An expert explains the laws behind those viral videos of agents stopping buses and trains to look for undocumented immigrants.
A Border Patrol agent during a training exercise in New Mexico. Photo by John Moore/Getty
On February 1, a video shared widely on Twitter showed Border Patrol agents asking people on an Amtrak train if they were American citizens. The 27-year-old who took the footage later explained to the Syracuse Post-Standard that the federal agent was questioning only certain people, raising in some people's minds the specter of racial profiling. That news came just a week after a separate video showed the same thing happening on a Greyhound bus in South Florida. To those already worried about America slowly transforming into a police state, this seemed like one more sign that immigration authorities are abusing their power. As one person on Twitter put it in response to the Syracuse video, "All those who voted for Trump are responsible for this most reprehensible behavior. But, I guess we shouldn't expect anything less from a #NaziSympathizer."
Leaving the Nazi comparisons aside, it certainly makes sense to wonder why Border Patrol is allowed to board a private bus or train without a ticket, not to mention question riders without a warrant or probable cause. Jordan Wells, a staff attorney at the New York Civil Liberties Union and a former Latinx rights scholar at the New York University School of Law, said that this practice predates the Trump administration but that it's become both more common—and more aggressive—in the past year. He told me that the authority they're relying on comes from the Immigration and Nationality Act (INA), which allows Border Patrol officers to search "any railway car, aircraft, conveyance, or vehicle" near the border for undocumented immigrants.
But Wells wondered whether such searches would hold up in court. "The question becomes, this statute, which has not been interpreted yet by the Supreme Court in light of the Constitution: Is it constitutional?" he said. "I don't think they've been forced to justify the practice in any formal setting."
Here's what else we talked about:
VICE: What should you do if you're undocumented and the Border Patrol asks for ID in these circumstances?
Jordan Wells: I think that all of us—undocumented or documented—have the choice to remain silent and not consent to any search of our belongings. And in general, that's a right everyone should be mindful of. As a non-citizen, if you do have a registration document issued by the government, whether it's a green card or a work authorization document, then you should be carrying that with you. And you ought to show that to the officer. As for the people who choose to invoke their right to remain silent and not engage with the officer's questioning, you have to remember that that itself cannot provide the necessary level of suspicion the officer would have to have to take you into custody. As a practical matter, it's at least going to prolong the encounter if you refuse to engage with the officer's questioning.
They're playing on people's intuition that they must cooperate. On the one hand, as a practical matter, they're imposing on people and playing on the hope that people won't know their rights. On the other hand, you see them defend this in various public statements as a consensual encounter. In person, it's an intimidating, direct request from an officer with a gun who's standing right in front of you. They're saying these are just consensual conversations. That's of course a total fiction. But in order to present themselves as within constitutional boundaries, they have to say that. And the reality is, what if someone said, "I'm not engaging with you. None of your business." Or to take it one step further, "I don't speak English." Do you think there's any chance that's the end of that encounter?
Obviously, the power dynamic between a Border Patrol agent and an undocumented person is different than between an agent and someone who has documentation or is a citizen. But if you're in the latter category, does refusing to show your ID if help those who might be in danger by jamming up the process?
Yes. I think people should consider asserting their rights. Thank goodness there's no obligation in the Constitution for US citizens to carry around identification. And obviously there's a Fifth Amendment right to remain silent. They should tell people around them to exercise that right, too. They could say, "I'm not required to answer your questions," or, "I wish to remain silent." And if you're at a safe distance from one of these encounters, you can record it on your phone and share it.
The way that the Amtrak incident in Syracuse was described makes it seem like white passengers were skipped over. If racial profiling is taking place, will this practice see its day in court like stop and frisk did?
That's another super important protection we all have, which is the Fifth Amendment's equal protection clause. Insofar as they are singling people out on the basis of impermissible characters like race, then an independent constitutional violation is being committed. I do think that the scrutiny that the agency is now under based on these viral videos should help expose them. But then there's two ways it could go. One is the dragnet version where everyone has to take out their ID, because they're talking to everyone. That's bad on its own as a Fourth Amendment matter. But then it would compound that if they make a show pretending that it's everyone but it's just people of color or people who speak with an accent. That would be an independent basis for finding the practice is unconstitutional.
Do undocumented people have the ability to file a lawsuit to challenge this sort of thing?
Yes, they do. Unlawful law enforcement action does not become lawful because of a person’s immigration status. Under longstanding Supreme Court precedent, the Constitution—including the Equal Protection Clause and the Fourth Amendment—protects everyone’s rights.
Lastly, are you freaked out by all of this? People have not missed the opportunity to call this practice reminiscent of Nazi Germany.
I don't want to put it in terms of Nazi stuff. But look, the ACLU of Florida tweeted out what people's rights were if Border Patrol boarded their bus. Look how Customs and Border Patrol responded—they puffed up their chest. For that law enforcement agency to clap back with that citation of a provision of law that seems to give them an extraordinary authority to board and search vessels and cars and aircraft—I think that's chilling. The Constitution is something that every law enforcement officer should know and be proud to apply in their duties. I think seeing this sort of zealous and prideful invocation of their authority to invade people's privacy is a scary thing to see in 2018.
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