James McCommons, in his book, Waiting on a Train: The Embattled Future of Passenger Rail Service, spends a year (parts of 2008 and early 2009) riding most of the different corridor and long-distance Amtrak routes in the U.S., talking with fellow passengers along the way but — more importantly — also interviewing top players in freight railroads, state governments, and Amtrak that will help determine the future of rail service. The book is a solid piece of journalism about transportation policy and politics, as well as a decent travel memoir. If you want to know more about the book, I recommend Philip Longman’s review in the Washington Monthly.
Relevant to this blog, however, was a short passage on pp. 77-78, when McCommons is riding the Lake Shore Limited from Chicago to New York:
In Erie, we were just twelve minutes behind schedule until two border patrol agents with automatic pistols and radios got on board and spent a half hour walking through the coaches asking for IDs from Asian and brown-skinned folks. If it wasn’t ethnic profiling, it sure looked like it. What seemed more outrageous was the decision to hold up the entire train. Decades ago, when a train schedule was sacrosanct, you needed a good reason, but this search looked awfully routine.
Here’s an example of such a stop, captured on video:
Roughly a year later, the New York Times brought far greater attention to the practice of Border Patrol agents conducting immigration enforcement actions on trains and buses near the U.S. border with Canada, confirming McCommons’ suspicion that the practice was quite routine, indeed. After Families for Freedom successfully sued for access to Homeland Security records about such arrests on transportation near the northern border it released a report in November, along with the NYCLU and the NYU Law School Immigrant Rights Clinic, called Justice Derailed [PDF].
From the data obtained from DHS, the Justice Derailed report notes that the “transportation raids” overwhelmingly targeted people in upstate New York who had already been present in the United States for longer than a year, rather than recent border crossers (“76 percent of those arrested on transportation raids in Rochester had been in the United States for more than a year, and 12 percent of these individuals had been present for more than 10 years.”). While federal law and regulations allow Border Patrol agents to work within 100 miles of the U.S. border, the report argues that such actions on trains and buses are roving patrols and therefore subject to Fourth Amendment standards, relying on United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and other cases. The report states on pg. 21: “In these situations, CBP [U.S. Customs and Border Protection] argues, they do not need to have reasonable suspicion about an individual rider to ask a question because the encounter is consensual, and riders are free to ignore or not respond to the questioning.” But as the report points out, on pg. 21, in practice very few people would actually refuse to answer:
What Border Patrol fails to recognize is that when an armed agent questions passengers on a train or bus, sometimes in the middle of the night with a flashlight glaring at the rider’s face, few individuals would feel that they have the right to refuse to answer the agent’s questions. These encounters, which CBP describes as consensual in order to circumvent constitutional protections, all too often feel more like coerced consents as the setting for the questioning would make few passengers believe that they have the ability to refuse to answer questions. Indeed, passengers and community leaders have echoed this sentiment that the Border Patrol agents’ questioning is coercive in nature and refusing to answer is not a realistic option.
The report then cites to the Supreme Court’s decision in Florida v. Bostick, 501 U.S. 429, 438 (1991), which stated that “‘Consent’ that is the product of official intimidation or harassment is not consent at all.”
You can see the Border Patrol in action in the following video. Note that the agents move right along when someone responds that they are a U.S. citizen, and also move along with the person recording the video refuses to answer. The person making the video then asks one of the agents later on what would constitute “reasonable suspicion,” and he responds: “Accent… dress… you know, different customs… suspicious shaking, nervous… a lot of things.” When asked what happens when the officer has suspicion but the person won’t answer, the officer replies “Then I can keep asking.” When asked if the officer could take someone off the train because of that suspicion, the officer replies, “Yes.” As the conversation winds down, the officer even asks the video-recorder to state her name, which she declines to do.
Another video produced as part of a student project at Syracuse University reveals how Border Patrol agents essentially treat the encounters as non-voluntary, starting around the 0:55 mark of the video. You can see how the agent doesn’t go to any great lengths to imply that a response to his question is voluntary.
Caught in Transit: The Rochester Border Patrol Station from The NewsHouse on Vimeo.
A rough transcript of the exchange starting around 0:55:
Border Patrol Agent: How’re you doin’, sir, I’m with the United States Border Patrol. Can you please state your citizenship?
Passenger: What do I look like?
Border Patrol Agent: Well, you know what, what does an American look like?
Passenger: That’s a shame… do I look…
Border Patrol Agent: We are a true…
Passenger: … like I’m from Zimbabwe?
Border Patrol Agent: … we are a true melting pot, sir. We come in all shapes and colors, and this is not about ethnicity…
Passenger: I was born in Los Angeles.
Border Patrol Agent: … or race. It’s all about nationality. Thank you, sir, that makes you a United States citizen.
Among other things, the Families for Freedom report also shows that most people arrested during such checks are detained, and that most arrestees are people of color not from Canada. Similar to McCommons’ suspicion in Waiting on a Train, the report notes that “accounts of [Customs and Border Protection] operations raise serious concerns that Border Patrol agents resort to racial and ethnic profiling techniques to determine who to stop, question or arrest” (pg. 26 of the report).
The whole report is worth reading, not only for the look at the data DHS provided on these arrests, but also these concluding thoughts:
Moreover, there is the underlying question of whether Border Patrol officers should be engaged in enforcement actions on domestic trains and buses in the first place. Do we want to live in a country where armed officers approach Americans engaged in no wrongdoing and ask them to produce papers to prove that they are indeed Americans? Since New York City falls entirely within 100 miles of the border, should armed Border Patrol agents ride the subway asking passengers questions about their citizenship and detaining individuals who cannot prove their status? Customs and Border Protection claims this authority, yet most Americans would find it objectionable.