Deadly Deterrence: Border Patrol Authority, Pursuits, and Deported Witnesses

Since 1994, the United States has perpetrated a border policy based on the idea that tougher enforcement will mean fewer people will cross the border—termed “prevention through deterrence.” But this idea has never fulfilled its stated aim and has turned into something resembling a border ideology rather than a border policy based in fact and reality. The results have been deadly. This Article examines a small slice of the results of this deadly border policy as it looks at Border Patrol vehicle pursuits and the deportation of those who witness Border Patrol misconduct. It also provides an overview of the United States Border Patrol—an agency whose expansive reach is also a result of blind adherence to a deadly deterrence-based approach to border policy—near and far from the border.” The United States Border Patrol and Office of Field Operations (OFO) make up Customs and Border Protection (CBP), the largest law enforcement agency in the United States with over 60,000 personnel, including over 19,000 Border Patrol agents. Within U.S. communities, Border Patrol frequently conducts high speed vehicle pursuits, often premised upon little information or suspicion. Between 2019 and 2021, documented deaths resulting from Border Patrol vehicle pursuits increased eleven-fold. In many pursuit cases, the risk taken and deadly outcomes are vastly out of proportion with any articulable suspicion of criminal activity. After years of pressure, the agency released its vehicle pursuit policy for the first time in 2021, and updated the policy in 2023. This Article examines the new policy amid ongoing concerns around implementation and the need for further oversight and accountability. Border Patrol also maintains unique control over the future of surviving witnesses and, in many cases, swiftly removes surviving witnesses before adequate oversight can take place. The Article also includes specific case examples demonstrating the many issues surrounding Border Patrol pursuit practices. It concludes with a warning about what is likely to come at the U.S.-Mexico border and points to where true solutions likely lie.