Trouble with Profiling

by Jude Joffe-Block

This is a story about looking for something, without exactly looking for it.

Ismael Ramos in front of Lake Pleasant on the Olympic Peninsula this year.

A few years ago, Ismael Ramos and some friends were riding along a two-lane highway on the Olympic Peninsula. The peninsula is in Washington State, but right near the Canadian border.

It was the summer before Ramos’ senior year of high school, and his friend’s dad was driving them to rent tuxedos for a quinceañera party. A quinceañera is a kind of Latin American “Sweet 16” for 15-year old girls.

As they were driving, they passed a U.S. Border Patrol vehicle–a white SUV with a green stripe–stopped by the side of the highway.

Ramos remembered joking about it at first: “You know, truck full of Mexican kids, he is probably going to start following us.”

Then a little while later, they passed another Border Patrol vehicle. This time the car pulled a U-turn and started driving right behind them.

Washington’s Olympic Peninsula where Ismael Ramos lives.

“We weren’t acting suspicious in any way, clearly we didn’t have anything with us,” Ramos said. “So I mean there was just no reason for them to pull us over.”

But the agent did pull them over. He came up to the car, and then another Border Patrol car drove up.

“[The agent] said turn off the truck and so the driver did,” Ramos said. “And then he reached in and tried to take the keys out of the ignition, and he couldn’t, so the driver took them out and handed them to him.”

Then, as Ramos remembers it, the agent started asking where they were born. He wanted to see IDs from everyone, even though one of the kids was only 13.

The agent didn’t say why he had stopped them, but Ramos thinks he knows.

“I’ve got black hair,” he said. “I’m kind of like a light brown skin tone, I’m not really brown-brown, but I mean you can tell that I am a Hispanic.”

Ramos was born in Washington State, and like everyone born in the United States, he is an American citizen. In fact, there was only one person in the car–the driver–who wasn’t born in the US, and he is a legal permanent resident. The whole scenario made Ramos angry.

“I am just as American as you are, I was born and raised here,” Ramos said. “And so, why should I be the only one that has to be questioned? Or why is my ethnicity the one that has to stick out compared to everybody else?”

Ismael was stopped by a Border Patrol vehicle in Washington state that looked like this one, seen in Nogales, Ariz.
Credit: Jude Joffe-Block

The Rules

Federal law enforcement agents–such as those from the FBI, the DEA, and Customs and Border Protection–are forbidden from using race or ethnicity as a reason to suspect a certain person might be breaking the law.

The guidelines, however, do include some exceptions for border and national security, and in “exceptional instances,” but it’s not clear what counts as ‘exceptional instances.’

Hipolito Acosta, a retired Department of Homeland Security official and former Border Patrol agent who is Mexican-American, said that as a teenager living on the Texas border, he was stopped and questioned by border agents. These days, he says, there’s much less profiling along the border.

Still, he said, it is hard to keep racial or ethnic appearance completely out of border enforcement. “Let’s be real,” he said. “When we have the entrants coming in from the Southern border, the great, great majority are of Latin descent, whether they are Mexicans or Central Americans. Is that going to be considered? Of course it is going to be considered.”

In fiscal 2013 (October 2012-September 2013), the U.S. Border Patrol made more than 420,000 apprehensions of people coming into this country illegally. For years now, more than half the people caught coming in have been Mexican, and most of the rest were Central American.

And that raises the big question: if the Border Patrol’s job is to find and catch people coming into the country illegally, and most of the people who cross the border without papers are Latin American, should border agents be allowed to stop people because they look Latino?

In 1975, the Supreme Court said yes, as long as Mexican appearance isn’t the only reason for the stop. The case was USA v Brignoni-Ponce. Two years earlier, in March 1973, Felix Humberto Brignoni-Ponce had been driving two undocumented passengers along a highway north of San Diego. Brignoni-Ponce was Puerto Rican, and therefore a US citizen; one of his passengers was Mexican, the other Guatemalan. The Border Patrol stopped the car, and arrested Brignoni-Ponce for human smuggling.

Brignoni-Ponce fought the case, arguing that the stop was illegal; the Border Patrol agent admitted that the only reason he pulled over the car was because the people in it looked Mexican.

John Cleary, the federal public defender who represented Brignoni-Ponce before the Supreme Court, argued that that logic–pulling somebody over to investigate immigration status because they, or their passengers look Mexican–is just plain racist.

“Can they say that a person who appears to be of Mexican descent in the area of Southern California contiguous with the Republic of Mexico constitute some rational basis, reasonable suspicion that that person is an alien?” Cleary asked in his oral argument. “I would contend if such ever was the case that would be rank racism.”

Cleary also mocked the government’s assumptions that agents can recognize Mexican citizens by their grooming habits and other stereotypes. “You contest because they have coarse hands, that they wear coarse clothes, they have their haircut in a certain way,” he said. To hit home his point about the absurdity of it all, he added, “I’ve had my haircut once or twice in Tijuana.”

The deputy solicitor general Andrew Frey, who represented the U.S. government in the case, argued that agents should have broad discretion to question anyone they want in the border region, because they have the difficult job of securing the border.

“Suppose that a Border Patrol car is driving along the road and it sees a car drive by,” Frey said to the justices. “Six persons who appear to be Mexicans and I think that to ask the officer to ignore that fact would be to ignore the reasonableness requirement of the Fourth Amendment.”

The Fourth Amendment protects us from unreasonable search and seizure. But it does let law enforcement agents stop a car, if they have a reasonable suspicion—that they can back up with specific facts–that something illegal is happening.

The Court voted unanimously in favor of Brignoni-Ponce. But in its opinion, written by Justice Lewis Powell, the Court decided that Border Patrol agents may use “Mexican appearance” when they decide whom to pull over, as long as that isn’t the only factor.

“The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but, standing alone, it does not justify stopping all Mexican-Americans to ask if they are aliens,” Powell wrote.

Kevin Johnson, the dean of the UC Davis School of Law, has studied racial profiling extensively. He said the Supreme Court’s opinion looked like it limited the use of race in border stops, but instead it did the opposite.

“Some would say that it helped to institutionalize the consideration of race in immigration enforcement,” he said, “in a way that isn’t consistent with modern constitutional sensibilities.”

In any case, demographics, especially along the border, have changed dramatically since the Supreme Court decided Brignoni-Ponce. Latinos now make up more than 16 percent of the population, and the vast majority are in the US legally.

In fact, since 1975, lower courts have tried to find different ways to update the Supreme Court’s opinion. In 2000, for example, in a case called USA vs. Montero-Camargo, the 9th U.S. Circuit Court of Appeals said that in areas like Southern California with large Latino populations, “Hispanic appearance is of little or no use in determining which particular individuals among the vast Hispanic populace should be stopped by law enforcement officials on the lookout for illegal aliens.” In other words, when there are a lot of Hispanic people around, it doesn’t make sense to stop people because they look Hispanic.

The 9th Circuit Court also wrote that stops based on race or ethnicity, “send a clear message that those who are not white enjoy a lesser degree of constitutional protection – that they are in effect assumed to be potential criminals first and individuals second.”

But even that answer is not cut and dry. Six years later, a panel of judges from the same Circuit said that in parts of the jurisdiction with only a few Latinos, it is okay to consider Latino appearance as one reason in the calculus for making an immigration stop.

On Patrol

I wanted to get a feel for how the Border Patrol does its job, so I took a ride with agent Peter Bidegain, the spokesman for the agency’s Tucson office.

We drove along the border fence and on back roads in Southern Arizona. Around this part of the border, agents mostly stop people walking through the desert, whom they suspect of having crossed the border illegally. But agents can also stop cars, as long as they have reason to suspect something criminal is going on, which usually means drug or human smuggling.

“The vehicle may be coming out of an area where you have historically had a lot of smuggling,” Bidegain said. “It may be coming out of an area where a vehicle normally isn’t in that area, the vehicle may be too clean for an area, it may be too dirty for an area, it is not really one set thing, it is just kind of a whole set of circumstances that you can articulate.”

That all may sound vague. But that’s because more and more, the U.S. Supreme Court has been granting law enforcement broad discretion in deciding what facts justify a stop.

In USA v. Arvizu in 2002, for example, the Supreme Court reversed a lower court’s decision to throw out a stop where a Border Patrol agent had relied on seemingly innocent factors to justify pulling over a car. (It turned out the driver was, in fact, smuggling marijuana.) Among the reasons the agent cited for making the stop was that the driver slowed down and didn’t make eye contact when he spotted the agent, and that the children in the backseat waved in an odd way. In its decision, the Supreme Court said that border agents could rely on factors–such as the children’s waving, for example–that wouldn’t be suspicious on their own, but that, taken together, could seem suspicious.

“Basically it gives [the agents] a green light to consider whatever they want to consider in making an immigration stop,” said Kevin Johnson of UC Davis School of Law. Because agents have so much room to decide when to make a stop, he said, it looks like agents aren’t using race as a reason to stop people. But really, he thinks it’s just harder to tell what is really motivating a stop.

“The court, by not creating any bright line rules, and by giving great discretion to the Border Patrol officers, has made it increasingly difficult to really make sure and eliminate racial bias from entering into immigration stops.”

All of which is little comfort to Latino citizens like Ismael Ramos, who is still puzzled about why–depending how the law is interpreted–Border Patrol agents can legally consider his ethnicity suspicious.

“I live in a border area, but it is the Canadian border, not the Mexican border,” Ramos said. “So don’t you think, you know, they should try to be looking for some Canadian illegal immigrants?”

Ramos was part of a lawsuit that the American Civil Liberties Union and the Northwest Immigrant Rights Project brought against Border Patrol, accusing them of making unfair stops in Washington’s Olympic Peninsula. Border Patrol denied they’d done anything wrong. But in 2013, as part of a settlement, the agency agreed to share data about its stops in the area. The agency also agreed to provide local agents with a refresher course on the Fourth Amendment.

Meanwhile, though, more and more local police forces across the country have begun doing immigration-related enforcement, which means more agencies need to figure out what’s legal patrolling and what’s illegal discrimination.

Professor Jon Gould, American University was an advising scholar on this story.

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