Testimony Regarding Enforcement Activities by Custom and Border Protection Agents

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following statement regarding enforcement activities by Customs and Border Protection (“CBP”) agents along the Northern Border. With eight offices throughout the state and 55,000 members and supporters, the NYCLU is the foremost defender of civil liberties and civil rights for all New Yorkers, including immigrants.

The NYCLU urges this Committee to consider the civil liberties implications of border security proposals. The NYCLU opposes increased spending on Border Patrol enforcement activities. Instead, Congress should invest in ensuring oversight and accountability mechanisms for CBP operations and do more to take into account the harms caused by overly aggressive enforcement in communities both along the border and in the interior.

CBP is the largest law enforcement agency in the United States, with roughly 60,000 personnel and a budget of over 12 billion dollars.¹ Over the past twenty years, the number of Border Patrol agents employed by CBP has more than quadrupled.² This multiple holds true for the Swanton sector (covering northern New York and Vermont) while the Buffalo sector (covering western New York) has seen a more than eightfold increase in the number of agents.³ This rapid increase in agency staffing has brought with it a predictable increase in interactions between Border Patrol and civilians, as well as a rise in agents abusing their authority.

Aggressive and Unconstitutional Interior Enforcement Practices

Despite the agency’s mission of policing the border, Border Patrol has increasingly made incursions into the interior. The NYCLU first documented this phenomenon in its report, Justice Derailed: What Raids on New York’s Trains and Buses Reveal about Border Patrol’s Interior Enforcement Practices, which was published in 2011 and was based on interviews with individuals and data obtained through FOIA litigation.⁴ The report described Border Patrol agents’ aggressive policing tactics aboard domestic common carriers such as Amtrak and Greyhound.⁵ It revealed widespread failures by agents to follow agency regulations, racially biased policing, and violations of the Fourth and Fifth Amendment rights of individuals with whom the agents interacted. These findings pointed to a need to refocus the agency’s operations away from interior communities, thus lessening the devastating impact these practices often have on New Yorkers’ lives, and to improve training for CBP officer to ensure that appropriate laws and procedures, including those related to the exercise of prosecutorial discretion, are being followed. Unfortunately, in the years since the Justice Derailed report, the NYCLU and others have continued to identify alarming patterns of constitutional violations involving the use of roving patrols, checkpoints, and collaboration with state and local law enforcement agencies.

Justice Derailed revealed that armed Border Patrol agents board domestic trains and buses to question passengers about their citizenship and arrest and detain people, including individuals lawfully present who are not carrying proof of their lawful status. These operations took place without reasonable suspicion of any unlawful activity having occurred. For example, a CBP station opened in Rochester in 2004,⁶ ostensibly to police cross-border entry into the U.S. via a ferry service between Rochester and Toronto, refocused its resources onto interior transportation raids after the ferry service closed in 2006.⁷ Rochester residents reported that Border Patrol officers maintained a nearly constant presence in the city’s bus and train stations, and the Rochester Station is reported to have had more arrests than any of the other 55 Border Patrol stations along the Northern Border.⁸

CBP justified its use of transportation raids by declaring that they are “performed in direct support of immediate border-enforcement efforts and as a means of preventing smuggling organizations from exploiting existing transportation hubs to travel to the interior of the United States.”⁹ However, the data revealed that these raids do not further CBP’s stated goals. The NYCLU’s analysis of Rochester Station transportation arrest data revealed that 76 percent of those arrested had been in the country for more than one year.¹⁰ Indeed, less than one percent of those arrested had entered the U.S. within the preceding 72 hours, and only around five percent had entered within 30 days of their arrest.¹¹

Additional information analyzed by New York University Law School (NYU) regarding enforcement operations in the Buffalo Sector from 2006-2011 demonstrates the existence of three different bonus programs, through which Border Patrol closely monitored arrest numbers and awarded substantial bonuses to arresting agents.¹² Border Patrol consistently allocated funds to the Buffalo Sector for discretionary awards of cash bonuses up to $2,500, time off awards, and gift cards of up to $100.¹³ This funding increased from a few thousand dollars in 2003 to a budget of more than $200,000 for discretionary incentive programs in 2011.¹⁴ The three types of awards were given out without clear criteria or objective standards, thus empowering individual stations to make these determinations with little oversight or supervision.¹⁵

Although no clear, objective criteria existed for these programs, statements by Border Patrol agents in depositions stated that bonuses were given out based on “quality of work.”¹⁶ Officials from Buffalo Sector and Rochester Station confirmed that the only numerical data kept on station performance were daily arrest records, and that they were unaware of any other regular reports reflecting station and sector performance.¹⁷

Rather than enhancing border security, programs that incentivized Border Patrol agents to increase their arrest numbers increased the intimidation and harassment of New York communities, including U.S citizens and immigrants with lawful status. In the data analyzed by NYU, nearly three hundred lawfully present individuals were wrongfully arrested during Rochester Station transportation raids between 2006 and 2010 because of this aggressive approach to enforcement incentivized by the existence of bonus programs.¹⁸

CBP’s pattern of aggressive and abusive interior enforcement practices in New York State does not remotely suggest a need for yet more border security personnel and equipment. Rather, the pattern illustrates the need for stronger Congressional oversight and accountability.

Use of State and Local Police to Conduct Immigration Enforcement Activities

Immigration enforcement is the responsibility of federal immigration authorities, not state and local law enforcement, whose job is to protect and serve all residents and visitors, regardless of immigration status. New York has a long and proud tradition of welcoming immigrants. More than twenty percent of New Yorkers were born outside the country and more than one in ten are foreign-born citizens of the United States.¹⁹ When state and local law enforcement officers collaborate with Border Patrol agents in the interior, immigrant communities become fearful that any kind of interaction with the police will put themselves and their family members at risk for detention and deportation.

The NYCLU regularly receives reports of upstate New Yorkers targeted for immigration investigation and enforcement by state or local law enforcement agencies acting on behalf of or in concert with CBP. Often, a stop that otherwise would be brief and routine transforms into a prolonged detention for the purpose of investigating immigration status when a state or local officer, often with little information other than the perceived race and English language ability of the stopped individual(s), calls CBP from the scene of the stop. Sometimes the pretext for the call is a need for translation assistance, itself an inappropriate use of CBP resources, but frequently the officers dispense with this pretense. CBP reinforces this dynamic by remotely interrogating car occupants and instructing the officer on the scene to detain and/or transport the individual(s). This prolongation of traffic stops often violates the rights of New York residents under the Fourth and Fourteenth Amendments to the U.S. Constitution and the analogous provisions of the New York State Constitution.

Another concerning practice of Border Patrol involving coordination with state and local law enforcement that warrants oversight is its abuse of its limited authority to conduct checkpoints. Border Patrol is permitted to briefly stop motorists at checkpoints for a “limited inquiry into residence status” and a “visual inspection” of a vehicle’s exterior.²⁰ Records obtained by the NYCLU through FOIA, however, demonstrate that Border Patrol and state and local law enforcement agencies jointly operate checkpoints in northern New York at which they openly and routinely exceed this limitation by conducting generalized criminal investigations, a practice which the Supreme Court has declared unconstitutional.²¹ One need only peruse local newspapers to find accounts of upstate residents aggravated and outraged at frequently having to suffer through intimidating, extended interrogation not related to immigration, unlawful and invasive searches, and other abuses while passing through merely to go to work, run errands, or the like.²²

The NYCLU has documented the adverse impact that state and local law enforcement involvement in immigration enforcement has on the lives of New Yorkers. In one case from 2010, Peter Mares, a U.S. citizen of Mexican descent offered to provide translation services to a local police officer during a traffic stop. The officer called Border Patrol, and when the Border Patrol agents arrived, they began to interrogate Peter and ask for identification. When Peter asked why a U.S. citizen was required to show identification, the Border Patrol agent handcuffed Peter and continued to interrogate him regarding his citizenship for 45 minutes, before releasing him without charges.²³

In January 2014, a Hispanic U.S. citizen friend was driving M.G.,²⁴ currently a lawful permanent resident of the United States, from Buffalo, NY to Fulton, NY. At approximately 1:30 PM on County Road 48 in Oswego County, the car slipped into a ditch due to blizzard conditions and was totaled. M.G.’s friend dialed 911, and New York State Troopers arrived on the scene. Aside from assisting with having the car towed, the Troopers focused their attention on the immigration status of M.G. Very soon into the encounter, the officer had a Border Patrol officer interrogate M.G. via cell phone while she sat in the back seat of his patrol car. M.G. explained that she had federal work authorization and showed the Trooper her work authorization photo identification, but he and his Border Patrol counterpart persisted. After hanging up with the Border Patrol officer, the Trooper handcuffed M.G. and drove her to the CBP station in Oswego. There, Border Patrol agents continued to detain M.G. for a total of over three hours until finally confirming that she was a lawful permanent resident.

Individuals such as M.G., a survivor of domestic violence, have become afraid to call 911, perhaps the most fundamental mechanism for community members to alert the police to crime and danger in their homes and communities. By transforming routine encounters with state and local police into prolonged detentions involving extensive questioning about immigration status, Border Patrol creates a deep fear and mistrust of law enforcement in local communities and does immeasurable damage to public safety. Furthermore, a thorough review of practices at Border Patrol checkpoints is needed to identify needed changes to ensure that they comport with constitutional limits.

Racial Profiling

In December 2014, the U.S. Department of Justice issued new guidelines to eliminate bias in federal policing.²⁵ However, the Department exempted CBP from coverage, stating in a footnote that “this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.”²⁶ Historically, CBP has taken the position that its officers are constitutionally permitted to rely on apparent race as a factor justifying suspicion for immigration enforcement-related stops.²⁷ This stance is antithetical to Equal Protection and is of particular concern for New Yorkers, given the state’s diverse population; nearly half of the state’s total population is non-white.²⁸

The case of Lucia Rogers provides a useful illustration of this concern. Ms. Rogers, a U.S. citizen living in Chateauguay, New York is of Mexican descent and has a dark complexion. She works for a community health organization funded in part by a federal grant, providing transportation and interpretation services to Spanish-speaking farmworkers in upstate New York who require medical treatment or consultation. On December 28, 2011, in the course of her employment, Ms. Rogers was pulled over by Border Patrol agents, who informed her that they were conducting a “citizenship checkup.” The agents, who had no reasonable suspicion that Ms. Rogers was engaged in any criminal activity, stopped her without justification and presumably because of her race. They proceeded to handcuff, arrest, invasively search, detain, and interrogate her at the Ogdensburg CBP station. She was released after several traumatic hours of detention.

The need to investigate whether CBP regularly engages in racial profiling is bolstered by the records concerning transportation raids obtained through a FOIA request, discussed above. Passengers of color who asserted their U.S. citizenship when questioned by agents were routinely asked to prove their citizenship and present documentation, despite the fact that U.S. citizens are not required to carry proof of citizenship.²⁹ An analysis of the records revealed that people of color were the primary focus of enforcement operations in the Rochester Station. Records reflecting arrestees’ skin complexion (e.g., “medium,” “black”, “light,” etc.) show that the vast majority of those arrested—84.1 percent—were of a medium or black complexion.³⁰

The NYCLU believes the loophole afforded CBP in the December 2014 DOJ guidelines should be closed. A basic requirement of Equal Protection is that an officer—including CBP agents—may not target individuals because of their race, ethnicity, gender, national origin, religion, sexual orientation or gender identity. Moreover, profiling divides communities and creates a major rift between law enforcement and the communities they are meant to protect. The NYCLU urges the adoption of policies, training, data collection, and disciplinary measures to eliminate racial, religious, and other discriminatory profiling by Border Patrol agents.

Need for Training on Enforcement Priorities

There is a clear and urgent need for more comprehensive training of CBP agents in order to reduce the incidence of unnecessary detention and arrests and the corresponding harms to New York communities by overzealous enforcement. Border Patrol officers’ historical approach can fairly be characterized as “arrest first, figure out enforcement priority questions later.” This stands in stark contrast to Secretary Johnson’s November 20, 2014 directive on new policies for the apprehension, detention, and removal of undocumented immigrants, which emphasized the need to target enforcement activities and engage in the exercise of prosecutorial discretion, including at the earliest investigative stages, when enforcement is not necessary to protect national security, border security, and public safety.³¹ A fundamental culture change is necessary in order to bring the agency into compliance with the Secretary Johnson’s November 20, 2014 directive

In many cases, Border Patrol officers have unlawfully arrested persons with valid immigration statuses because the officers incorrectly presumed that the arrestees were not in possession of proper documentation. M.G.’s story, discussed above, is illustrative of this phenomenon, and there are more cases like hers. For example, Border Patrol arrested a VAWA self-petitioner for not carrying a registration documents that she was not required to have, detained and transported a tourist to a port of entry because he was not in possession of an I-94, refused to accept a valid Employment Authorization Document as evidence of lawful status, and demanded to see students’ I-20 forms, despite federal regulations that explicitly instruct students to keep their I-20 forms in a safe place and not carry the documents on their persons.

A staggering number of those arrested during the transportation raids discussed above were detained by CBP without being screened for risk of flight, threat to the community, or other considerations. Between 2006 and 2009, 74 percent of individuals arrested were detained. Not only do these overzealous detention practices create a financial burden for taxpayers, but unnecessary detention deprives children of their parents, families of their breadwinners, employers of their employees, and communities of their valued residents.

It is imperative that Border Patrol officers receive ongoing training on enforcement priorities and the exercise of prosecutorial discretion. This is especially true for Border Patrol officers engaged in interior enforcement activity, as they are more likely to encounter individuals with deeply rooted ties to families and communities in the United States. Border security and public safety are not served by tearing apart families and communities contrary to established priorities.

Conclusion

Despite the agency’s assertion that its operations in New York State enhance border security, CBP’s actions have been inconsistent with its stated priorities. CBP’s activities, in particular its interior enforcement operations, have led to widespread constitutional violations that continue to sow mistrust between communities and law enforcement officials. Rather than increasing funding for CBP and further militarizing the border, Congress should improve oversight and accountability mechanisms to curb CBP’s abusive enforcement practices. To the extent that CBP continues to engage in interior enforcement, it must ensure that it does so only in accordance with existing enforcement priorities and that prosecutorial discretion is exercised to the fullest extent permissible in order to keep families and communities together.

We thank the Committee for the opportunity to offer this statement on CBP’s enforcement activities in New York State and look forward to continuing to work with the Senate and with CBP to ensure that all New Yorkers, regardless of their immigration status, are treated with dignity and respect in their interactions with immigration enforcement agents.

Footnotes
1 Garrett M. Graff, The Green Monster: How the Border Patrol became America’s most out-of-control law enforcement agency (Politico Magazine Nov./Dec. 2014), available at http://www.politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220.html.

2 United States Border Patrol, Border Patrol Agent Staffing by Fiscal Year (Sept. 20, 2014), available at http://www.cbp.gov/sites/default/files/documents/BP%20Staffing%20FY1992-FY2014_0.pdf.

3 Id. at 4.

4 New York Civil Liberties Union, Justice Derailed: What Raids on New York’s Trains and Buses Reveal about Border Patrol’s Interior Enforcement Practices, 2011, available at http://www.nyclu.org/files/publications/NYCLU_justicederailedweb_0.pdf.

5 Id.

6 Nina Bernstein, Border Sweeps in North Reach Miles Into U.S., N.Y. TIMES, Aug. 29, 2010, available at http://www.nytimes.com/2010/08/30/nyregion/30border.html.

7 Michelle York, Rochester Finds It Is Losing a Ferry Service, N.Y. TIMES, Jan. 16, 2006, available at http://www.nytimes.com/2006/01/16/nyregion/16ferry.html.

8 Tim Martinez, Newhouse School of Public Communications, Syracuse University, Caught in Transit: The Rochester Border Patrol Station, http://cmr.syr.edu/newshouse/video/article.html.

9 Colin Wodard, Far From Border, U.S. Detains Foreign Students, CHRONICLE OF HIGHER EDUCATION, Jan. 9, 2011, available at http://chronicle.com/article/Far-Fom-Canada-Aggressive/125880.

10 Justice Derailed, supra note 4 at 8.

11 Id. at 10-11.

12 New York University School of Law, et al., Uncovering USBP, Bonus Programs for United States Border Patrol Agents and the Arrest of Lawfully Present Individuals 1, 2013, available at http://familiesforfreedom.org/sites/default/files/resources/Uncovering%20USBP-FFF%20Report%202013.pdf.

13 Id. at 5.

14 Id.

15 Id. at 6-7.

16 Id. at 6.

17 Id. at 8.

18 Id. at 10.

19 Migration Policy Institute, State Immigration Data Profiles, http://www.migrationpolicy.org/data/state-profiles/state/demographics/NY.

20 United States v. Martinez-Fuerte, 428 U.S. 543, 558–60 (1976); see also id. at 556–57 (“The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”).

21 See City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.”); see also, e.g., United States v. Ellis, 330 F.3d 677, 680 (5th Cir. 2003) (holding that Border Patrol routinely tack on otherwise impermissible drug interdiction questioning was “essentially an attempt to circumvent the [Supreme] Court’s holding in Edmond”) (quotations omitted).

22 See, e.g., Jake DeShane, Border Patrol Road Blocks Infringe Our Rights, NORTH COUNTRY NOW, Mar. 9, 2015, available at http://northcountrynow.com/letters/border-patrol-road-blocks-infringe-our-rights-0138136.

23 Justice Derailed, supra note 4 at 22.

24 To provide her privacy, the name of the individual described as “M.G.” is withheld.

25 U.S. Dep’t of Justice, Civil Rights Div., Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity, Dec. 8, 2014, available at http://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08/use-of-race-policy.pdf.

26 Id. at 2, n.2.

27 See United States v. Brignoni-Ponce, 422 U.S. 873, 885-87 (1975).

28 U.S. Census Bureau, State County QuickFacts: New York, http://quickfacts.census.gov/qfd/states/36000.html.

29 Justice Derailed, supra note 4 at 7.

30 Id.

31 Jeh Johnson, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014), available at http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf.

32 Uncovering USBP, supra note 12 at 23-25.

33 Justice Derailed, supra note 4 at 14.