrol official had to witness an illicit crossing prior to engaging in a pursuit or arrest, the unit chose a broader interpretation. On the Canadian border, District Director Alfred Hampton noted that such a literal reading of the statute was simply incorrect; he advised his employees:

You ask if your assumption is correct, that under Clause (1), the phrase “who in his presence or view” is intended to be taken literally, thus only empowering patrol inspectors to make arrests without Departmental warrants in those cases in which they have actually witnessed an illegal entry, or in which such entry was made in their presence. While the language quoted is fairly specific, I do not believe you are correct in placing such a literal interpretation upon same.114

In his testimony before the House Committee on Immigration and Naturalization, Commissioner General Harry Hull acknowledged that Border Patrol officers conducted pursuits north of the border without a warrant of arrest. Even though he doubted the legality of this practice, he justified Border Patrol interior operations without a warrant because “they find under the general law that an officer has a right to arrest a lawbreaker.” In theory, Hull continued, the Border Patrol was to be more sensitive about exceeding their legal authority in pursuing immigrants. In practice, Hull concluded, “generally speaking, though, the people do not object to border patrol men going back if they are in pursuit of somebody, even going back 50 or 100 miles.”115

As Hull defended the Patrol’s interior operations by recourse to a general notion of lawbreaking, others relied on the ambiguity in the new statute, stretching the meaning of the phrase “entering or attempting to enter the United States” to justify warrantless searches, seizures, and arrests miles beyond the border. As a source of authority for its interpretation of the statute, the Patrol cited to the definition of “entry” in Lew Moy v. United States, 237 Fed. 50 (1916), a decision of a federal court in Texas. In Lew Moy, the court held, “the expression ‘entering the United States’ has been construed by the courts to mean that an alien is engaged in the act of entering until he reaches his intended destination.”116 While bureau officials later doubted the sufficiency of this case as authority for Border Patrol practices, Border Patrol officers in the 1920s devised the theory that “entry” was not complete as long as the individual was still in transit and had not reached his final destination, even if that destination was hundreds of miles from the border.

The Patrol argued that sheer practical necessity, as well as the Act of February 27, 1925, justified its operations beyond the border. In the Patrol’s most ideal (p.53) enforcement scenario, individuals attempting to cross the line without a formal immigration inspection would be spotted by officers and apprehended straightaway. But the bureau and the Patrol long recognized the impossibility of providing enough manpower and resources along the 2,000-mile long border to accomplish this feat; thus, for example, by 1928, the Border Patrol in the El Paso district monitored an 1145-mile stretch of border with approximately 100 men and 39 vehicles. The sparseness of the force led Commissioner Hull to observe, “there are places out in the mountains where nobody can get through and, of course, we have no men there.”117 Border Patrol efforts to seal the border to unwanted entries were also rendered more difficult by the sheer volume of border crossings that occurred each day.118 The Patrol faced additional obstacles north of line, observing that roads, both paved and unimproved, and railways expedited the migration of undocumented individuals to the nation’s interior.119 Moreover, they noted that industrial centers and farms situated along these major rail lines and roadways served as destinations for out-of-status migrants of all nationalities.120 Together, roads, transportation systems, and workplaces constituted (to borrow a term from historian Samuel Truett) a fugitive landscape or locales that offered undocumented immigrants refuge from the surveillance of the state.121 From the perspective of the Border Patrol, effective enforcement, would require a mobile immigration unit to monitor multiple sites north of the line as well as the numerous entry points along the border.122

In order to gain control of this vast landscape, the Border Patrol devised a strategy of placing officers at the line and beyond it, creating what they called a “double line of defense” or a “border zone.”123 The precise location of officers detailed at points north of the border depended on the specific topographical features of each region. In border towns such as Nogales, Naco, and Douglas, officers were stationed close to the international line. But because many local roads led from the border to Tucson, officers were also placed at strategic spots between the line and the city. In West Texas, officers were posted in El Paso and at known crossing points on the Rio Grande. And in the Big Bend district, officers were assigned to patrol the tracks of the Southern Pacific, which migrants had to cross in order to proceed north.

Within this area north of the border, the Border Patrol was given a free hand to operate. Jurisdictional boundaries between Border Patrol districts were fluid; tentative Patrol agents were encouraged to cross them in pursuit of undocumented immigrants and smugglers.124 As one supervisory official observed, “the maximum efficiency cannot be obtained from the border patrol unless it is constituted as a swift moving body.”125 To facilitate the mobility of its officers, Border Patrol leaders routinely wrote to the central office for more cars, specifically Chevrolets, which, by the 1920s, proved to be faster and more durable than the latest Fords.126 And those who spent their days at a Border Patrol inspection (p.54) station were chastised for “dig[ging] in” and becoming too familiar with the locals.127

By requiring Border Patrol officers to relocate on a regular basis, the bureau further stressed the importance of the unit’s mobility. In addition, Border Patrol inspection stations, typically located north of the international boundary, were not fixed. Instead, these stations were opened, closed, and repositioned in response to the movements of smugglers and, more commonly, to the changes in the border transportation network. Tracking the construction of new transborder highways, railways, and bridges, the semiannual reports of the Border Patrol often read like transportation trade journals.128 More important, these reports reveal that Border Patrol inspection stations themselves were impermanent, closing when a rail line or highway became defunct;129 opening with the construction of a new road, rail, or bridge that spanned the border;130 and moving in closer proximity to the major rails and highways of a specific region.131 By increasing its mobility, the Border Patrol sought to overcome its legal, logistical, and social challenges and to solidify its vision of the border as a zone for the policing of undocumented immigrants.

Even though the Act of February 27, 1925 enhanced the powers of the Border Patrol, the new statute did not settle debates about the scope of the unit’s authority and even its very existence. For the remainder of the decade, the Border Patrol faced multiple challenges to its broad vision of border enforcement. As the unit sought to create a policing zone along the US–Mexico border, local residents, border farmers, and their allies in Congress continued to defend their economic interests by pressing for an open border regime. Just as they had challenged the enforcement work of immigration inspectors at the border ports of entry, border residents resisted the development of a strong Border Patrol. At the same time, the Border Patrol faced serious opposition from moral reformers who proposed to eliminate the unit altogether. Seeking to strengthen the enforcement of the Volstead Act, prohibitionists lobbied Congress for the consolidation of the Immigration and Customs Border Patrols into a single organization. Charged with enforcing a variety of federal laws along the nation’s international boundaries, the jurisdiction of the new consolidated force would no longer encompass spaces within the nation’s interior but instead would be limited to the international boundaries themselves.

In response to these competing demands for open and closed border policies, southwestern agency officials turned to the law once again. To cope with the complaints of border businesses, local Border Patrol officials relied on their administrative discretion and developed a legalization process or what is now referred to as an adjustment of status procedure. Soon after its creation, Congress, with the support of President Herbert Hoover, sanctioned (p.55) the procedure, passing the Registry of Aliens Act only two days before the Act of March 4, 1929, a measure that created the first criminal penalties for undocumented immigration.132 Despite its irregular and local origins, the adjustment of status procedure became a regular feature of agency enforcement operations well into the twenty-first century. Meanwhile, in Congress, southwestern bureau officials fought to preserve the very existence of the mobile unit during the consolidation hearings. They not only succeeded in keeping the Immigration Border Patrol intact and distinct from the Customs Border Patrol, they also used the congressional debates to articulate and defend an aggressive conception of border enforcement and an expansive vision of the border as policing zone.

With the emergence of the Border Patrol, border residents applied the same arguments and tactics that they had deployed against the immigration inspection force at the border ports of entry, ceaselessly pressuring both divisions of the agency to relax their enforcement efforts vis-à-vis Mexican migrants. Exemplifying locals’ resentment of the Border Patrol, Texas congressman John Nance Garner advised the Patrol that “he had very little use for the work the Patrol was doing and would make the most of every complaint [from farmers and ranchers] to embarrass Republican incumbents in Washington.”133 In many cases border residents simply ignored the new immigration laws as well as the Border Patrol, opting to abide by long-standing custom with respect to the crossing and recrossing of Mexican workers along the border, as San Antonio District Director William A. Whalen explained in 1929:

Since the first settlers broke the ground and started farming and ranching in the vicinity of the Mexican border they have hired and fired Mexican laborers indiscriminately, without reference to the legality of the residence of the aliens in the United States. This practice has become so well grounded that it has been and in some cases still is difficult to impress upon many of the employers that there is an immigration law and that Mexican aliens are subject to its provisions.134

Protests against the Border Patrol were not limited to southwestern growers; representatives of border chambers of commerce from Texas to California who wanted to maximize the benefits of the transnational economic boom routinely argued that Border Patrol operations hurt the economies of their communities. As a solution, local businesses demanded that the Border Patrol suspend its operations in border towns. In some cases border officials even proposed the relocation of the international boundary itself, liberating American border cities from the alleged restraints on trade created by the Immigration Border Patrol.135

(p.56) Like their counterparts in the immigration inspection force, early Border Patrol officials proved highly responsive to the complaints of border residents. As political appointees, chief patrol inspectors in San Antonio, Del Rio, and Laredo addressed the complaints of local farmers and ranchers by relaxing their enforcement efforts.136 The Patrol stationed at Brownsville, for example, set a daily quota on the arrest of out-of-status Mexicans; in a similar vein, in the San Antonio district, Whalen encouraged Patrol officers to cut back on their enforcement activities.137 Other agents made informal agreements with farmers to apprehend Mexican laborers only when the harvest season had ended.138 Finally, in response to the bold—yet persistent—calls for the relocation of the international boundary, Wilmoth instructed Border Patrol officers to operate outside the city limits of Nogales, suspending all enforcement work within the town itself. Even though central office officials recognized the importance of the directive to the border economy, they also observed that Wilmoth had virtually yielded the administration of the immigration laws to local interests.139

The Border Patrol’s own institutional weaknesses, as well as the needs of the local economy, informed one of the unit’s most significant legal inventions. In 1926, Calexico Border Patrol Supervisor I. F. Wixon devised a strategy that served as a precursor to the adjustment of status programs that would become a core and ongoing feature of immigration law enforcement. Fashioned in conjunction with growers and the Calexico Chamber of Commerce, Wixon’s regularization plan required employers to withhold twenty dollars from the wages of each undocumented worker; this sum would be put toward the cost of a visa application and payment of the head tax.140 In return, workers received an identification card that exempted them from apprehension and removal by Border Patrol officers.141 Historian Mark Reisler reports that in less than six months, 6,500 Mexican workers in the Imperial Valley registered under the legalization program.142 Despite its success, Wixon characterized the program as a compromise. In his mind, it reflected the agency’s inability to deter illicit entries and, more broadly, manage the task of border enforcement on its own; as a result, his legalization plan, like all subsequent adjustment of status plans, divided the burdens of immigration law enforcement among employers, workers, and the agency.143

Following the local precedent established by Wixon, federal officials created a formal legalization procedure three years later. Under the Registry of Aliens Act, passed on March 2, 1929, Congress authorized the adjustment of status of those undocumented individuals who had lived in the United States continuously prior to June 3, 1921 and could fulfill the requirements of a moral character test.144 The measure was supported not only by southwestern agribusiness interests in Congress but also by President Hoover, who did everything he could to guarantee growers a steady supply of workers.145 Upon passage of the law, (p.57) Hoover instructed immigration Commissioner Hull to issue what were lenient evidentiary requirements—two sworn statements from credible citizens—for the character test. Local farmers and Mexican consuls subsequently pursued an aggressive publicity campaign to inform Mexican workers of the legalization procedure. The law ultimately allowed thousands of undocumented immigrants to adjust their status and remain in the United States.146

These local and federal interventions on behalf of border businesses inspired the ire of nativists; indeed, anti-immigration forces were livid about the passage of the Act of March 2, 1929.147 Congressman John Box, a long-standing opponent of Mexican immigration and vocal sponsor of several Mexican quota bills, observed the sheer contradiction in the passage of a bill legalizing the entry of Mexican nationals (the Act of March 2, 1929) and a bill that created criminal penalties for unauthorized entry (the Act of March 4, 1929) within days of each other. In congressional debates concerning the Act of March 4, 1929, Box declared, “This last bill that you have just passed provides that it is a felony to do the very thing for which you grant citizenship in the other bill. For having committed a felony you give him the reward of citizenship.”148 The legalization bill, Box argued, undermined the restrictive intent behind the nation’s immigration laws; repeatedly refusing to yield the floor, Box continued, “Its chief purpose is to pardon and reward the illegal entry of all who smuggled themselves into the United States prior to June 3, 1921, and all who have illegally remained after the expiration of the period of their temporary visits.”149

Nativist legislators also charged that Congress had rendered impotent the Act of March 4, 1929 by failing to provide an adequate appropriation for its enforcement.150 During congressional debates over the Act of March 4, 1929, Congressman Arthur Free of California argued, “Unless you back it [Act of March 4, 1929] up with the money for enforcement and the protection of your borders it will not mean a thing… . Why pass another law when we don’t enforce those we already have on our statute books?”151 Some legislators proposed the consolidation of the Immigration Border Patrol with the Customs border force as a cost effective way of policing the border.152 Others questioned why Congress did not pass a Mexican immigration quota such as that proposed by Congressman Box.153 New York Congressman Fiorello LaGuardia responded, “Because the influence of the sugar-beet growers and the railroads is too strong.”154

As Congress anticipated, immigration officials in the Southwest reported that they were unable to enforce the Act of March 4, 1929 due to a lack of resources and institutional support. Without its own detention facilities, the service had to pay local, state, and federal prisons for the detention and maintenance of unauthorized immigrants while they awaited trial. In addition, the agency discovered that judges and federal prosecutors offered little support for its enforcement mandate. In the Southwest, judges often issued lenient sentences (cognizant that (p.58) deportations would follow any time served), which diluted the deterrent effect of the law.155 In order to save their own limited appropriations, federal prosecutors in Arizona and Texas decided to stop indicting immigrants under the Act of March 4, 1929; they specifically observed that the costs of pursuing such cases outweighed the penalties, usually a one-day prison sentence. Local immigration officials in Arizona and Texas discontinued their own enforcement of the act.156 By 1933, facing Depression-era budget cuts, federal prosecutors and southwestern immigration officials agreed to limit prosecutions to the most aggravated cases, specifically to those undocumented immigrants with prior criminal records.157 Although the bureau chose not to pursue criminal prosecutions in the remaining cases, it, again to cut costs, handled these cases through the voluntary departure procedure, which required immigrants to leave the country at their own expense.158

Because of the lack of consensus at the federal and regional levels for strong border enforcement, the agency in the Southwest devoted just as much if not more time to regularizing the status of Mexican immigrants under the Act of March 2, 1929 as it did to the prosecution of undocumented migrants under the Act of March 4, 1929. An El Paso press report made the following observations on the activity of local agency officials:

It [a report of Grover C. Wilmoth] demonstrates conclusively that the department is not carrying on a drive to rid the southwest of alien labor. On the contrary, the department is cooperating with chambers of commerce and cooperative organizations to legally help supply such labor as is needed.159

In his own response to growers’ complaints about the Border Patrol and its apprehensions of their workers, Wilmoth reported to the commissioner general, “it must be conceded that there is much to be said from their point of view.”160

Seeking to shift the unit’s focus from immigration law enforcement to Prohibition enforcement, moral reformers joined the chorus of opposition to the Border Patrol. Thus, as Border Patrol officials hailed the Act of February 27, 1925 as a victory, Prohibition advocates argued that it stripped Immigration Border Patrol officers of any statutory authority to pursue liquor smugglers and weakened Prohibition enforcement on the border.161 Throughout the 1920s, “dry” forces would present a number of bills proposing the consolidation of the Immigration and Customs Border Patrols in an effort to bolster the weak enforcement machinery of the Volstead Act.162 They also argued that this combined force would eliminate the duplication of effort between the units, cut costs, and promote the enforcement of all federal laws along the borders. The new border patrol would operate as a general police force for the border analogous (p.59) to the Royal Canadian Mounted Guard.163 Opponents of the consolidation bills charged that prohibitionists were attempting to create a “dry army” along the nation’s borders.164 Meanwhile, defenders of the immigration agency, particularly labor unions, averred that the reorganization measures would deprive the bureau of the resources critical to immigration law enforcement.165 Offering a succinct formulation of the choice facing Congress, Representative Carl Hayden of Arizona, who supported the Immigration Border Patrol, exhorted, “there must be a determination as to what is the most important duty. The man ought to come before the dollar. It is more important to keep aliens out of the United States than it is to collect some revenue.”166

During these congressional debates, Border Patrol and Bureau of Immigration officials acknowledged the fiscal and law enforcement advantages of combining the various federal agencies on the line. But they generally objected to the reorganization bills because they would fundamentally transform Border Patrol operational strategy and mission. These measures, particularly the 1930 consolidation bill, proposed not only the creation of a general police force, but also a border force that operated at the international boundary.167 The drafters of the 1930 bill argued that these operational limits would deter the new Border Patrol from inconveniencing legitimate travelers and US citizens with searches and seizures far beyond the border.168 Describing the advantages of a consolidated patrol, Representative Mills of New York noted, “you will not have a border patrol operating 20 miles inside the United States. You will have a border patrol where it belongs, and that is on the border.”169 In a similar vein, the chairman of the House Rules Committee observed, “There will be no one chasing people for 15, 25 or 40 miles from the border… . That is the idea; that the determination of whether persons or goods come in lawfully shall, as far as possible, start and end at the border.”170 In addition, this bill would further preclude the need for Border Patrol operations in the interior by constructing additional ports of entry along the international boundary.171

As in the debates over the Act of February 27, 1925, the Border Patrol remained wary about violating the rights of US citizens.172 Wilmoth worried that one day an immigration officer would mistakenly arrest an “American citizen of foreign appearance” and that the incident would generate publicity causing the service “irreparable injury.”173 Yet at the same time, the bureau sought the broadest operational powers in its pursuit of undocumented immigrants.174 Border Patrol officials and their supporters testified before Congress that limiting Patrol operations to the international boundaries would impede any effective immigration law enforcement, stating that “the closer to the border the officers operate … the larger the force required for equal results, since the points of convergence of the numerous roads and trails leading from the border … can be covered with fewer men than would be required” on the (p.60) line.175 Commissioner General Hull emphasized the importance of flexibility in Border Patrol operations:

Now, if we are going to have a unified patrol, and it is going to be stationed right on the line and traverse that line, we are going to have an enormous leakage … We are going to have more smuggling than we have ever had before. The proper strategy of effective operation without excessive cost is not to attempt to build a hog-proof fence on the border; to do that would necessitate placing them within sight of each other. Flexibility, mobility, resourcefulness, in short, brains is the real solution. There is no other way.176

Ultimately, due to some controversial features of the bill and disagreements about which department (Treasury, Justice, or Labor) ought to supervise the new unified patrol, the 1930 consolidation bill did not pass.177

The reorganization debates presented Border Patrol officials and their supporters with the opportunity to defend the organization and argue for even greater authority under the Act of February 27, 1925.178 Through these proposals, the Patrol sought to transform the fugitive landscapes of the borderlands, specifically its roads and private dwellings, into a legal jurisdiction in which it exercised sweeping powers to pursue undocumented immigrants. In 1928, Congressman Box proposed a bill to revise the language of the Act of February 27, 1925, allowing vehicular searches when officers believed that such vehicles were transporting undocumented immigrants, regardless of the driver’s intent to violate the law or knowledge of the alienage status of the passengers.179 In addition, the bill authorized the Patrol to make arrests and to stop and search vehicles not only in the act of crossing the border, but also beyond it, “in the immediate vicinity of the coast or land borders upon probable cuase [sic] for believing that they contain aliens making good or attempting to make good their entry into the United States in violation of law.”180

Testifying before Congress, District Director Wilmoth pressed the members to augment the Patrol’s ability to pursue undocumented immigrants on private property.181 Agency officials had the authority to enter private property if they were in hot pursuit of individuals whom they had witnessed crossing the line in violation of the immigration laws. They were also authorized to enter private property with the consent of the property owner in order to arrest an undocumented immigrant under warrant. In both cases, however, officers were not permitted to make a general search of the premises for other out-of-status individuals.182 To further justify the Patrol’s need for a general search power, Wilmoth argued that if customs officials had the authority to obtain warrants to search for illegal contraband on private property, the Patrol ought to have an (p.61) analogous statutory authority to procure warrants to search for undocumented immigrants on private property.183

Although these measures did not pass, by the 1940s the southwestern leaders of the Border Patrol would help to draft legislation that enabled the unit to expand the border zone to both public and private spaces far north of the international boundary. In the meantime, it became standard operating procedure for the Border Patrol to interpret its legal authority to pursue and apprehend undocumented immigrants in the broadest terms possible. In a 1944 Border Patrol training manual, Wilmoth instructed new recruits that

the expression “entering the United States” as used in this statute is not to be given a narrow construction. The purport of the ruling of the Circuit Court of Appeals for the Fifth Circuit in the case of Lew Moy et al. vs. the United States (273 Fed. 50) [sic], is that an alien is entering the United States until he reaches his interior destination. It is understood that other courts have held to the same effect. In the Lew Moy case the aliens involved were taken into custody as far in the interior as Las Vegas, New Mexico, some them being destined to Rock Springs, Wyoming.184

Heeding Wilmoth’s directive, Border Patrol officials exercised their powers under the Act of February 27, 1925 in highly aggressive ways. An internal investigation found Border Patrol officers adopting a strategy known as “putting a man in transit.” In this scenario, officers would lure out-of-status immigrants away from their place of employment or home and then arrest them without warrant, arguing that they were still in travel status.185 While Wilmoth’s interpretation of Lew Moy may have been suspect, the message it conveyed to officers was clear: the Border Patrol had the power to exercise its power to search, seize, and arrest without warrant not only at the line but far beyond the border.

Notes:

(1.) Harry E. Hull, Commissioner General to I. F. Wixon, Chief Supervisor, Calexico, CA, January 28, 1926, file 55031/81, RG 85, National Archives.

(2.) J. B. Bristol, Nogales Chamber of Commerce to James J. Davis, Secretary of Labor, Department of Labor, April 19, 1928, file 55637/640, RG 85, National Archives; J. B. Bristol, Nogales Chamber of Commerce to Senator Henry Ashurst, May 7, 1928, file 55637/640, RG 85, National Archives.

(3.) George W. P. Hunt, Governor, Arizona to James J. Davis, Secretary of Labor, July 23, 1927, file 55301/217, RG 85, National Archives.

(4.) Harry E. Hull, Commissioner General to I. F. Wixon, Chief Supervisor, Calexico, CA, January 28, 1926, file 55031/81, RG 85, National Archives.

(5.) Immigration Act of 1924, 43 Stat. 153; Appropriations Act of May 28, 1924, 43 Stat. 240; Act of March 4, 1929, 45 Stat. 1551.

(6.) National Prohibition Act, 42 Stat. 223 (1919).

(7.) “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” US Constitution, Fourth Amendment.

(9.) St. John, “Selling the Border,” 113, 128; Langston, “The Impact of Prohibition on the Mexican–United States Border,” 65, 73. For an interesting discussion about how different border towns attracted disparate classes of Americans, see St. John, “Selling the Border,” 113.

(13.) For a detailed account of the economic development of individual border towns, see Martínez, Border Boom Town, 63; Kearney and Knopp, Border Cuates, 196–197. For an explanation of the broader structural forces, including the economic policies of the Mexican government, that led border towns to rely on the vice trade, see Kearney and Knopp, Border Cuates, 197. See also Langston, “The Impact of Prohibition on the Mexican–United States Border,” 328.

(18.) For example, Lorey notes that in the industrial sector, between 1900 and 1940, California experienced a 489 percent increase in industrial employment, Arizona witnessed a 272 percent rise, and Texas reported a 392 percent increase. Lorey, The U.S.–Mexican Border in the Twentieth Century, 48; Martínez, Border Boom Town, 63.

(19.) Taxes on liquor production specifically constituted 13 million pesos in 1923; meanwhile federal revenues that year amounted to 250 million pesos. Buffington, “Prohibition in the Borderlands,” 25. On state revenues, see St. John, Line in the Sand, 159.

(27.) For example, by 1926, Americans owned approximately 40 percent of the real estate in Juárez. In Tijuana, fourteen Americans owned most of the town’s business establishments. Martínez, Border Boom Town, 59–60, 63.

(29.) St. John, “Selling the Border,” 132. Mexico’s early closing hours were often created in retaliation against the establishment of analogous policies by American Customs officials. Langston, “The Impact of Prohibition on the Mexican–United States Border,” 183.

(31.) St. John, Line in the Sand, 163. For an overview of the difficulties facing the Bureau of Customs in the enforcement of Prohibition, see Prince and Keller, The U.S. Customs Service, 195–218.

(36.) On the protests against and exemptions to the curfews see St. John, Line in the Sand, 159, 171; Martínez, Border Boom Town, 65–66; St. John, “Selling the Border,” 133; Buffington, “Prohibition in the Borderlands,” 26–27; Langston, “The Impact of Prohibition on the Mexican–United States Border,” 74, 190, 202, 216; Walter E. Carr, District Director, Los Angeles to Commissioner General, November 19, 1929, file 55630/25, RG 85, National Archives; Harry E. Hull, Commissioner General to Immigration Service, Galveston, Texas, May 14, 1931, file 55630/31A, RG 85, National Archives.

(37.) St. John, Line in the Sand, 165. On Mexico’s efforts to attract nonvice tourists, see Middaugh, “Transnational Cultural Market,” 139, 193; Klein, “The Last Resort,” 60–61, 134–135, 180–181.

(39.) D. C. Kinne, Inspector in Charge, Douglas, Arizona to District Director, El Paso, April 22, 1925, file 55466/51, RG 85, National Archives.

(40.) Harry E. Hull, Commissioner General to I. F. Wixon, Chief Supervisor, Calexico, CA, January 28, 1926, file 55031/81, RG 85, National Archives.

(41.) Grover C. Wilmoth, Memorandum to All Immigration Officers and Employees, Nogales, AZ, May 19, 1928, file 55637/640, RG 85, National Archives.

(42.) J. B. Bristol, Nogales Chamber of Commerce to James J. Davis, Secretary of Labor, Department of Labor, April 19, 1928, file 55637/640, RG 85, National Archives.

(43.) George J. Harris, Assistant Commissioner General to District Director, El Paso, June 7, 1928, file 55637/640, RG 85, National Archives.

(44.) See, for example, “New Immigration Building Sought,” Nogales Herald, September 23, 1930, file 55598/459, RG 85, National Archives.

(45.) Walter E. Carr, District Director, Los Angeles to Commissioner General, March 5, 1929, file 55605/911, RG 85, National Archives.

(46.) William A. Whalen, District Director, San Antonio to Commissioner General, March 22, 1930, file 55630/28, RG 85, National Archives.

(47.) In Ysleta, the limited port of entry appeared to have opened in 1929. In Fort Hancock, the port opened in 1930. G. C. Wilmoth, District Director, El Paso to Commissioner General, (p.196) July 9, 1930, file 55630/25, RG 85, National Archives; G. C. Wilmoth, District Director, El Paso to Commissioner General, July 9, 1932, file 55630/25, RG 85, National Archives.

(48.) A downtown gate, business leaders vehemently argued, would protect their business interests and real estate values. A gate built to the east of the city, in contrast, would benefit Mexicali, a town south of the border, which was expanding eastward at the time. Randall Henderson, Secretary and Leo S. Watts, Secretary, Calexico Chamber of Commerce to Secretaries of Treasury and Labor, February 12, 1929, file 55639/777, RG 85, National Archives.

(49.) Grover C. Wilmoth, District Director to Commissioner General, May 31, 1928, file 55610/160, RG 85, National Archives.

(50.) Grover C. Wilmoth, District Director, El Paso to Inspector in Charge, Tucson, Arizona, January 14, 1927, file 55597/927, RG 85, National Archives.

(51.) Grover C. Wilmoth, District Director, El Paso to Commissioner General, May 23, 1928, file 55610/160, RG 85, National Archives; Harry E. Hull, Commissioner General to Congressman Claude Hudspeth of Texas, June 20, 1928, file 55610/160, RG 85, National Archives.

(52.) William A. Whalen, District Director, San Antonio to Commissioner General, March 22, 1930, file 55630/28, RG 85, National Archives.

(53.) On the anti-Chinese movement in Mexico, see Delgado, Making the Chinese Mexican, 104-129; Camacho, Chinese Mexicans, 38–83.

(54.) J. B. Bristol, Nogales Chamber of Commerce to James J. Davis, Secretary of Labor, Department of Labor, April 19, 1928, file 55637/640, RG 85, National Archives.

(55.) J. B. Bristol, Secretary, Nogales Chamber of Commerce to Congressman Carl Hayden of Arizona, March 14, 1928, file 54933/351E, RG 85, National Archives. For a history of the relationship between INS and state welfare officials, see Fox, Three Worlds of Welfare Relief.

(56.) R. M. Cousar, Inspector in Charge, Nogales, Arizona to District Director, El Paso, May 25, 1928, file 55637/640, RG 85, National Archives.

(57.) This was particularly the case because immigration inspectors, since World War I, had found that their management of the border crossing population drew their focus and resources away from their enforcement mandate. H. C. von Struve, Consul, Mexicali, Mexico, Department of State to the Secretary of State, April 4, 1925, file 55466/51, RG 85, National Archives.

(58.) But cognizant of the agency’s weak inspection procedures, deported immigrants, this official continued, brazenly recrossed the line at the border ports of entry. R. B. Mathews, Assistant District Director, El Paso, “Semi-Annual Inspection Report,” January 26, 1927, file 55396/25A, RG 85, National Archives.

(59.) Grover C. Wilmoth to Commissioner General, May 24, 1928, file 55637/640, RG 85, National Archives.

(62.) Act of May 28, 1924, 43 Stat. 240.

(64.) Those selected from this register were then given an oral examination and physical test. Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 97.

(65.) Lytle-Hernández notes that approximately twenty-five of the new hires were former Mounted Guards who provided the leadership for the new organization. Lytle-Hernández, “Entangling Bodies and Borders,” 35.

(66.) Representative Shreve of Pennsylvania, speaking on Departments of State, Justice, Commerce, and Labor Appropriation Bill, H. R. 11753, on January 20, 1925, 68th Cong., 2d sess., Cong. Rec. 66, pt. 3: 2167.

(67.) Roberts, “The Border Patrol65 Years of Action,” 1, 12–13. See also Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1927, 17.

(69.) Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1925, 15.

(71.) Stiles, interview.

(72.) Stiles, interview.

(73.) Alfred Hampton, District Director, District No. 26 to Commissioner General, August 19, 1924, file 53108/22, RG 85, National Archives. The file contains no response from the Commissioner General.

(74.) See also Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1925, 15.

(75.) Stiles, interview.

(76.) Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 68.

(77.) R. B. Mathews, Assistant District Director, El Paso, January 26, 1927, file 55396/25A, RG 85, National Archives.

(79.) The initial salary was $1,680 per year. Coppock, “History: Border Patrol.” In later years, Patrol wages were not competitive with salaries offered by comparable government agencies such as the Customs Border Patrol. Hence, the Immigration Border Patrol found itself losing recruits to other government offices. Department of Justice, Immigration and Naturalization Service, “The Border Patrol,” 53–60.

(80.) Diary of Dogie Wright, Border Patrol, n.d., C. L. Sonnichsen Special Collections Department, University of Texas at El Paso.

(81.) Bureau of Immigration, Annual Report, Fiscal Year Ending June 30, 1927, 19.

(83.) As a result of Perkins’s inspection at the Laredo office, almost half of the officers were fired or quit. Perkins, Border Patrol, 105–114.

(85.) The Rangers conducted these campaigns in retaliation for the incursions of Mexican revolutionaries such as Pancho Villa. For an account of the vigilante violence, see Johnson, Revolution in Texas, 108–143; Belenchia, “Cowboys and Aliens,” 11 (citing Mary Kidder Rak, Border Patrol [Boston: Houghton Mifflin, 1938]); Lytle-Hernández, “Entangling Bodies and Borders,” 56.

(87.) Memorandum from Commissioner General to Second Assistant Secretary, August 30, 1924, file 53108/22, RG 85, National Archives.

(88.) Immigrant smugglers faced a minimum one-year sentence in a federal penitentiary. Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 5, 72, 74-76.

(89.) Sentences ranged from one month to several years. After serving their sentences, violators were deported. In some jurisdictions, however, prosecution and incarceration of violators would congest the court system; these individuals were deported directly. Indeed, by January 1925, Border Patrol apprehensions under the Passport Act increased the number of deportees and created a backlog of 1,000 cases for Bureau of Immigration administrators. Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 74–76.

(90.) Explaining the work of the Border Patrol in the administration of the Prohibition laws, Wilmoth defined these common law rights as follows: “1) To take the necessary steps to prevent the commission of a felony; 2) To arrest without a warrant persons who commit or attempt to commit a felony (or for that matter a breach of peace) in their presence, or whom the officers have reasonable grounds to suspect of having committed a felony.” Congress, House, Committee on Immigration and Naturalization, Border Patrol, 71st Cong., 2d sess., January 6, 1929, 18. See also Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1930, 36.

(91.) Sanford, “The Line Rider,” 3. Bureau of Immigration General Order No. 63 instructed immigration and Border Patrol officers to enforce the terms of the National Prohibition Act. Bureau of Immigration, General Order No. 63, March 29, 1926, file 55938/943, RG 85, National Archives. In addition to immigration and Prohibition enforcement, Border Patrol officers would assist in the administration of the plant quarantine laws (regarding the illegal importation of agricultural products), the neutrality laws (particularly focusing on the incursion of Mexican revolutionaries into the United States), the Dyer Act (apprehending persons driving stolen cars from one state to another), and the White Slave Traffic Act. Grover C. Wilmoth, (p.198) District Director, El Paso to Commissioner General, April 24, 1930, file 55688/876, RG 85, National Archives.

(92.) Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 72.

(93.) Roberts, “The Border Patrol65 Years of Action,” 1, 12–13. On the violence surrounding Prohibition enforcement, see Sinclair, Era of Excess, 188.

(94.) “New U.S. Police Force Now Combats Smugglers,” 25.

(97.) Congress, House, Committee on Immigration and Naturalization, Immigration Border Patrol, 70th Cong. 1st sess., March 5, 1928, 12.

(98.) Commissioner General, Memorandum for the Second Assistant Secretary, August 30, 1924, file 53108/22, RG 85, National Archives; Congress, House, Committee on the Judiciary, To Establish a Border Patrol, 69th Cong., 1st sess., April 12, 1926, 21; Congress, House, Immigration Border Patrol, 70th Cong., 2d sess., March 5, 1928, 6; Congress, House, Committee on Immigration and Naturalization, Border Patrol, 71st Cong., 2d sess., January 6, 1929, 18–19. In the 1920s, immigration officials had reasons to be concerned about lawsuits. The Volstead Act made it a misdemeanor for any officer of the United States to conduct a search or seizure of a private home without a warrant and a search and seizure of other buildings without warrant and probable cause. Historian Andrew Sinclair observes that six months after Prohibition went into effect, courts heard over seven hundred search and seizure cases; six hundred of these cases pertained to the Volstead Act. Sinclair, Era of Excess, 215. Indeed, as discussed below, the agency later relied on one of these cases, Carroll v. United States, 267 US 132, to establish the boundaries of its search and seizure powers vis-à-vis undocumented immigrants.

(99.) On the congressional intent underlying the new law, see Congress, House, Committee on the Judiciary, To Establish a Border Patrol, 69th Cong., 1st sess., April 12, 1926, 21–27.

(100.) Act of February 27, 1925, 43 Stat. 1049. The new Border Patrol bill was drafted by Senator David Reed of Pennsylvania (cosponsor of the Immigration Act of 1924 and cocreator of the national origins approach to immigration quotas). On Reed and the national origins quota system, see Ngai, Impossible Subjects, 22; Higham, Strangers in the Land, 322–323. While Reed was an ardent restrictionist who also opposed Western Hemisphere quotas (for the sake of fostering diplomatic relations among Western Hemisphere countries), it is not clear that he presented the new Border Patrol bill in order to promote a restrictionist immigration agenda. At a minimum, the bill appears to have been presented to rectify problems with the language of the original Border Patrol act. On Reed and Western Hemisphere quotas, see Reisler, By the Sweat of Their Brow, 202.

(101.) Congress, House, Committee on Immigration and Naturalization, Authorization for Increased Power to the Border Patrols, 70th Cong., 1st sess., May, 21, 1928, 33.

(102.) Act of February 27, 1925, 43 Stat. 1049.

(103.) Until the demise of Prohibition in 1933, however, the Border Patrol continued to take into custody Prohibition violators under the common law standards described above.

(104.) This provision was particularly important due to concerns about the unauthorized entry of noncitizen seamen. Congress, House, Subcommittee of House Committee on Appropriations, Appropriations, Department of Labor, 1926, 68th Cong., 2d sess., January 8, 1925, 78, 86.

(105.) The Supreme Court defined a search as reasonable when undertaken with a warrant supported by probable cause. Katz v. United States, 389 US 347, 357 (1967); Johnson v. United States, 333 US 10, 14 (1948); Carroll v. United States, 267 US 132, 153–154 (1925). See also, Clark, Deportation of Aliens from the United States to Europe, 257, 361; National Commission on Law Observance and Enforcement, Report on the Enforcement of the Deportation Laws of the United States, 133, 151, 171; Van Vleck, The Administrative Control of Aliens, 172–178.

(106.) While there was much debate pertaining to the appropriations bill itself, there was virtually no debate regarding the Reed amendment. The measure also received very little attention in the national press.

(107.) Emphasis added. Senator Reed of Pennsylvania, speaking on Departments of State, Justice, Commerce, and Labor Appropriation Bill, H. R. 11753, on February 7, 1925, 68th Cong., 2d sess., Cong. Rec. 66, pt. 3: 3202.

(108.) Through the following statutory language, Congress conferred this power upon Customs officials: “That every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise.” Act of July 31, 1789, ch. 5, § 24, 1 Stat. 29, 43. See also, Rosenzweig, “Functional Equivalents of the Border,�� 1121; “Legal Analysis of Border Patrol Checkpoints.”

(109.) In Carroll, the plaintiffs were convicted for transporting 68 quarts of whiskey and gin in violation of the Volstead Act. Plaintiffs sought a reversal of the conviction, arguing that the evidence was found through an unlawful search of their vehicle. The Supreme Court upheld the conviction, holding that the Prohibition officers had probable cause to search the vehicle. While this case established what legal scholars now refer to as “the automobile exception” to the Fourth Amendment, it also established in obiter dicta the “border exception” or “border search exception” to the Fourth Amendment. For more information on the automobile exception, see O’Connor, “Vehicle SearchesThe Automobile Exception,” 393–434.

(110.) Beyond the border, however, the Court held that customs officers had to have probable cause prior to conducting a vehicular search without warrant. In Carroll, the Court defined probable cause as follows: “On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicles that which by law is subject to seizure and destruction, the search and seizure are valid.” Carroll v. United States, 267 US 132, 149. The Bureau of Immigration cited to Carroll when it instructed its officers on enforcing the Volstead Act. Bureau of Immigration, General Order No. 63, March 29, 1926, file 55938/943, RG 85, National Archives. Yet while the Court established Fourth Amendment standards for customs searches beyond the border in 1925, no analogous standards existed for immigration searches until 1973. Carroll v. United States, 267 US 132, 154 (1925). See also Fragomen, “Searching for Illegal Aliens.”

(111.) Until the Supreme Court decision in Almeida-Sanchez v. United States, 413 US 266 (1973), the Border Patrol had the power “to stop any vehicle and search for aliens, within a reasonable distance from the border, without warrant, probable cause or consent. This authority had been upheld by the Circuit Courts of Appeal in the Fifth, Ninth, and Tenth Circuits.” In Almeida-Sanchez the Court held that “for all vehicle searches conducted by roving patrols of Immigration Officers away from the international border, a warrant, probable cause, or consent would be required.” Tiltti, “Non-Border Search and Seizure,�� 106.

(112.) Harry E. Hull, Commissioner General, Testimony before the House Committee on Immigration and Naturalization on H. R. 11204, January 15, 1930, file 55688/876, RG 85, National Archives.

(113.) George J. Harris, Assistant Commissioner General to District Director, El Paso, April 15, 1930, file 55688/876, RG 85, National Archives.

(114.) Alfred Hampton, District Director, District No. 26 to Inspector in Charge, Gateway, Montana, April 27, 1925, file 53244/1E, RG 85, National Archives.

(115.) Harry E. Hull, Commissioner General, Testimony before the House Committee on Immigration and Naturalization on H. R. 11204, January 15, 1930, file 55688/876, RG 85, National Archives.

(116.) Lew Moy v. United States, 237 Fed. 50 (1916).

(117.) Congress, House, Committee on Immigration and Naturalization, Immigration Border Patrol, 71st Cong., 2d sess., January 15, 1930, 7.

(118.) H. C. von Struve, Consul, Mexicali, Mexico, Department of State to the Secretary of State, April 4, 1925, file 55466/51, RG 85, National Archives.

(119.) I. F. Wixon, Inspector in Charge, Calexico to Commissioner General, January 19, 1926, file 55301/81, RG 85, National Archives; G. C. Wilmoth, District Director, El Paso, “Immigration Patrol Officers Duties and Authority to Act,” 12, Manual published for (p.200) the Border Patrol Training School, Mexican Border, May 1, 1940, Kelly Lytle-Hernández Collection of Border Patrol Research Papers, Box 13, Folder 16, Chicano Studies Research Center, University of California, Los Angeles.

(120.) Grover C. Wilmoth, District Director, El Paso to Commissioner General, April 24, 1930, file 55688/876, RG 85, National Archives.

(122.) R. A. Scott, Inspector in Charge to District Director, June 2, 1926, file 55280/25B, RG 85.

(123.) Congress, Senate, Committee on Immigration, Illegal Entry of Aliens, 66th Cong., 1st sess., October 10, 1919, 16. This strategy resembled the interior enforcement strategy that the Mounted Guard put in place in its pursuit of Chinese immigrants during the first decade of the twentieth century. Lee, At America’s Gates, 186.

(124.) Harry E. Hull, Commissioner General to District Directors in Charge of Border Patrol, July 20, 1926, file 55409/Gen, RG 85, National Archives.

(125.) Grover C. Wilmoth, District Director, El Paso, Report re Inspection of District (Border Patrol), June 30, 1926, file 55396/22, RG 85, National Archives.

(126.) Grover C. Wilmoth to Commissioner General, June 30, 1926, file 55396/25, RG 85, National Archives.

(127.) Grover C. Wilmoth, District Director, El Paso, Report re Inspection of District (Border Patrol), June 30, 1926, file 55396/22, RG 85, National Archives.

(128.) See, for example, R. B. Matthews, Semi-Annual Inspection Report (Border Patrol), Nogales, Arizona, January 26, 1927, file 55396/25A, RG 85, National Archives; Walter F. Miller, Semi-Annual Inspection Report (Border Patrol), Marfa, Texas, February 24, 1927, file 55396/25A, RG 85, National Archives; Walter F. Miller, Semi-Annual Inspection Report (Border Patrol), Presidio, Texas, September 22, 1927, file 55396/25A, RG 85, National Archives.

(129.) See, for example, Grover C. Wilmoth, Semi-Annual Inspection Report (Border Patrol), August 19, 1926, file 55396/25, RG 85, National Archives.

(130.) See, for example, Walter F. Miller, Semi-Annual Inspection Report (Border Patrol), Casa Grande, Arizona, December 22, 1927, file 55396/25A, RG 85, National Archives.

(131.) See, for example, Walter F. Miller, Semi-Annual Inspection Report (Border Patrol), San Angelo, Texas, February 24, 1927, file 55396/25A, RG 85, National Archives; Walter F. Miller, Semi-Annual Inspection Report (Border Patrol), Sasabe, Arizona, December 22, 1927, file 55396/25A, RG 85, National Archives.

(132.) Registry Act of March 2, 1929, 45 Stat. 1512.

(134.) William A. Whalen, District Director, San Antonio, “Mexican Border Problems,” in US Department of Labor, Bureau of Immigration, “Problems of the Immigration Service: Papers Presented at a Conference of Commissioners and District Directors of Immigration,” Washington, DC, January 1929.

(135.) Harry E. Hull, Commissioner General to I. F. Wixon, Chief Supervisor, Calexico, CA, January 28, 1926, file 55031/81, RG 85, National Archives; J. B. Bristol, Nogales Chamber of Commerce to James J. Davis, Secretary of Labor, Department of Labor, April 19, 1928, file 55637/640, RG 85, National Archives; J. B. Bristol, Nogales Chamber of Commerce to Senator Henry Ashurst, May 7, 1928, file 55637/640, RG 85, National Archives; George W. P. Hunt, Governor, Arizona to James J. Davis, Secretary of Labor, July 23, 1927, file 55301/217, RG 85, National Archives.

(136.) Perkins, Border Patrol, 102, 104, 106.

(139.) Grover C. Wilmoth, District Director, El Paso to Commissioner General, May 24, 1928, file 55637/640, RG 85, National Archives; George J. Harris, Assistant Commissioner General to District Director, El Paso, June 7, 1928, file 55637/640, RG 85, National Archives.

(140.) I. F. Wixon, Chief Supervisor, Calexico, CA to Commissioner General, February 3, 1926, file 55031/81, RG 85, National Archives.

(143.) On the opposition to the program, see Reisler, By the Sweat of Their Brow, 61–65.

(144.) Cardoso notes that immigration restrictionists were unable to garner enough votes to defeat this measure. Cardoso, Mexican Emigration to the United States, 141.

(145.) On Hoover’s efforts to promote Pan-American relations through this measure see Cardoso, Mexican Emigration to the United States, 141–142.

(146.) Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1930, 27–28; Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1931, 45–47.

(147.) These forces had also expressed their outrage regarding Wixon’s registration program, arguing that it completely undermined the immigration laws. I. F. Wixon, Chief Supervisor, Calexico, CA to Commissioner General, January 20, 1926, file 55031/81, RG 85, National Archives.

(148.) Representative Box of Texas, speaking on Naturalization, H. R. 349, on March 1, 1929, 70th Cong., 2d sess., 70, pt. 5 (March 1, 1929): 4950.

(149.) Representative Box of Texas, speaking on Naturalization, H. R. 349, on March 1, 1929, 70th Cong., 2d sess., Cong. Rec. 70, pt. 5: 4948.

(150.) For much of its history, the Border Patrol would suffer from a lack of resources. Historians have observed that even though Congress created the Border Patrol to appease restrictionists, it failed to provide the organization enough funds to adequately enforce the laws and thereby obstruct southwestern growers’ access to a ready supply of Mexican immigrant labor. See Tichenor, Dividing Lines, 172.

(151.) Representative Free of California, speaking on Deportation of Aliens, S. 5094, on February 16, 1929, 70th Cong., 2d sess., Cong. Rec. 70, pt. 4: 3620.

(152.) Representative Hudson of Michigan, speaking on Deportation of Aliens, S. 5094, on February 16, 1929, 70th Cong., 2d sess., Cong. Rec. 70, pt. 4: 3621.

(153.) Representative Blanton of Texas, speaking on Deportation of Aliens, S. 5094, on February 16, 1929, 70th Cong., 2d sess., Cong. Rec. 70, pt. 4: 3619.

(154.) Representative LaGuardia of New York, speaking on Deportation of Aliens, S. 5094, on February 16, 1929, 70th Cong., 2d sess., Cong. Rec. 70, pt. 4: 3619.

(155.) Bureau of Immigration, Annual Report, Fiscal Year Ended 1932, 3. See also Clark, Deportation of Aliens from the United States to Europe, 269.

(156.) W. W. Husband, Second Assistant Secretary to Attorney General, September 13, 1932, file 55639/731A, RG 85, National Archives.

(157.) They also agreed to not prosecute the following: 1) women and children; 2) those whose prosecution would require transportation from one judicial district to another (here, the Immigration Service was attempting to cut back the costs involved with enforcing the Act); 3) those who intended to return to Mexico rather than remain in the United States; 4) those without a criminal record or an “aggravated intent” to violate the law. William A. Whalen, District Director, San Antonio to H. M. Holden, US Attorney, Houston, Texas, May 22, 1933, file 55639/731A, RG 85, National Archives.

(158.) Immigration officials reported that they handled most violations of the Act of March 4, 1929 as voluntary departures. District Director, San Antonio, June 30, 1930, file 55727/922, RG 85, National Archives.

(159.) “Border Patrol Work,” El Paso Herald, July 15, 1929, file 55598/459, RG 85, National Archives; “Border Patrol Work Outlined: Wilmoth Says U.S. Not Making Intensive Drive on Aliens,” El Paso Times, July 13, 1929, file 55598/459, RG 85, National Archives; Editorial, “Aliens Should Register,” Douglas Arizona Daily Dispatch, May 12, 1929, file 55598/459, RG 85, National Archives.

(160.) Grover C. Wilmoth, District Director, El Paso, “Semi-Annual Inspection Report,” May 9, 1928, file 55396/25A, RG 85, National Archives; William A. Whalen, District Director, San Antonio, “Mexican Border Problems,” in US Department of Labor, Bureau of Immigration, “Problems of the Immigration Service: Papers Presented at a Conference of Commissioners and District Directors of Immigration,” Washington, DC, January 1929.

(161.) Congress, House, Committee on the Judiciary, To Establish a Border Patrol, 69th Cong., 1st sess., April 12, 1926, 21. Dry forces in Congress specifically observed that Border Patrol officers refrained from Prohibition enforcement activities because, lacking the statutory authority, they were concerned about potential lawsuits. For a brief overview of interagency Prohibition enforcement efforts, see Prince and Keller, The U.S. Customs Service, 195–218.

(162.) It appears that the first consolidation proposal came from the Bureau of Immigration itself. In 1922, Commissioner General Husband put forth such a plan as a means of strengthening both Prohibition and immigration enforcement. (See “Ask United Force to Guard Borders,” 10.) During the debates over the Act of February 27, 1925, members of Congress also discussed consolidation as a means of reducing the Border Patrol appropriation. (Representative LaGuardia of New York speaking on Bureau of Immigration, H. R. 11753, on January 20, 1925, 68th Cong., 2d sess., Cong. Rec. 66, pt. 3: 2167.) In 1926, Assistant Secretary of the Treasury Lincoln C. Andrews, a vigorous supporter of the Anti-Saloon League, proposed the creation of a 12,000 to 15,000-man border patrol that would catch alien, drug, and alcohol smugglers. With the support of the Women’s Christian Temperance Union, Representative Hudson of Michigan presented Andrews’s plan in Congress (H. R. 9731). Ultimately, it failed to pass due to the expense involved in the bill’s proposal to create a combined force under the aegis of the Coast Guard. This, in effect, would militarize the Patrol and require the construction of barracks along both borders for the housing of the new units. It also failed to pass due to disagreements over whether the Coast Guard ought to supervise the new patrol at all. (“Aid of Congress to Dry Law Wins WCTU Approval,” 1; “Fight for Dry Bills Likely to Go Over,” 6; “Liquor Buyer Bill Urged by Sheppard,” 30.) In 1930, Hudson presented another consolidation proposal, H. R. 11204, which had the backing of President Herbert Hoover (who wanted to improve Prohibition enforcement) and the Wickersham Commission, which publicly opposed the repeal of Prohibition (although its members were divided on this point). (“Alien Crime Bill Voted,” 1; “Full Text of the Wickersham Commission Report on Prohibition,” 52. On Hoover’s enforcement efforts, see Sinclair, Age of Excess, 167, 178–219.)

(163.) Congress, House, Committee on the Judiciary, To Establish a Border Patrol, 69th Cong., 1st sess., April 12, 1926, 12–13, 19–20.

(164.) Representative Mead of New York, speaking on United States Border Patrol, H. R. 11204, on July 1, 1930, 71st Cong., 2d sess., Cong. Rec. 72, pt. 11: 12218; Representative Boylan of New York, speaking on United States Border Patrol, H. R. 11204, on July 1, 1930, 71st Cong., 2d sess., Cong. Rec. 72, pt. 11: 12218.

(165.) Congress, Senate, Committee on Commerce, Hearings on An Act to Regulate the Entry of Persons into the United States to Establish a Border Patrol in the Coast Guard and for Other Purposes, 71st Cong., 3d sess., December 18, 1930, 37–39; “Border Patrol to be Increased,” San Angelo Morning News, San Angelo, Texas, May 25, 1930, file 55598/459, RG 85, National Archives.

(166.) Congress, Senate, Committee on Commerce, Border Patrol, 71st Cong., 3d sess., December 18, 1930, January 8, 1931, 14, 37–39, 45.

(167.) This police force would have the power to enforce all federal laws along the border. Congress, House, Committee on Interstate and Foreign Commerce, United States Border Patrol, 71st Cong., 2d sess., June 9, 1930, H. Rep. 1828, 2.

(168.) Congress, House, Committee on Rules, Hearings on H. R. 11204, 71st Cong., 2d sess., June 14, 1930, 607; Congress, House, Committee on Interstate and Foreign Commerce, United States Border Patrol, 71st Cong., 2d sess., June 9, 1930, H. Rep. 1828, 4–5.

(169.) Congress, House, Committee on Interstate and Foreign Commerce, United States Border Patrol, 71st Cong., 2d sess., June 9, 1930, H. Rep. 1828, 4–5.

(170.) Congress, House, Committee on Rules, Hearings on H. R. 11204, 71st Cong., 2d sess., June 14, 1930, 607; Congress, House, Committee on Interstate and Foreign Commerce, United States Border Patrol, 71st Cong., 2d sess., June 9, 1930, H. Rep. 1828, 6–7.

(171.) Under Secretary of the Treasury, Ogden L. Mills stated, “An adequate number of points of entry will be maintained at which will be stationed customs, immigration, public health, agriculture, and other officers to administer the various laws applicable to entry into the country. Supervision and inspection of vehicles, pedestrians and merchandise will begin and end at the border, which is the logical place. There will no longer be the liability of interruption of travel on the interior roads by the patrol now maintained there. At the present time persons and vehicles that are several miles from the boundary and may never have been out of the country are subjected to this annoyance in the belief that they may have entered the United States without compliance with the law … Examination of persons and property (p.203) at the designated border crossings can be careful, thorough, and certain.” Congress, House, Committee on Interstate and Foreign Commerce, Hearings on H. R. 11204, 71st Cong., 2d sess., April 24, 1930, 5.

(172.) Congress, House, Committee on Immigration and Naturalization, Immigration Border Patrol, 70th Cong. 2d sess., March 5, 1928, 12; Congress, House, Committee on Immigration and Naturalization, To Amend the Fourth Proviso of the Act of February 27, 1925, 70th Cong., 1st sess., May 21, 1928, 39.

(173.) Grover C. Wilmoth, District Director, El Paso to Commission General, March 28, 1931, file 55597/927, RG 85, National Archives.

(175.) Congress, Senate, Committee on Commerce, Border Patrol, 71st Cong., 3d sess., December 18, 1930, January 8, 1931, 6, 68; Grover C. Wilmoth, District Director, El Paso, “Annual Report for District No. 25, fiscal year ending June 30, 1930,” July 18, 1930, file 55727/925, RG 85, National Archives.

(176.) Congress, Senate, Committee on Commerce, Border Patrol, 71st Cong., 3d sess., December 18, 1930, January 8, 1931, 68.

(177.) Opponents objected to the provisions of the bill that would subject owners of leisure crafts (boats under 15 tons) to untrammeled searches and require the mandatory registration of US citizens crossing the US–Canadian border. “Law Enforcers’ Power Limited to Prohibition,” Chicago Daily Tribune, June 22, 1930, 1. Even more controversial was the provision that rendered it a misdemeanor subject to a $100 fine for American citizens to cross the border without inspection at a port of entry. “House Praises Wickersham Bill for Unified Patrol,” 6. See also Representative O’Connor of New York, speaking on United States Border Patrol, H. R. 11204, on July 1, 1930, 71st Cong., 2d sess., Cong. Rec. 72, pt. 11: 12229, 12236.

(178.) Congress, House, Committee on Immigration and Naturalization, Immigration Border Patrol, 71st Cong., 2d sess., January 15, 1930, 7.

(179.) Congress, House, Committee on Immigration and Naturalization, To Amend the Fourth Proviso of the Act of February 27, 1925, 70th Cong., 1st sess., May 21, 1928, 31.

(180.) Congress, House, Committee on Immigration and Naturalization, To Amend the Fourth Proviso of the Act of February 27, 1925, 70th Cong., 1st sess., May 21, 1928, 32.

(181.) Some Border Patrol officers argued that ranch inspections were more effective than interior inspections in the detection and apprehension of undocumented immigrants. I. F. Wixon, Chief Supervisor to Commissioner General, February 15, 1926, file 55409/31, RG 85, National Archives.

(182.) Grover C. Wilmoth, District Director, El Paso, Draft of Proposed Circular, May 4, 1933, RG 85, file 55597/927, RG 85, National Archives; Congress, House, Immigration Border Patrol, 70th Cong., 2d sess., March 5, 1928, 4–5.

(183.) Congress, House, Committee on Immigration and Naturalization, Immigration Border Patrol, 70th Cong. 1st sess., March 5, 1928, 3–6. Indeed, perhaps to emphasize the importance of immigration enforcement vis-à-vis Prohibition enforcement, the 1927 annual report renamed the section concerning alien smuggling to “Bootlegging of Aliens.” The Report then compared alien smuggling to liquor smuggling and noted that the two often went hand in hand (liquor smugglers often resorted to alien smuggling when no cash was available to procure illegal contraband). Bureau of Immigration, Annual Report, Fiscal Year Ended June 30, 1927, 15.

(184.) Grover C. Wilmoth, Lecture, “Immigration Border Patrol Officers’ Duties and Authority to Act,” March 29, 1944, file 56192/582, RG 85, National Archives.

(185.) The Secretary of Labor’s Committee on Administrative Procedure, “The Immigration and Naturalization Service,” Washington, DC, May 17, 1940, 9, 74.