A report published last week, The Growing Human Rights Crisis Along the Northern Border, alleges that the human rights of residents in Washington communities up north are under attack. The publication is based on 109 interviews and other on-the-ground research in Snohomish, Whatcom, and Skagit counties about interactions between residents and the Border Patrol, which operates as part of the Department of Homeland Security’s U.S. Customs and Border Protection (CBP).
According to the 52-page document, Border Patrol officers systematically engage in racial profiling. They also work routinely with local police, courts, and emergency responders in ways that create a climate of mistrust and fear, which “can imperil immigrants’ access to police protection, urgent medical attention, fire protection, and other emergency services.” The basic constitutional and international human rights of persons of Hispanic descent, with and without legal citizenship, are being jeopardized in the region, concludes the report.
To produce The Growing Human Rights Crisis, immigrant advocates at OneAmerica asked the University of Washington Center for Human Rights (CHR) for help in systematizing their procedures for collecting, documenting, and analyzing evidence of the problems they perceived in the communities they serve.
The report arrives at a time when the subjects of racial profiling and minorities’ rights have risen to the top of the American agenda again — the most recent elevation in a century and a half of fluctuating national attention. On the day the report appeared (Tuesday, April 17) the U.S. Senate judiciary subcommittee on rights and the Constitution heard testimony on racial profiling.
This week, on Wednesday the 25th, the Supreme Court will hear a challenge by a group of former state Attorneys General to Arizona Senate Bill 1070, which requires all non-citizens in the USA for more than 30 days to carry official documents when within Arizona's borders. Further, all law enforcement officers in that state must determine the immigration status of every person they stop, in cases where they suspect the individual might be in the country illegally.
Of course advocates' biases shape the stories they collect from the populations they work with, and a policy-bound federal agency charged with protecting national security will have its own biases. The Growing Human Rights Crisis has the rhetoric and tone of an advocacy piece. But if the report’s allegations are true or even just mostly true, they add up to a world you wouldn’t want to live in, even as a legal citizen — a world where all are treated like criminals because a few broke the law.
If you were a person of Hispanic descent living in northern Washington, where the economy depends heavily on migrant labor, you’d regularly be flagged down by Border Patrol agents who noticed that your vehicle’s muffler is noisy or a taillight is out, according to the report. If you spoke Spanish near a CBP officer, he or she would try to engage you in “casual” conversation invariably leading to questions about where you were born. You could be stopped at a ferry terminal in the middle of a family emergency, as the report says happened to one Latino woman carrying her immigration papers who was rushing an injured family member onto the Anacortes ferry enroute to a doctor. One young man in a family of unauthorized immigrants was forced to choose whether he or his mother would be detained along with his father, alleges the report, and the two men were deported.
We don’t know the reasoning of the officer in the last anecdote. He could conceivably have been exercising discretion to allow at least one member of a non-threatening family the option of continuing to work in the U.S. For as the report makes clear, CBP officers may cut corners for immigrants lacking authorization who pose no threat to national security — generally, for example, for those with a close relative in the U.S. military. But the officer had to take action of some kind. John Bates, CBP’s chief patrol officer in the Blaine sector, has said that if Border Patrol officers suspect someone is in the country illegally, “they do not have the discretion to walk away,” according to the report.
Racial profiling is the most complicated issue the authors raise. Border Patrol officers are forbidden to act on perceptions of a person’s race or religion, wrote Jeffrey D. Jones, supervisory border patrol agent for the Blaine Sector of CBP, in response to an email request for information about officer training. “In determining whether individuals are admissible into the United States, CBP utilizes specific facts and follows the Department of Justice’s ‘Guidance Regarding the Use of Race by Federal Law Enforcement Agencies’” (issued in 2003).
However, according to this guidance, among the "specific facts" that officers such as Jones may use is a person's country of origin. This exception makes it impossible to determine whether the 63 instances of what the report calls racial profiling can be classified as illegal behavior.
The authors want racial profiling eliminated entirely by ensuring that all agencies, including those responsible for border security, are equally governed by a more sweeping definition. They urge Congress to pass the End Racial Profiling Act (ERPA), which would close loopholes in DOJ guidance by specifying that people cannot be stopped or questioned on the basis of their race, ethnicity, religion, or country of origin. (ERPA pros and cons can be found, respectively, in a letter sent to Attorney General Eric Holder by 66 members of Congress after the Senate subcommittee hearing and in the testimony of Roger Clegg.)
Holding all agencies to an equal standard makes sense, says the report, when Border Patrol attention to country of origin can’t be shown to have strengthened national security against terrorist attacks since 9/11. “[O]f 43 prosecutions for terrorism in Washington State since 2001, zero have been referred to the courts by the Border Patrol.”The authors conclude that “the agency’s overzealous enforcement activities and ballooning [size] are not only dangerous, but unnecessary.”
(Studies have shown that profiling based on race or ethnicity is a poor crime-fighting strategy. According to research cited in the Senate hearing testimony of David Harris, professor at the University of Pittsburgh School of Law, officers in law enforcement need to be trained to interpret behavior, which gives valuable clues about whether someone has engaged in or intends to engage in a criminal act. Part of learning to focus on behavior is scrupulously ignoring a person’s racial or ethnic appearance.)
The report also urges that the order of priorities adopted by border officials in pursuing unauthorized immigrants who are not terrorist suspects be strictly followed. Highest in priority (1) are those who have committed aggravated felonies, or “serious criminal aliens.” Next (2) come those who have committed other felonies and (3) those convicted of misdemeanors, followed by (4) those whose only crime is illegally entering or remaining in the U.S.
The report accuses officials of mainly targeting individuals of low-level priority. As evidence, the authors cite the fact that only 25 percent were deported last year for aggravated felonies. But by not telling readers what all four priority categories are, they free themselves to generalize loosely that the remaining 75 percent of those lawbreakers were deported on grounds that “can include many low-level misdemeanors (e.g. shoplifting or minor traffic offenses).”
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