By Enrique Lopetegui
(Update on 2/16/10: CBP press officers contact the QueBlog)
If you are brown and drive a pick-up truck on San Antonio Highways, the U.S. Customs and Border Protection has a message for you: Whether you're undocumented or a U.S. citizen, watch your butt.
OK, the CBP didn't say that. But based on several official documents brought to the QueQue's attention by two local immigration attorneys, that seems to be what the CBP is doing.
“The public should be concerned that the CBP is out there profiling drivers,” said AndrÃ©s PÃ©rez, an attorney with De Mott, McChesney, Curtright & ArmendÃ¡riz. “The obvious problem with CBP patrolling the streets and highways of San Antonio is that they are not legally justified to stop drivers for no reason or based on a reasonable suspicion that a driver may or may not be doing something illegal. San Antonio is well outside of this `special` zone, and CBP knows this.”
The “special zone” PÃ©rez is referring to is what's jokingly referred to as the “Constitution-free zone” that extends about 125 miles from the border inland. While the U.S. Fourth Amendment and the Texas Constitution require probable cause for any detention or traffic stop by a law enforcement officer, ports of entry and that special zone are the exceptions to the rule.
“CBP can stop drivers inside the zone based only a â??reasonable suspicion' of illegal activity, a slightly lesser standard than probable cause,” said PÃ©rez. “But because the standard is so low and victims of these arrests frequently do not challenge the arrest, CBP operates with relative impunity.”
Arrests without probable cause and illegal profiling seem to be the norm, and not only in the special zone.
“CBP can stop people based on suspected criminal activity `smuggling drugs or aliens, for example`, but not simply because they believe someone is not in the U.S. legally,” said PÃ©rez. “There is no way to suspect a driver is documented or not without racially profiling him.”
JosÃ© `last name withheld`, an undocumented Guatemalan, was stopped and detained by CBP on March 19, 2007. His case has all the common elements found in most of the cases the QueQue looked at: The driver and passengers were brown, they were in a pick-up truck, were construction workers and, according to the CBP officer, looked “stoic” and “nervous” when they noticed that a CBP car was nearby.
CBP Agent Rolando Salinas spotted JosÃ© driving westbound on the 410, and pulled alongside. The agent says JosÃ© “became very nervous” and always looked “straight ahead.” He decided to stop him after JosÃ© supposedly began to “switch lanes quickly.” The officer arrested JosÃ© and sent him to the SA Border Patrol station.
According to JosÃ©, who had no criminal record, as soon as the CBP car turned its light on he pulled over. The agent, he said, ran towards his car, opened the passenger door and asked him, in English, if he had a driver's license. JosÃ© replied he didn't speak English, so the agent asked him again in Spanish. JosÃ© said no, and the agent asked for work permit (JosÃ© said no) and nationality.
“Then, he physically pulled me out through the passenger side and put handcuffs on me,” said JosÃ©, who was then sent to detention.
According to the written decision of immigration judge Glenn P. McPhaul, at JosÃ©'s hearing on February 14, 2008 agent Salinas said that when he is patrolling “he looks for passengers in the back seat of cars, the expressions on the faces of the passengers, and how they react to the Border Patrol vehicle in assessing whether to stop a car.” Salinas also testified that he often stops “construction workers or smugglers.” The judge wrote the agent was “non-responsive when asked how one Hispanic person might stand out from another as an illegal alien when the Hispanic population is so high in San Antonio.”
After saying that JosÃ© “looked stiff and nervous, clenched the steering wheel” and “did not look at him,” Salinas finally said JosÃ© “looked like an â??OTM,' that is, someone â??other than Mexican,' because of his cheekbones, jaws, ears, and forehead, but not because of his skin color.”
“The agent testified that he thought `JosÃ©` was nervous because he was looking straight ahead,” wrote the judge. “He also said that if a driver gives a quick glance to the side and then looks straight ahead, that too appears as a nervous reaction. Since both looking straight ahead and quickly glancing to the side can be considered suspicious activity, `JosÃ©'s` failure to look at the Border Patrol vehicle cannot be considered a factor in assessing whether to stop him.”
The judge also noted that the clenching of the steering wheel argument is bogus. “Obviously, cars are driven by gripping the steering wheel.”
The judge dismissed the case after concluding that “the only basis for the agent's stop was that `JosÃ©` â??looked like an alien.' ”
“Further,” wrote the judge in his concluding paragraph, “the fact that `Department of Homeland Security` officers receive training in Fourth Amendment law, as the agent did in this case, supports the inference that when a DHS officer makes a stop solely based on race, he has deliberately violated the law or has acted in conscious disregard of the Constitution.”
But similar traffic stops continue.
On December 31, 2008, a construction worker named Juan and his three passengers where arrested by CBP officers Leija and Delgado after their pick-up truck drove by the officer's assigned area on Highway 151. The reason? They looked “stoic and nervous.”
On May 15, 2009, a Guatemalan named Israel was a passenger in an eastbound truck on I-10 when “agent Salinas” (the same Salinas?) noticed they were “very nervous” and had “an uncomfortable-looking forward stare.” Israel and the driver were followed and pulled over by three CBP cars. In his sworn statement, Israel mentions that, while he was handcuffed in the back of one of the patrols, he saw something that suggests the CBP doesn't waste any time.
“Two of the agents that were standing outside the third BP vehicle pointed at the agents that had put me in the Border Patrol car, to look at a red Ford pick up truck that was passing by,” Israel said. “The first Border Patrol car (the one I was in) flashed its lights and went after the red truck, `and` the other two `Border Patrol` cars then followed. I saw them surrounding the truck, and they got three young men from the truck, handcuffed them and put them in the second Border Patrol.”
On January 15, 2009, an undocumented, San Antonio-bound Mexican construction worker named DamiÃ¡n and four passengers in a double-cab truck, were stopped just outside of San Angelo. “I asked `the agent` why he had stopped us,” DamiÃ¡n testified, “and he told me because of the stuff we had in the truck and because we looked â??Mexican.' ”
Melchor, another Mexican construction worker, and his three passengers were arrested by agents Salinas, Leija, and Delgado on November 25, 2008, because they “believed the truck may be disguised as a construction vehicle so as to transport illegal aliens further into the United States,” according to the official report. “The agents also noted that the passengers were stoic and appeared to be extremely nervous when encountered by the agents.”
“Being present in the U.S. without valid documentation is not a crime, it is a civil violation only,” said PÃ©rez. “The catch is that, since the Supreme Court has determined that immigration violations are civil in nature, due process does not apply in immigration proceedings. There's no right to counsel, there's no right to evidentiary rules â?? government hearsay is commonly admitted â?? `and` there's no right to cross-examine government witnesses, etc.”
“Technically speaking, the person in removal proceedings does have the right to cross-examine government witnesses, but as a practical matter that right is not very enforceable,” said David AntÃ³n ArmendÃ¡riz, a partner in the law firm. “As to the right to counsel, `the detainees` have no right to appointed counsel as in criminal proceedings, but they do have the right to pay a lawyer to defend them.”
In the case of Melchor, he was detained for at least 16 hours before he was allowed to speak to a lawyer. As in most cases, he was given the option of signing an I-826, voluntary return to Mexico, which he signed before obtaining the representation of ArmendÃ¡riz.
“`What the CPB is doing is` entirely illegal but they do it because they know they can get away with it,” said ArmendÃ¡riz. “That is to say, there is no effective deterrent for their illegal conduct.”
But didn't the judge on the first case questioned the agent's credibility and threw the whole thing out of the window? Yes, but the CBP is a foxy bunch and, according to PÃ©rez and ArmendÃ¡riz, they're now no longer bringing the agents forward to defend their actions.
“The last thing they want is to have to bring an agent into the court room to swear as to the legality of their actions,” said ArmendÃ¡riz. “It might be that they know what they're doing is illegal. What happens when they do bring an agent to the stand is what happened on that first case: The story falls apart and the judge throws the case out. So they attempt to defend their cases in other ways.”
The government can provide alternative evidence of “alienage,” an immigration law term to describe the fact of being an alien, or not a citizen of the United States. For example, a landlord can testify that the detainee showed him a fake ID in order to rent an apartment.
“Essentially, the government is trying to sidestep the whole issue of the illegal arrest,” says ArmendÃ¡riz. “By producing alternative evidence of alienage, the government is taking the position that the issue of the illegal arrest is irrelevant to the administrative removal proceeding, because independent evidence of alienage exists and that is enough to deport the person.”
So the other option is a federal court action, and good luck with that one.
“First of all, the system deliberately creates financial burdens or disincentives to bringing a suit,” says ArmendÃ¡riz. He explains that, theoretically, a person could either file an FTCA suit (named after the 1946 Federal Tort Claims Act, passed by Congress in order to provide a limited waiver of the federal government's immunity when its employees are negligent), or a Bivens Action (named after Webster Bivens, who in 1971 successfully sued six federal agents for illegal search and arrest), but it is unlikely that anyone in, say, Melchor's position, could have the means to take advantage of either one.
“Attorneys fees are capped by statute at a ridiculously low rate for an FTCA suit, making this kind of suit unattractive to most attorneys” ArmendÃ¡riz said. “And without a competent attorney, it is unlikely an affected person will have the will, knowledge, and means to bring an FTCA suit. As for a Bivens suit, the defendant is a government agent, someone with shallow pockets, which again makes this kind of suit unattractive to most attorneys because the prospect of a decent payout is not great. “
Besides the money issues, it would be hard for an undocumented person to take advantage of the law given the fact that he/she are often deported within hours of the detention.
“But even if you aren't deported right away, it is most likely that you will remain detained, so how likely is it that you will have the strength, will, knowledge, money, time, etc., necessary to know your rights and to find a lawyer willing to take the case while you simultaneously fight to avoid deportation and avoid losing your home, job, or family?” said ArmendÃ¡riz. “Not very likely at all. And, even if you are a U.S. citizen or legal permanent resident, you're not likely going to want to sue the government.”
Paula Rivera, public affairs liaison for the Border Patrol in Houston, returned our message on February 16, but the QueBlog couldn't reach her when we called her back. Minutes later, CBP press officer Yolanda Choates told us she would put us in touch with a "Border Patrol public affairs specialist that runs the `SA` area." She also said, "That's fine, that's not a problem," when told about the nature of our story.
“People should not dismiss this problem as affecting only the undocumented,” says ArmendÃ¡riz. “They should be very concerned that there are government agents who care little about breaking this land's highest law in order to enforce the administrative rules governing immigration. All people everywhere should care if only because, when the Fourth Amendment rights of any of us are trampled upon by government agents, the Fourth Amendment rights of all us are endangered.”