Larry Haskell

Spokane County Prosecutor Larry Haskell is surprised that people are surprised.

"It's a well-established law for the right of the border patrol to do the types of contact with citizens that they have had. That's been going on here in Spokane for a long, long time. This is no surprise to anyone and it shouldn't be," Haskell said.

However, it wasn't just a surprise to Portland comedian Mohanah Elshieky - it was an experience that he "never imagined that I (he) would have to go through."

Elshieky tweeted about an incident at the Spokane Intermodal Center on Sunday, when Border Patrol agents entered his Greyhound bus and began questioning passengers about their citizenship and immigration status. He also said the agents "claimed my (his) papers were fake and that I'm (he's) 'illegal.'"

Spokane Border Patrol Officer Bill Kingsford confirmed the incident took place, but said the statement about fake papers, specifically the claimed allegations by border patrol agents, are not true. Kingsford said that if agents believed the papers were fake, Elshieky would have been detained.

Elshieky also was guilty of a federal misdemeanor, according to Haskell.

Elshieky was never charged with any crime from the incident.

"If you are required, by virtue of your status, to have the I-94 form in your possession, it's required to be on your person and it be presented when asked. It's actually a misdemeanor under federal law to not have it," Haskell said.

"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him", according United States Code Section 1304. The misdemeanor also includes a maximum fine of $100 and imprisonment for no more than 30 days.

Haskell also said, no matter what citywide or statewide legislation is passed, the Supremacy Clause makes the federal law "the law of the land." Therefore, he said he's unable to go against federal legislation, including the Immigration and Nationality Act.

"If somebody feels this is unconstitutional, instead of talking about it in the media, they probably ought to be going to a court and filing the necessary paperwork to have an interpretation... The only thing that would change it is a court decision that says it's a violation, some provision in the Constitution (which they have not done), or Congress acts and amends to the degree that would affect the Immigration Act," Haskell said.

He also said statutes and acts of Congress are always presumed constitutional, until and unless found otherwise.

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Speaking specifically on the act of Border Patrol agents boarding a bus at a station, Gonzaga Law Professor Megan Ballard said it's an area the Supreme Court hasn't directly ruled on.

"It is important to recognize that the U.S. Supreme Court has addressed this issue in two different contexts. The problem is the bus questioning falls between those two contexts," Ballard said.

The two cases the Supreme Court has ruled on, related to this issue, are 'United States vs. Martinez-Fuerte' and 'Almeida-Sanchez vs. United States,' according to Ballard.

In the latter case, the Supreme Court ruled a warrant-less search of a person's car, made without probable cause or consent, violated the Fourth Amendment.

In the Martinez-Fuerte case, the Supreme Court ruled the Fourth Amendment does not protect individuals from unreasonable searches and seizures, noting the stops and questioning "may be made at reasonably located checkpoints."

The boarding of buses by Border Patrol agents at Spokane Intermodal Center does not specifically fit the mold of either Supreme Court case, according to Ballard.

"The U.S. Supreme Court, to my knowledge, has not addressed the actual bus or train issue. So, we don't have authoritative guidance: we're left to analogize whether the bus situation is closer to stopping a car as part of a roving patrol, or as part of a checkpoint," Ballard said.

Although the Martinez-Fuerte case allowed warrant-less searches and seizures at "reasonably located checkpoints," the Court did not specify what exactly a reasonable location is. That's where the Immigration and Nationality Act comes in, which defined "reasonable distance as 100 air miles from the border."

"That takes up the entire state of Florida, the entire state of Maine, and a huge amount of the population," Ballard said.

Nearly 2/3 of the U.S. population live within the 100-mile border zone, according to the American Civil Liberties Union.

Spokane is about 90 air miles away from the Canadian border.

Ballard and Haskell both agree that the most-effective way to potentially change local Border Patrol procedures require steps in court or by Congressional leadership.

"The law can change, depending on when the bus is moving, whether it's on a highway, whether it's at a depot: these are variations that matter when we talk about Fourth Amendment law. It matters when someone is being detained, whether they're free to leave or not, or whether there's an actual search," Ballard said.

"We enforce the law that's on the books and we respect the process. We know there is a process for changing the law, if Congress were to change it in this case," Haskell said.