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NYCLU says Border Patrol acting unconstitutionally in upstate NY

Border Patrol Agent Sandy Walters, Field Operations Supervisor, monitors a freight train crossing the International Bridge from Canada into Buffalo. The state Border Patrol is accused of discriminatory practices in a new report released by the New York Civil Liberties Union. AP photo
November 14, 2011
U.S. Border Patrol agents are acting unconstitutionally in raiding New York trains and buses in search of illegal immigrants, according to a new report by the New York Civil Liberties Union.

The report, titled "Justice Derailed: What Raids on New York's Trains and Buses Reveal about Border Patrol's Interior Enforcement Practices" highlights data accrued from October 2005 through December 2009 detailing every transportation arrest in the Rochester train station during that time period.

Two hundred of 2,788 of arrests made by Border Patrol agents were randomly selected for additional scrutiny. It also provides insight into how far Border Patrol is spreading its influence into New York, where 97 percent of citizens live 100 miles or less from the United States border.

The report, released by the New York University School of Law's Immigrant Rights Clinic, alongside the New York Civil Liberties Union and Families for Freedom, alleges that the Border Patrol has acted unconstitutionally by randomly boarding trains and buses they say are often nowhere near the Canadian border, and interrogating passengers about their citizenship.

The Rochester train station, studied in the report, is a stop on the Amtrak Empire Service Line that runs between the Canadian border at Niagara Falls and New York City.

Those unable to immediately provide documentation of legal citizenship were in danger of detention and deportation, although the numbers from the report appear to indicate that a vast majority of the arrests made were of residents who have legally been in the United States for an extended period of time.

The analysis says that 73 percent of those interrogated and unable to provide documentation of their citizenship were then brought to a detention center rather than being released to await word on their case.

"It transforms life, whether it's permanent citizens or people visiting this country," said NYCLU President Donna Lieberman. "It doesn't feel like this is the greatest democracy on Earth, it feels like a 'papers please' society and I don't think that's the kind of society that we are, should be, or pride ourselves on."

The data on Border Patrol arrests made from 2006 to 2009, obtained through a Freedom of Information request, shows that an overwhelming number of those arrested were male minorities, primarily Latin Americans. More than 73 percent of those arrested were of Latin American descent, while 11 percent of those detained were Asian. Seventy-seven percent were males, and 84 percent had what would be described as a "medium or black complexion."

During a teleconference on the report, its authors pointed to a number of what they call "disturbing" issues, such as an alarming number of instances in which Border Patrol arrests were made in conjunction with local and state police officers and many instances in which arrests were made far from any border.

The report also alleges that many of the arrests made were of people who have been in the United States for an extended period of time. Less than 1 percent of detainments were conducted of people who had crossed the Canadian border in the three days before the arrest; 76 percent were of citizens who had been in the country for over one year, and approximately half were of those who had been in the country for over ten years.

Those victimized are "people who have been long term residents in the United States…we're not talking about people who have just crossed the border, which is what Border Patrol is supposed to be focusing on," said Nancy Morowitz, a professor at the New York University School of Law Immigrant Rights Clinic.

"Justice Derailed" also expresses concerns that Border Patrol agents have begun to overstep their boundaries in questioning citizens on their legality in the United States, doing so in towns far from the border and not just on public transportation, often in joint operations with local and state police.

"From what we already know it's clear that the border patrol has strayed far from its mission of patrolling the border," said Morowitz.

"What we're witnessing is that border patrol is taking an ever expansive view of their jurisdiction and its bleeding further and further into the United States," said Udi Ofer, the advocacy director for the NYCLU. "We're continuing to monitor these activities [to] learn a little bit more about the severity and extent of these practices, but we are particularly concerned by joint operations with state and local police and Border Patrol agents."

The report makes several recommendations as to how the Border Patrol can reform this process, which they say is misguided and unconstitutional, both on trains and buses and in New York cities and villages in general.

It calls for an end to the Border Patrol practice of conducting raids on trains and buses, something which Ofer said "there has been some chatter" that it's going to be "reduced significantly…while that's a potentially positive development, we still don't know what the full truth is and I want to specify that."

Other recommendations in the "Justice Derailed" report include an end to any arrests made without basis of suspicion, a re-evaluation of the staggering number of those arrested who are then detained, and discontinuation of any arrest-based measures of performance for officers, which is a suspected motive for the sheer number of arrests made by Border Patrol.

The NYU School of Law Immigrants Rights Clinic, as well as the NYCLU and Families for Freedom hope this analysis will be the first step toward reining in what the report calls "an agency that appears to be driven by the belief that the regular rules of the Constitution do not apply to it" which is perpetrating practices "that threaten constitutional protections … [that] invite racial profiling, tear apart families and burden taxpayers with the cost of detaining individuals who were arrested while innocently going about their business."

"Upstate New York is not a Constitution-free zone," said Ofer. "The Border Patrol takes an extremely broad view of its mission that would disturb most Americans, who expect to be able to go about their daily lives without having to prove their citizenship status to armed government agents. These 'show me your papers' tactics belong in a police state, not the world's oldest democracy."

"Our basic concern is that these aggressive and biased tactics go beyond the border and threaten the safety of our communities and families," said Abraham Paulos, executive director for Families for Freedom. "It invites a rogue law enforcement agency that can enter trains and buses then go beyond that and get into our schools, our churches, our malls."

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