One of the fundamental problems exacerbated by the dramatic expansion of Customs and Border Protection is the largely unchecked practice of racial profiling. In December of 2014 the Justice Department issued new guidance forbidding federal law enforcement officers from using race or ethnicity as a factor when determining whether to detain or arrest individuals. This guidance reaffirms that “[p]rofiling by law enforcement based on a listed characteristic is morally wrong and inconsistent with our core values and principles of fairness and justice.” The Justice policy, however, contains a footnote appearing to exempt DHS with respect to “interdiction activities in the vicinity of the border.” Moreover, collaboration between local law enforcement and federal immigration enforcement often encourages local officers to engage in racial profiling, from which the federal agents invariably benefit in conducting their operations. The cases in this section demonstrate that racial profiling that occurs close to the border is as offensive—both legally and morally—as profiling which takes place in the interior of the United States.
On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neal. While in the checkout line, Ms. Hernandez gave a friendly hello to O’Neal who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, O’Neal proceeded to detain them. Even after giving O’Neal their Montana driver’s licenses, they were detained for forty minutes. The only reason both O’Neal and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.
On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (CBP) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.
On October 7, 2013, the Montana Immigrant Justice Alliance (“MIJA”) and four representative plaintiffs filed a lawsuit in the U.S. District Court for the District of Montana against Colonel Tom Butler, sued in his official capacity as acting Chief Administrator of the Montana Highway Patrol, and Attorney General Tim Fox, sued in his official capacity as head of the Montana Department of Justice.
In 2012, ABLE filed a federal court complaint on behalf of two Hispanic married couples from Norwalk, Ohio. The married couples, traveling in the same car and returning from work at a local nursery, were stopped by the Wakeman Police Department early one morning. Without reasonable suspicion or cause, the Wakeman police officer contacted the U.S. Border Patrol. When Border Patrol agents arrived at the scene, they proceeded to interrogate and verbally harass the occupants of the car. The individuals were aggressively removed from the car, handcuffed and taken to the Sandusky Bay Station. At the station, the individuals were then placed in a room where they were harassed and interrogated by ten to twelve different agents over the course of the day.
U.S. Court of Appeals for the Sixth Circuit (Sixth Cir. 13-3599)
In a related case to Muñiz v. United States Border Patrol, ABLE filed a subsequent federal court complaint on behalf of an individual who was questioned by two Border Patrol Agents while walking down a street in Fremont, Ohio, after picking up his son at school. The plaintiff believes he was targeted for questioning because he is Hispanic. He alleges in his Federal Tort Claims Act case against the United States that two Border Patrol Agents committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress. In 2013, the federal district court judge granted the United States’ Motion for Summary Judgment. The dismissal was appealed and, while pending in the Sixth Circuit, the parties were able to reach a settlement in which the Plaintiff received a nominal amount.
U.S. Court of Appeals for the Sixth Circuit (Sixth Cir. 13-4502)
In a related case to Muñiz v. United States Border Patrol, ABLE filed a Federal Tort Claims Action on behalf of a mother and daughter who allege that a Border Patrol Agent profiled them for arrest because they are Hispanic. The Plaintiffs were purchasing gasoline at a gas station in Norwalk, Ohio, when an Agent blocked their vehicle and started questioning them. This lawsuit against the United States alleges the Border Patrol Agent committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress. In 2013, the federal district court judge granted a motion for summary judgment filed by the United States. The Sixth Circuit, in a decision on August 13, 2015, affirmed the grant of summary judgment 2 -1, with the dissenting opinion stating that a factfinder could find that the Plaintiffs were falsely imprisoned before the Border Patrol Agent developed probable cause for an arrest.
In this individual right of action appeal before the U.S. Merit Systems Protection Board, Western Regional Office, Border Patrol Agent Froylan Mendiola challenged his removal from the Border Patrol and the agency’s efforts to require him to undergo a Fitness-for-Duty examination in retaliation for his protected activity as a whistleblower. Mr. Mendiola, a sixteen-year Border Patrol veteran with a consistently excellent work performance record, reported incidents of racial profiling which he witnessed at the Murrieta Border Patrol Station in early 2012. He was retaliated against as a result.
Mr. Gustavo Vargas Ramirez brought this Federal Tort Claims Act lawsuit against the United States for false arrest, false imprisonment, negligent and intentional infliction of emotional distress, and abuse of process arising from his unjustified arrest at the hands of Border Patrol (BP).
In this class action, three U.S. citizen plaintiffs challenged U.S. Border Patrol’s practice of routinely stopping vehicles on Washington’s Olympic Peninsula and interrogating occupants about their immigration status based solely on the occupants’ racial and ethnic appearance, in violation of their constitutional rights. On behalf of themselves and others who have been subjected to similar stops, the plaintiffs asked the court to issue an injunction ordering Border Patrol to halt all such stops until its agents on the Peninsula have received training and demonstrated, through testing, that they understand the constitutional and other legal requirements necessary to stop and detain an individual.
Fifteen individuals and two workers’ rights organizations brought this lawsuit to challenge Border Patrol (BP) agents and three local law enforcement agencies and their officers for their systematic racial profiling of Hispanic residents in three Ohio towns. Plaintiffs have been stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school. Plaintiffs allege that BP agents engaged in a pattern or practice of initiating these stops solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that they were present without authorization when they did so. Additionally, the suit alleges that BP encouraged local law enforcement agencies to profile Hispanics and detain them for BP.