What a Border Patrol agent did to two US citizens is alarming —and probably legal.
Two American women are furious that a Border Patrol agent in a small town in Montana asked them for identification at a gas station because they were speaking Spanish.
Ana Suda, who is originally from Texas, was chatting with a friend as they waited in line to buy eggs and milk Wednesday night at a convenience store in Havre, Montana, when the agent approached them and asked for their IDs, she told a local television news reporter for MTN News.
The agent detained them for 30 to 40 minutes in the parking lot, and Suda began recording the encounter. In the video, which has been viewed at least 40,000 times on YouTube, the agent calmly explains that he stopped the women because they were speaking Spanish in an area where few people do.
That upset Suda and her friend, who say they felt unfairly targeted because of their race, and because the agent seemed to be criminalizing the Spanish language. Both women are US citizens and were later released.
It’s alarming that a Border Patrol agent did this. What’s more alarming is that it’s probably legal. Congress has given agents broad authority to patrol the US border zone — any area within 100 miles of a land or water border — and to stop and question people they suspect of being in the country illegally. The Supreme Court has upheld this practice, with a few exceptions.
The Montana video is the latest Border Patrol encounter that has received wide press and social media attention in recent months. These incidents have underscored just how much power these agents have.
Most Americans live in the so-called border zone
Recent videos of Border Patrol agents boarding Greyhound buses and Amtrak trains in Florida and New York to question passengers about their citizenship status have gone viral on social media, prompting outrage over the perceived violation of constitutional rights and fueling anxiety about an anti-immigrant crackdown.
Suda’s case is even more shocking, as she was stopped while buying groceries. The Fourth Amendment gives Americans a certain right to privacy and protection from unreasonable government intrusions and searches. But near a US border, the bar for what is considered a “reasonable” stop is far lower than for the rest of the country. Border Patrol agents can question anyone within 100 miles of a US land or coastal border about their immigration status, as long as they have a “reasonable suspicion” that the person may be in the country illegally.
Most Americans live in this so-called 100-mile zone. It covers all of Florida and most of New York state. It covers several other states entirely — including New Jersey, Delaware, and Rhode Island — the nation’s capital, and the country’s largest cities, including New York City and Los Angeles.
Suda and her friend were stopped in a town that is 35 miles from the Canadian border. And in this zone, Border Patrol agents have a lot of freedom to ask people about their immigration status.
It’s legal for agents to ask a person about their citizenship status, with some exceptions
Congress gave immigration agents enormous power when they passed the Immigration and Nationality Act of 1946. The law granted immigration agents the authority “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” and to "board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle." However, they could only do this "within a reasonable distance" from an external US boundary.
At first, that distance was just 25 miles. But in 1953, the Department of Justice published a rule redefining a reasonable distance to "a distance of not exceeding 100 air miles of any boundary of the United States." In 2013, a group of senators tried to shrink the 100-mile zone to 25 miles along the northern border. The provision was added to a bipartisan immigration reform bill that passed the Senate that year, but a similar bill never made it through the House.
Over the years, the Supreme Court has upheld Border Patrol agents' authority to stop and search people in the border zone, while also defining some limit to their powers. For example, the Court has ruled that agents must have probable cause to believe that someone committed an immigration violation to search their car in a border zone, but they only need a reasonable suspicion (a lower standard of proof) to stop and question them. If they establish a roadside checkpoint within the border zone, they can stop and question anyone who drives through about their immigration status.
Agents are even allowed to consider race as a factor in stopping someone, as long as that person’s race is not the sole reason for doing so.
In United States v. Brignoni-Ponce, a 1975 Supreme Court case, the Court ruled that it was a violation of the Fourth Amendment for Border Patrol agents to stop a car only because the driver looked Mexican. But while the Court agreed that “apparent Mexican ancestry” does not, on its own, justify reasonable suspicion that a person is undocumented, the justices did rule that it is a “relevant factor.”
To justify a stop, the Court said an agent needs several reasons to pull over a car near the border, such as observing a heavily loaded van or a car with an unusual number of passengers. That could also include “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In other words, race can be part of the equation.
It’s hard to know how often these stops happen
The Department of Homeland Security doesn't publish data on how many people agents stop and question in the border zone, only how many people they detain. In 2017, Border Patrol agents arrested 310,531 people at checkpoints and roving patrols across the country. This includes people apprehended trying to cross the border illegally.
Details of these arrests are scarce, and immigrant rights groups have repeatedly tried to get more information through Freedom of Information Act requests.
In 2012, Families for Freedom, a legal aid group for immigrants in New York, succeeded in suing the agency for records related to immigration arrests at bus and train stations in the state.
What they discovered was alarming: At one bus station in the Rochester area, Border Patrol agents mistakenly arrested 300 people with legal status from 2006 to 2010. That included immigrants with green cards and visitors with tourist visas. It also included 12 American citizens, according to a 2013 report from the group.
Border Patrol agents eventually released everyone who had legal status, but the practice has outraged civil liberties groups.
Lawyers for the American Civil Liberties Union have repeatedly criticized the 100-mile zone, saying that it subjects nearly two-thirds of the US population to Border Patrol's "so-called investigatory detention and warrantless searches."
Lawmakers are starting to pay attention
Congress gave Border Patrol agents all this power, and some lawmakers now want to hold them more accountable.
Sen. Kirsten Gillibrand (D-NY) introduced a bill earlier this month to place more scrutiny on Border Patrol agents when they stop and question people.
The Department of Homeland Security Accountability and Transparency Act would require border patrol and immigration enforcement agents to document every instance when they stop, search, or interrogate people. The bill is co-sponsored by Democratic Sens. Elizabeth Warren (MA), Tom Udall (NM) and Jeff Merkley (OR). The law applies to all stops by agents who work for US Customs and Border Protection (CBP) and US Immigration and Customs Enforcement (ICE).
The bill would require the agencies to start collecting data every time officers question someone about their immigration status when they are not at an airport or border crossing. They would need to report the time, date, and place of each stop, and the basis for questioning someone and the duration of the stop, among other details. The agents would also need to report information about permanent and temporary immigration checkpoints set up in the border zone. The information would be reported annually to Congress and made available to the public. (According to Gillibrand’s office, the bill is partly a response to this Vox article and other media reports about the Border Patrol’s practice of questioning bus and train passengers.)
“Keeping our country safe cannot come at a cost to basic human rights,” Gillibrand wrote in a statement to Vox. “When border patrol agents stop and question people in New York and in many places across the country, they aren’t keeping data about why they targeted a particular person or what happened during their encounter.”
Such a bill wouldn’t prohibit Border Patrol agents from questioning people at gas stations, or limit their enforcement authority, but it would add transparency to the process and would make agents more accountable for their actions.
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Breaking News: Stopping Americans for speaking Spanish: the latest evidence that Border Patrol agents have too much power - News Paper
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