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Racial profiling on Washington’s northern border?

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).”

This is not an untrue statement, but the total "can include" many felons in priority level 2, as well. Further, the authors complain that almost half of the deportees last year were in the lowest priority level — number 4 — as if officials holding four priorities should act only on the highest one or two. In sum, data in the report don’t substantiate a claim that immigration officials subvert their own priorities in order to focus on lowest-level offenders.

Finally, the report faults CBP for blurring boundaries between its federal operations and local and state law enforcement. When encountering Latino residents who can’t speak English, the Border Patrol offers translation services to the police (all CBP field personnel know Spanish). But then Patrol officers take advantage of these opportunities to investigate the status of persons present who might be unauthorized immigrants, charges the report. Border Patrol officers also provide backup in community emergencies, sometimes handling 9-1-1 calls and showing up with (or even before) local first responders. But as the emergency is addressed, the report says, Patrol officers look for individuals whose status they might want to question. CBP officers also linger outside courthouses on days when Spanish interpretation services are offered, waylaying Latino residents who might come to pay a parking ticket, says the report.

Weaving Border Patrol responsibilities into local ones, especially when combined with what the report claims is racial profiling and what it says is a pattern of threatening or personally disrespectful behavior on the part of CBP officers in general, provokes community-wide fear in Latino neighborhoods, say the authors. They urge that an investigation from above be launched and that CBP officer training and operations be changed.

Stepping back from the report as a whole, one could reasonably ask whether border enforcement practices as described really threaten human rights, even though serious problems are clearly evident. Is it a threat to the rights of people who commit crimes if they and people who care about them are afraid to call the police, contact first responders, or visit a courthouse as a result? It’s painful and unfair if innocent members of a community where some lawbreakers live or work hesitate to seek the help they need. But many people interviewed for the report are living like other U.S. citizens who have broken the law and are trying to avoid detection: they and their families and friends tremble at the prospect of running into a uniformed authority figure.

The somewhat dramatic claim that human rights are being violated, or are on the verge of violation, seems prompted by a wish that unauthorized immigrants be treated as if they hadn’t broken any law at all, or at least treated as if their offense was so minor it should be overlooked. But CBP could legitimately do so only if the nation agreed to offer amnesty.

That said, OneAmerica’s work does highlight serious problems whose solutions don’t require a nationwide debate. OneAmerica policy director Ada Williams Prince said in an interview that CBP should bar routine forms of collaboration between their officers and local police. Mixing federal with local operations in this way not only intensifies anxiety among residents who need help from local first responders; it also reduces the effectiveness of local law enforcement. “Any police officer will tell you that the only way they can do their jobs is with the trust of the community,” Prince said. “How do you police an area without that?”

And the report successfully fulfills its general purpose, which, said the director of the UW Center for Human Rights, Professor Angelina Snodgrass Godoy, “is to bring policy concerns to the public.” Enforcement of present immigration laws “requires urgent attention on many fronts,” Godoy said. “We can work incrementally and make sure rights are addressed within the existing system, even if it’s flawed.”

The report makes its best case indirectly, by implication: the case for thoroughgoing reform of the nation’s immigration laws. Economic migrants illegally in the U.S. who tell their stories in The Growing Human Rights Crisis didn’t come here to terrorize Americans or commit crimes on American soil. They came to do the kinds of essential jobs that few of us are willing to do, for wages that keep prices so low we don't have to pay as much for some things as we should. It’s unhealthy for Americans to keep benefiting in these ways from the heavy labors of a population that lacks the legal standing necessary to do robust bargaining in its own behalf.

Furthermore, even if illegal border crossings stopped dead today and no newcomers swelled the present total of unauthorized immigrants in the U.S. (currently estimated to be 10-11 million people, and declining — because of the recession, some say), we have resources enough to deport only 400,000 per year. With immigration court backlogs now amounting to tens of thousands of cases, deportations at this rate would take a quarter-century or more to reduce present numbers anywhere close to zero. The problem is not going away, at least not soon.

Only comprehensive immigration reform will ensure that millions of peaceful, hard-working people and their neighbors aren’t doomed to lead painfully restricted, frightened lives. And that's a reality that reading The Growing Human Rights Crisis can help us understand.

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