Border Patrol Detains Two Americans for Speaking Spanish

When "reasonable suspicion" and free speech collide.

WaPo (“A Border Patrol agent detained two U.S. citizens at a gas station after hearing them speak Spanish“):

A Montana woman said she plans to take legal action after a Border Patrol agent detained and questioned her and a friend — both U.S. citizens — when he overheard them speaking Spanish at a gas station.

The incident occurred early Wednesday morning at a convenience store in Havre, Mont., a town in the northern part of the state, near the border with Canada.

Ana Suda said she and her friend, Mimi Hernandez, were making a midnight run to the store to pick up eggs and milk. Both are Mexican American and speak fluent Spanish, and they had exchanged some words in Spanish while waiting in line to pay when a uniformed Border Patrol agent interrupted them, Suda said.

“We were just talking, and then I was going to pay,” Suda told The Washington Post. “I looked up [and saw the agent], and then after that, he just requested my ID. I looked at him like, ‘Are you serious?’ He’s like, ‘Yeah, very serious.’ ”

Suda said she felt uncomfortable and began recording the encounter with her cellphone after they had moved into the parking lot. In the video Suda recorded, she asks the agent why he is detaining them, and he says it is specifically because he heard them speaking Spanish.

“Ma’am, the reason I asked you for your ID is because I came in here, and I saw that you guys are speaking Spanish, which is very unheard of up here,” the agent can be heard saying in the video.

Suda asks whether they are being racially profiled; the agent says no.

“It has nothing to do with that,” the agent tells her. “It’s the fact that it has to do with you guys speaking Spanish in the store, in a state where it’s predominantly English-speaking.”

[…]

Despite explaining this to the agent and showing him their IDs, Suda said, he kept them in the parking lot for 35 to 40 minutes. Though no one raised their voices in the video, Suda said she and Hernandez were left shaken and upset by the encounter, which ended around 1 a.m.

[…]

A representative from U.S. Customs and Border Protection told The Post the agency is reviewing the incident to ensure all appropriate policies were followed. Border Patrol agents are trained to decide to question individuals based on a variety of factors, the agency added.

“U.S. Customs and Border Protection agents and officers are committed to treating everyone with professionalism, dignity and respect while enforcing the laws of the United States,” the agency said. “Although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests, and take and consider evidence.”

Havre is a rural town with a population of about 10,000, about 35 miles south of the U.S.-Canada border. Border Patrol agents have broad authority to operate within 100 miles of any U.S. border, though they cannot initiate stops without reasonable suspicion of an immigration violation or crime.

This is a rare situation that is simultaneously outrageous and reasonable.

If we’re going to have Border Patrol agents charged with policing illegal immigration—and we are and should—they have to be given latitude to use their good judgment in ascertaining who is likely to be in the United States illegally. Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion. I don’t know how a Border Patrol agent could do his job while ignoring those clues.

Suda videotaped the incident, which the agent did not protest, and the officer treated her professionally. Why it took 35 to 40 minutes to check and verify their IDs is unclear. That seems excessive on its face but there may well be a bureaucratic explanation. In the post-9/11 era, we’ve added some significant hurdles to obtaining proper licensing and perhaps the women’s licenses were from states whose licenses aren’t Real ID compliant or who issue licenses to non-citizens.

That said, it’s obviously outrageous for American citizens of Latin descent living within 100 miles of a border to have to constantly prove that they’re US citizens—let alone if it’s more than a 30-second flashing of ID. Nor, quite obviously, should speaking another language with a friend be something that authorizes official harassment.

Thankfully, this was the first such time for Suda:

Suda said she is used to seeing Border Patrol agents in Havre because it’s so close to Canada, especially at gas stations, but had never been stopped before.

“It’s a nice town. I don’t think it’s a confrontational [population] here,” Suda said. “But now I feel like if I speak Spanish, somebody is going to say something to me. It’s different after something like this because you start thinking and thinking.”

As noted recently, this is much more of a problem along our southern border, which is a virtual Constitution-free zone.

So we have a Catch-22. Most of us want our borders secure and our immigration laws enforced. Most of us, I hope, would like to do that in a way that doesn’t render Spanish speakers second-class citizens. Practically speaking, though, I’m not sure this is achievable.

FILED UNDER: Borders and Immigration
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion

    I’ve got to disagree with this proposition. Speaking a foreign language does not and should not constitute reasonable suspicion in and of itself, even in a state such as Montana where the Spanish-speaking population, although not non-existent, is certainly lower than it is in other parts of the country. Even if one can make a case that it could be, that should have ended once the women in question presented the officer with valid identification. I suppose the only good thing about this encounter is that these women were not actually arrested, although the fact that they were detained for nearly an hour certainly doesn’t seem to me to be justifiable under the circumstances.

    Additionally, it’s worth noting that the problem you note in your post about the “Constitution-free zone” along the Southern Border arguably applies here as well since the town in question was within 100 miles of the Canadian border. The same policies that give the Border Patrol broad authority in the south also apply in the north.




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  2. R. Dave says:

    Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion.

    Is it really, though? Late night runs to a convenience store are basically the reason those stores exist. The number of perfectly legal Spanish-speaking immigrants and immigrants of Mexican descent in the US vastly exceeds the number of illegal immigrants. A quick Google search shows that over 40 million Americans speak Spanish as a first language and another 11 million are bilingual. The total number of illegal immigrants in the US is estimated to be around 11 million, so even if we assume every single one of them is a Spanish-speaking Latino, it’s still roughly 5 times more likely that those women were either citizens or legal immigrants than that they were illegal immigrants. I don’t see much of a reasonable basis for suspicion here, to be honest.

    I think perhaps the basis for your (and probably the BP officer’s) view that it is reasonable is the fact that Hispanic people in the US are statistically more likely to be illegal immigrants than other people. That’s true, just as it’s true that black Americans are statistically more likely to be criminals than white Americans, but in both cases, that’s the wrong statistic to look at to judge the reasonableness of a stop. The statistic we have to look at is the percentage of such stops that will be “false positives”, and as I noted above, the false positives in this case (and, for the avoidance of doubt, in the case of racial profiling of black people) are way too high for the stops to be reasonable absent a heck of a lot more circumstantial evidence than a late-night run for a gallon of milk.




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  3. James Joyner says:

    @Doug Mataconis: Certainly, speaking Spanish while looking Mexican wouldn’t be reasonable suspicion for an arrest on criminal matters, much less for a warrant. But within the context of border and immigration enforcement, I’m not sure what else an officer would go on?




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  4. @James Joyner:

    Is there evidence that this area of Montana is somehow a drawing point for illegal immigrants from 1500 miles away? I looked at the stats, and while Spanish isn’t a common language in Montana, it’s not uncommon either so the fact that two women happen to be speaking it doesn’t strike me as being all that unusual. Of course, I’ve only lived in states (Virginia and New Jersey) where encountering people who speak Spanish (not to mention a whole host of other languages) isn’t uncommon at all.




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  5. MarkedMan says:

    James, another way of looking at what you are proposing is that it is more important to catch illegal aliens than to not humiliate and degrade citizens because they choose to speak Spanish to each other.

    I’ve lived as an expat in two non-English speaking countries, and visited dozens more. I thank god I was not treated in such a humiliating fashion. Of course I am, like you, a middle aged white guy, so I am cut a lot more slack than the average Hispanic American.




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  6. @James Joyner:

    Also, it’s worth noting that the officer would have been required to have probable cause of a crime to place the women under arrest, which is, of course, a higher standard than mere reasonable suspicion.

    That being said, detaining someone for nearly an hour is pretty darn close to arresting them.




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  7. R. Dave says:

    @James Joyner: But within the context of border and immigration enforcement, I’m not sure what else an officer would go on?

    Unusual behavioral cues like avoiding the officer, acting extremely nervous, walking down the road with backpacks or suitcases at night, etc. Engaging in normal, everyday behavior while being a minority, however, should never be seen as a basis for reasonable suspicion.




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  8. MarkedMan says:

    @James Joyner:

    But within the context of border and immigration enforcement, I’m not sure what else an officer would go on?

    How about not harassing or questioning people simply based on their looks, language or accents? How about actual probable cause? Is it so important to catch illegal aliens that we have to humiliate people in public for a half hour every time an agent comes across someone who is “shopping while Hispanic”? How many other non-whites has this guy harassed?




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  9. Kathy says:

    Isn’t this as unreasonable as detaining people under suspicion of terrorism for speaking Arabic?




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  10. @MarkedMan:

    “shopping while Hispanic”

    A perfect description of what happened here.




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  11. Kit says:

    “Ma’am, the reason I asked you for your ID is because I came in here, and I saw that you guys are speaking Spanish, which is very unheard of up here,”

    And

    Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion.

    Damned if you do, damned if you don’t, I guess. Is this a case of reasonable racists reasonably differing?




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  12. KM says:

    The entire Southwest was Spanish-influenced for hundreds of years. Spanish was the de facto language until relatively recently when a flood of white retirees headed out there once air conditioned made it acceptable to them. The New Mexico state constitution is bi-lingual, for god’s sake! And yet speaking Spanish will *still* get you the skunk-eye from some people who automatically assume Spanish = illegal immigrant down there, let alone a place like Montana. It’s been burned into the conscious of haters that the language is someone a massive “clue” to something illegal going on and not, you know, one of the most common languages on Earth. It may not be common in Montana historically but that’s changing and law enforcement needs to recognize that.

    We are rapidly becoming a “papers, please” nation – the kind we spent the Cold War railing about. Notice nobody else seems to have given a damn about them being “possible” illegals for speaking Spanish. Not the cashier, not the other people in line, just the officer who happened to walk in. Either these women were known to the group or nobody else made the connection he did. So why did the officer feel the need to make them prove they were citizens when it was clearly not an issue for anyone else?




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  13. HarvardLaw92 says:

    @Doug Mataconis:

    I’ll second your disagreement. I speak pretty fluent Hebrew (thanks Mom …), along with French, fairly functional Mandarin and a few others. If I happen to be doing so, is it reasonable for an agent to assume I’m Israeli, or French (pretty sure they won’t think I’m Asian) and detain me?

    No …




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  14. Joe says:

    Shouldn’t a BP officer in Northern Montana be on the lookout for people ending all their sentences with the word, “hey”? We sure don’t need a bunch of Canadian sneaking into our convenience stores. I mean, which border is this guy protecting anyway?




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  15. SKI says:

    @James Joyner:

    Certainly, speaking Spanish while looking Mexican wouldn’t be reasonable suspicion for an arrest on criminal matters, much less for a warrant. But within the context of border and immigration enforcement, I’m not sure what else an officer would go on?

    Actual indications that an immigration crime was committed.

    James, you appear to be suggesting that speaking Spanish is evidence that am immigration crime has been committed. That sounds really close to being textbook racism – that just being Spanish speaking is evidence itself. I’d suggest you think about the implications…




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  16. Kit says:

    @HarvardLaw92: I speak pretty fluent Hebrew (thanks Mom …), along with French, fairly functional Mandarin and a few others. If I happen to be doing so, is it reasonable for an agent to assume I’m Israeli, or French (pretty sure they won’t think I’m Asian) and detain me?

    You had me at Hebrew. Papers, please.




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  17. HarvardLaw92 says:

    @Kit:

    התגובה שלי לא תהיה מנומסת




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  18. Timothy Watson says:

    @Joe: We don’t want those shifty Canadians coming into our country and bringing their politeness with them!




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  19. wr says:

    So if it’s reasonable to an agent of the government to detain citizens for an hour because they spoke in a language he doesn’t approve of, what other reasons would you find reasonable? If they spoke English with an accent? If they were buying Doritos and burritos? If their skin was brown?

    Or what if the women were white but were polite to the clerk, so the agent decided they must be Canadian? Would that be reasonable?

    I guess the question is what level of conformity to white, middle class behavior must citizens hold before it’s reasonable for them to be detained on suspicion of whatever the agent in question feels like?




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  20. SKI says:

    @HarvardLaw92: Be nice… It is Yom Tov.




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  21. MarkedMan says:

    @KM: I agree with your post, and tag on an addendum. The red states in general probably have the highest ratio of migrant workers, mostly hispanic, in the country, mostly because they are still more farming/ranching oriented than the average blue state. And it’s a dirty little secret that the US Immigration service is used to keep the migrants in line. Your workers start complaining about conditions or slow or short payments? Coax them along to the end of the season and then drop a dime to the Feds and they swoop in and take away your problems and you don’t have to even pay them their last check.

    I know this from personal experience, not in Montana, but in south suburban Chicago. One of the first “real” jobs I ever got was at 15, when I walked into a local restaurant / coffee shop and asked if they needed any help. They hired me on the spot. It turns out that they were owned by the Greek mob (quite the education for teenage me. I could tell you stories! Mostly about how unglamorous mob life is.) and they made it an unofficial dpolicy that only the waitresses and management were legal. Busboys and dishwashers were all hispanic and the cooks were young Greek draft dodgers. So why did they hire my red white and blue ass? Because earlier that morning the Feds had showed up and arrested all the hispanic staff. Amazingly, every single one of the illegal Greek cooks were either out of the restaurant right in the middle of morning rush or were never questioned by the Feds, which was odd because half of them didn’t even speak English. Later on I pieced together that the hispanic staff had more or less united because they felt they were being mistreated or cheated in some way, and so the manager dropped the dime. I showed up right when the waitresses were telling the manager that they were perfectly happy to walk out the door rather than bus their own tables.




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  22. Lynn says:

    @Joe: “people ending all their sentences with the word, “hey”? ”

    It’s “eh?”

    The cops here in MN would be really busy … though the white folks saying “eh” would probably be questioned after the black folks speaking Somali or Oromo, and the brown folks speaking Spanish.




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  23. MarkedMan says:

    @HarvardLaw92: Tangent alert: I gotta ask; how did you come by Mandarin?




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  24. HarvardLaw92 says:

    @MarkedMan:

    We’re an international firm. The emergent economic superpower in the world is China. Indeed we have multiple offices in China. If we expect to do business there, Mandarin is close to being a required skill. The firm underwrote intensive immersion training for sectors (like mine – M&A) where the language skill gives us a competitive advantage.




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  25. Franklin says:

    @HarvardLaw92: Thank you Google Translate.




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  26. MarkedMan says:

    @HarvardLaw92: If you are ever in the Baltimore / Washington area I’d love to buy you a drink and hear about what it is like working the China side. I lived in Shanghai for 4 years helping to set up and run an R&D center and found that the stuff I thought I would hate such as figuring out what kind of legal entity our center should be or the differences between how the CFDA and the FDA views regulatory compliance, was actually pretty fascinating.




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  27. HarvardLaw92 says:

    @SKI:

    I was nice, Shavuot notwithstanding 🙂




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  28. James Joyner says:

    @R. Dave: @MarkedMan: @R. Dave: @Kit: @wr: As noted in the OP, the length of the detention strikes me as problematic but there may be technical reasons that justify it. As noted in the story that inspired my post a few days back on a massive Constitution-free zone:

    So what criteria do agents use to decide to stop a motorist or traveller? Can they use a person’s race or ethnicity? Yes, as long as it’s not the only factor, according to one Supreme Court ruling from the 1970s. In 2000, however, the 9th Circuit court of appeals, which covers the border states of California and Arizona, rejected ”any reliance on Hispanic appearance or ethnicity” in making roving patrol stops, citing the changing demographics of the country. It remains to be seen whether this precedent will be applied elsewhere.

    “That’s really significant because many of the border enforcement mechanisms just don’t catch up to the reality of life at the border,” ACLU‘s Rickerd said.

    CBP and DOJ guidance also allow border patrol agents to profile under certain conditions—a remarkable fact given that 72 percent of the U.S. minority population lives in the 100-mile zone. Some of the highest concentrations are in areas where the border patrol presence is the heaviest.

    I find that highly problematic. But my point is that we seem to have a choice between aggressive enforcement of our borders and precisely this sort of behavior by those charged with said enforcement.

    @Kathy: The odds that a particular Arab speaker is a terrorist is infinitescimile. It’s something like one in five for a Spanish speaker being an illegal immigrant. But, more importantly, the barriers on the criminal side are simply much higher than on the border enforcement side.




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  29. SKI says:

    @James Joyner:

    But my point is that we seem to have a choice between aggressive enforcement of our borders and precisely this sort of behavior by those charged with said enforcement.

    I would suggest that is a false choice. It is framing based on racism and laziness.




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  30. Bill says:

    @James Joyner:

    I’m not sure what else an officer would go on?

    Brain power. Since when is speaking a foreign language a crime? Legal immigrants who are now United States citizens do it routinely. My wife of almost 29 years (Our Civil wedding anniversary is May 30th) carries on conversations in Waray or Tagalog with friends of hers every day.

    In other outrageousness, Look what Hertz did to some of their paying customers. https://www.ajc.com/news/report-hertz-customers-arrested-after-rental-cars-mistakenly-reported-stolen/XaiHF9GFTqCdtP4jybRJZM/




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  31. RGardner says:

    Border Patrol along the northern border is overstaffed due to pork barrel politics after 9/11, when US politicians along the Canadian border were envious of all the money being thrown at the southern border. They used the attempted bombing of the Space Needle on the Millennium as one of their justifications (bomber was caught at Customs crossing the border from Canada in late 1999). On the Olympic Peninsula (only water border from Canada) the guys where so under-worked (bored) that they established checkpoints on the only major road in the area (US-101), resulting in an ACLU lawsuit in 2012 resulting in “As a result of the settlement, the U.S. Border Patrol has acknowledged that its agents on the Olympic Peninsula must base vehicle stops away from the border on reasonable suspicion that an individual may be involved in violating the law.” In 2011 a Border Patrol agent filed a whistleblower lawsuit saying his activities were taxpayer fraud.

    I’ve been to Havre, remote town that services a major BNSF line (to include daily AMTRAK Empire Builder), and ranches.




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  32. KM says:

    @James Joyner:

    But my point is that we seem to have a choice between aggressive enforcement of our borders and precisely this sort of behavior by those charged with said enforcement.

    Take the third option and go after the employers who hire illegals. Remove a major reason they are here and both of your choices don’t happen. Your suggestions are treating the symptoms and not the disease.




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  33. george says:

    @Doug Mataconis:

    In Montana they should be detaining people who say “Eh”, a lot. Or talk about hockey. Definite sign of illegal aliens from Canada.




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  34. Bill says:

    James,

    I have been reading this blog for 13 years. Contributed here twice, wrote at OTB Sports for 2-3 years and have thought pretty highly of you. That said- THIS POST HAS STEAM COMING OUT OF MY EARS. There is something deeply wrong if shopping while Hispanic aka speaking another language other than English when going about routine activities. is considered some kind of crime violation. What is disturbing is you didn’t pick up on this. What happened is outrageous. Crass stupidity and racist and thinking it is even slightly defensible, well…….. I am not going to say how I really feel because it would probably get deleted.




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  35. HarvardLaw92 says:

    @James Joyner:

    It’s driven by the same basic perception – “other”.

    I’ve experienced that exactly once. Some lowlife heard me speaking Hebrew with an acquaintance – and I’ll interject that I do not look like what I suspect many people would consider to be stereotypically Jewish, what I look like is probably closer to the hundreds of years of German heritage I actually have – and felt the need to tell me to “go back to your sand n***er hellhole”.

    I’ve never taken greater joy in shutting someone down, loudly and publicly, with the knowledge that I was born in Baltimore and he’s too stupid to know the difference between Hebrew and Arabic, so maybe he should consider just Shutting The F Up …

    These people are threatened by other, and react accordingly. This particular guy just has a badge.




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  36. teve tory says:

    David Begnaud

    Verified account

    @DavidBegnaud

    The name Montana is derived from the Spanish word montaña – meaning mountain; speaking Spanish there isn’t as foreign as some may think.

    8:40 AM – 21 May 2018




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  37. teve tory says:

    I’ve experienced that exactly once. Some lowlife heard me speaking Hebrew with an acquaintance – and I’ll interject that I do not look like what I suspect many people would consider to be stereotypically Jewish, what I look like is probably closer to the hundreds of years of German heritage I actually have – and felt the need to tell me to “go back to your sand n***er hellhole”.

    Pretty sure that guy owns a red MAGA hat nowadays.




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  38. Bill says:
  39. Kathy says:

    @James Joyner:

    The odds that a particular Arab speaker is a terrorist is infinitescimile. It’s something like one in five for a Spanish speaker being an illegal immigrant.

    So you’d be fine with four times as many legal residents and citizens being detained for speaking a certain language? Wouldn’t that effectively criminalize that language? Sure, only in places where it “isn’t as common.” What if it becomes more common? What about tourists?

    Americans are funny when it comes to language. They insist on everyone within their borders speak English, even though the US has no official language, and even though it’s a highly unreasonable expectation. If learning the local language were a requirement for visiting any place on Earth, tourism would die off quickly.




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  40. Daryl and his brother Darryl says:

    Despicable? Yes.
    Say what you will…this is the America that 62,984,825 Americans voted for.




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  41. Mister Bluster says:

    Suda asks whether they are being racially profiled; the agent says no.

    Today’s lesson in utter bullish!t




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  42. MarkedMan says:

    I’m not sure how tangential this is to the discussion, but I started crossing the border between the US and Canada in 1978 and the US immigration officials have always had a much higher percentage of loutish *ssholes than the Canadian side. Needlessly aggressive and borderline hostile.




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  43. EddieinCA says:

    @James Joyner:

    Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion. I don’t know how a Border Patrol agent could do his job while ignoring those clues.

    No. At the risk of being banned, go f**k yourself, Dr. Joyner. This is NOT REASONABLE. My mother and all of my aunts, despite being here 60+ years, citizens all, still prefer to speak Spanish to each other almost exclusively in public. Had this happened to my mother, who at 84 years old is still a badass and knows her rights, she would have ended up arrested, because she would have told the Border Patrol officer what I told you above. I speak in Spanish every chance I get in public because I don’t get to practice it enough.

    Had these women been speaking French, would they have been stopped? Chinese? Greek?

    No. They would not have. This is the worst kind of racial stereotyping. Spanish = illegal. Why doesn’t French = illegal? Why doesn’t speaking Chinese – illegal?




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  44. Joe says:

    @Lynn:

    The cops here in MN would be really busy … though the white folks saying “eh”

    Exactly! So those Minnesotan “eh”-sayers should only be detained if they talk that way at convenience stores in New Mexico, where they don’t sound like the local-born Americans, many of whom speak Spanish as a first language.




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  45. EddieInCa says:

    @Bill:

    That’s EXACTLY how i felt reading Dr. Joyner’s comments. STEAM COMING OUT OF MY F**KING EARS!




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  46. James Joyner says:

    @Bill: @EddieinCA: In this post and the previous one, my argument is that the way we enforce our laws against illegal immigration—particularly against Latin Americans—is probably incompatible with our Constitutional values.

    @HarvardLaw92: He may well be a racist; there are a lot of them working for Border Patrol. But he may well have simply been profiling and reacting to an unusual-for-his-town circumstance.




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  47. HarvardLaw92 says:

    @James Joyner:

    Any 1L would destroy that argument as racial profiling. You can’t reasonably expect me to believe – and you’re far too rational to believe yourself – that this guy would have treated a Caucasian woman speaking Swedish, for example, similarly. The basis of his suspicion has to devolve to “brown people speaking Spanish”. You don’t need me or any other attorney to explain why that’s a HUGE problem.

    Doug already expressed it well – simply speaking a foreign language is not a sufficient basis for reasonable suspicion. Barring a great deal more that isn’t being included here, the stop never should have happened at all. That it did, and further that it didn’t immediately end when these women produced sufficient documentation of their legal presence, is both an argument for firing the officer and a basis for a nasty civil lawsuit implicating the 14th Amendment against DHS.




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  48. EddieinCA says:

    @James Joyner:

    Again. I ask respectfully. Would any officer have stopped and interrogated two Chinese women speaking Chinese in Montana? Two men speaking German? Two women speaking Greek? Because I’m pretty certain none of those languages are spoken often in Montana.

    If the answer is “no”, then there is no reasonable reason for a stop. It’s profiling. It’s illegal.

    You’re too damn smart to not see this.

    WTF?




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  49. SKI says:

    @James Joyner: Might be time to take a step back and really read what everyone on this thread is saying and rethink your presumptions and your post.

    Put another way, stop digging…




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  50. James Joyner says:

    @HarvardLaw92: @EddieinCA: @SKI: So, I guess I’m trying to sort through a few things here: the state of the law, the nature of the problem, the actions of the officer, and the implications for Hispanic citizens.

    The last of these is obvious: It’s outrageous and awful.

    My lay understanding of the law, though, is that, with the exception of the 9th Circuit (which, come to think of it, includes Montana) racial profiling per se isn’t illegal for the purposes of immigration stops, so long as other factors are included. I don’t know whether merely speaking Spanish in the hearing of the officer is enough of an add-on.

    Obviously, BP officers aren’t stopping white people for speaking Swedish or Hebrew. But our major focus in terms of immigration enforcement is, not unreasonably, Hispanic.

    At the end of the day, I don’t think we should have Border Patrol officers detaining everyone they hear speaking Spanish. That would be outrageous. But I’m not exactly sure what constitutes “reasonable suspicion” in terms of immigration enforcement. It’s definitely a lower bar than required to arrest someone for violation of criminal law. Is it more or less than that required for a stop and frisk because their Spidey sense tells them you may have a weapon?




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  51. Not the IT Dept. says:

    I’m getting a little worried about you, James. Lately, you’ve been displaying a little too much tolerance for the kind of heavy-handed government action that KM refers to above as a “papers, please” mentality. Remember when we used to feel sorry for people who lived in those kind of countries? Remember how smug we were that Americans didn’t have to put up with that? That we were better?




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  52. Jen says:

    If simply speaking a foreign language meets anyone’s idea of reasonable suspicion, we’re heading to a very bad place.

    My best friend, born and raised in the US, met and married someone from Central America. He is now a US citizen and has been for years. They, and all of their US-born children, are bi-lingual and a couple of them are multi-lingual. They switch back and forth between English and Spanish all the time.

    What you are suggesting is that it would be a perfectly normal and appropriate circumstance for them to be detained at a convenience store, if, say, they were traveling across the country and happened to need to stop in an area not accustomed to hearing foreign languages.

    This is appalling, and frightening. Just no. NO. This is not reasonable, it is not appropriate, and no, I do not accept the suggestion that this is somehow justified.




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  53. HarvardLaw92 says:

    @James Joyner:

    Racial profiling isn’t illegal as a component of multi-faceted reasoning. By necessity, that implies multiple independent factors, of which racially motivated determinations are only one component, all of which are reasonably subjective of the existence of criminality. In this case, not only are both factors (again, assuming there isn’t a great deal more that isn’t being included) predicated entirely on a racially motivated evaluation, the reasonable conclusion – based on the proportion of persons who fit one or both descriptions being legally present – has to be that they’re more than likely not present illegally. Short version: not only is his reasoning evidently predicated entirely on racial stereotypes, it also doesn’t even comply with the available evidence concerning the racial stereotypes he’s basing his conclusions on.

    Neither of the factors (Mexican looking and speaking Spanish) are independently detachable from each other as indicators. Further, neither is illegal in and of themselves. It’s akin to saying “that black kid in Westchester was speaking really ghetto, so he must be up there to steal stuff”. The officer in both cases is making a subjective determination predicated not on a reasonable evaluation of the sufficiency of combined evidential factors, but instead on his/her own bias. Even more so when, presented with evidence that his conclusions were flawed, instead of releasing the women and apologizing for the misunderstanding, he doubled down and attempted to find something else to validate his racism. It’s enormously problematic.

    Short version: if these women sue, they’ll win




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  54. KM says:

    @James Joyner:

    t I’m not exactly sure what constitutes “reasonable suspicion” in terms of immigration enforcement.

    And that’s the problem – the times when questioning immigration status should be few and far in between. The idea of catching them “in the wild” so to be speak is rife with issues, potential constitutional conflicts and frankly violations of ethics and traditional American mores. Being an illegal immigrant is essentially a state of being rather then an active crime. How do you determine someone’s legally visually? You don’t and anyone that tells you different is begging for a lawsuit. You can demand ID at each and every police interaction but that would require a MAJOR social shift and equal application of requests – both of which simply aren’t happening.

    We’re trying to catch people engaged in a passive crime and we’re going about it all wrong. Instead, we’re making it adversarial and drawing in random people who’s negative experiences further sour the public on the idea. Border Patrol simply has no business being out and about “catching people”




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  55. Kit says:

    @James Joyner:

    To my mind, there is (or at least should be) a distinction between border control and immigration enforcement. The former should concern our land borders and some reasonably tight no-man’s land running along them, let’s say one mile (not 100). Officers charged with controling the border would be given great discretion within that sliver. They could pursue suspects as necessary. And that’s it.

    Immigration enforcement would be a wider, more nebulous affair, potentially involving any number of government agencies. As concerns the typical police officer, any immigration irregularities should be treated much the same as any other issue. Reasonable suspicion should apply across the board.

    Illegal immigration is a problem, but then again so is tax fraud. Buying bread should never constitute reasonable suspicion for anything. Sure, that makes policing difficult, but that’s the price we pay as long as we don’t wish to live in a police state.




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  56. James Joyner says:

    @Not the IT Dept.:

    Lately, you’ve been displaying a little too much tolerance for the kind of heavy-handed government action that KM refers to above as a “papers, please” mentality.

    I’m not at all sympathetic to the action. In this post and the “Constitution-free zone” piece that preceded it, I’m pointing to what I see as the inherent dangers in the enforcement of our immigration laws. By and large, I’m supportive of enforcing those laws. But they’re almost inherently going to be enforced in a way that hassles certain citizens, particularly those of Hispanic origin. I’m trying to figure out how to square that circle.




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  57. James Joyner says:

    @HarvardLaw92:

    Neither of the factors (Mexican looking and speaking Spanish) are independently detachable from each other as indicators. Further, neither is illegal in and of themselves. It’s akin to saying “that black kid in Westchester was speaking really ghetto, so he must be up there to steal stuff”. The officer in both cases is making a subjective determination predicated not on a reasonable evaluation of the sufficiency of combined evidential factors, but instead on his/her own bias.

    But haven’t the courts—with the exception of the one 9th Circuit decision—ruled that immigration enforcement, particularly in areas 100 miles from the border, is inherently different in that regard from the enforcement of criminal law?

    Even more so when, presented with evidence that his conclusions were flawed, instead of releasing the women and apologizing for the misunderstanding, he doubled down and attempted to find something else to validate his racism. It’s enormously problematic.

    I didn’t gather that from the written report. I’d agree that “doubling down” upon confirmation of their identity as citizens is indeed problematic.




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  58. James Joyner says:

    @Kit: As noted in the “Constitution-free zone” piece, I’ve long understood that we had these sort of policies at border crossings but had no idea that Congress had expanded, and the courts have upheld, massive exclusion zones—100 miles from both borders plus certain other areas—wherein lower standards of civil liberties apply.




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  59. SKI says:

    @James Joyner:

    I’m not at all sympathetic to the action. In this post and the “Constitution-free zone” piece that preceded it, I’m pointing to what I see as the inherent dangers in the enforcement of our immigration laws. By and large, I’m supportive of enforcing those laws. But they’re almost inherently going to be enforced in a way that hassles certain citizens, particularly those of Hispanic origin. I’m trying to figure out how to square that circle.

    Simple –
    Don’t profile.
    Don’t act like fascists or racists.
    Don’t accept immorality because it doesn’t impact you.

    Do:
    Check papers at the border.
    Followup on expired visas.
    Make employers liable for hiring workers who aren’t allowed to work here legally.
    Go to a National ID to make holding employers liable actually feasible but DON’T allow law enforcement to demand to see it without a legally justifiable criminal stop.
    Disband ICE’s Enforcement and Removal Operations (ERO) and start over without the racism and fascism that seems to be in their DNA.




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  60. EddieInCA says:

    @James Joyner:

    I up-voted your comment because I appreciate your response and honest engagement, and I appreciate your admission that you’re looking at it through competing prisms.

    You wrote:

    But I’m not exactly sure what constitutes “reasonable suspicion” in terms of immigration enforcement.

    Why don’t we leave immigrants alone and go after employers? Seriously. Why not go after the hotels? Farms? Ranches? Restaurant?

    The conundrum is that we like our cheap fruit and vegetables more than we want to admit. We like our cheap beef. We like our cheap chicken. We like our new houses to cost less. We like our swimming pools to cost 30% less to build than it would with US Workers. We like having pretty lawns, but only want to pay $50 per month to get it.

    So we allow big companies – big and small – to flout immigration rules, yet we go after the worker trying to better his/her life.

    Go after the companies hiring illegal immigrants. Start there.




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  61. Not the IT Dept. says:

    Maybe the question you should be asking is “why does this circle exist in the first place?” How did we get to the place where ANY American – Hispanic or otherwise – can be hassled because they had a private conversation in another language? Other commenters have pointed out that coming down harder on employers of illegal immigrants would be more effective than having officious busybodies demanding ID of American citizens.




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  62. SKI says:

    @HarvardLaw92:
    This covers the legal aspect pretty well.

    James, what we need you to also grapple with is the moral aspect. How we enforce our laws is, frankly, more important than what laws we enforce. Our immigration laws are born in racism and we need to acknowledge that reality. How ERO operates is a national travesty.




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  63. Kit says:

    @James Joyner: I’m supportive of enforcing those laws. But they’re almost inherently going to be enforced in a way that hassles certain citizens, particularly those of Hispanic origin.

    James, just how long would your patience hold if you were regularly pulled over because the police are looking for a suspect: white, male? Seems a guy on the other side of the country did something. Tomorrow, you are pulled over because you look like you might have a broadband connection, and large numbers of white males are known to illegally download copyrighted material. I’m guessing that you are supportive of enforcing those laws too (and countless others), right?




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  64. Kathy says:

    @James Joyner:

    My lay understanding of the law, though, is that, with the exception of the 9th Circuit (which, come to think of it, includes Montana) racial profiling per se isn’t illegal for the purposes of immigration stops, so long as other factors are included. I don’t know whether merely speaking Spanish is another of an add-on.

    That would be a bit like having a police report stating that a black man committed a robbery, then police officers detaining all black men they come across until they can prove they’re not the suspect.




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  65. MarkedMan says:

    @EddieInCA:

    So we allow big companies – big and small – to flout immigration rules, yet we go after the worker trying to better his/her life.

    This is extremely relevant even as stated, but I believe it is much more relevant than it appears at first glance. In two bit sleazy countries around the world “guest workers” are brought in with no chance of ever becoming citizens and then abused and mistreated. The government immigration authority is complicit in this, enthusiastically allowing themselves to be used as the bully boys to make sure the immigrants don’t start demanding fair treatment or safe conditions. Saudi Arabia is an example. Qatar is an example. And the US is an example. As long as the immigration service concentrates so heavily on the immigrant side rather than the employer side, they are little more than the thuggish enforcers of the employers.




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  66. MarkedMan says:

    @James Joyner:

    I didn’t gather that from the written report.

    The officer kept these two women standing in a parking lot under threat of arrest for 35 minutes after they identified themselves.




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  67. MarkedMan says:

    @James Joyner:

    I didn’t gather that from the written report.

    This isn’t that complicated. Basic human decency applies here. Capturing immigrants is simply not on the same plane as hunting for a serial killer or even an fleeing robbery suspect. It is not such a heat-of-the-moment crisis that it justifies detaining and humiliating random people like some friggin’ Gestapo country. Sure, maybe a racist piece of trash like Donald Trump thinks it that pressing, but for crissakes, he is just a racist piece of trash.




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  68. Joe says:

    @EddieinCA:

    Would any officer have stopped and interrogated two Chinese women speaking Chinese in Montana? Two men speaking German? Two women speaking Greek?

    I am reasonably confident this officer couldn’t tell the difference and might have taken the same action against two women speaking Greek if they looked ethnically Greek on the mistaken assumption they were Mexican women speaking Spanish. The point is that it’s not the language, it’s the ethnicity combined with foreign language that prompted this. In other words, profiling.




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  69. EddieInCA says:

    @MarkedMan:

    The government immigration authority is complicit in this, enthusiastically allowing themselves to be used as the bully boys to make sure the immigrants don’t start demanding fair treatment or safe conditions. Saudi Arabia is an example. Qatar is an example. And the US is an example.

    Yep. Like our current President: http://www.politifact.com/truth-o-meter/statements/2016/feb/25/marco-rubio/marco-rubio-says-donald-trump-had-pay-1-million-hi/

    From the link:
    The Polish employees were off-the-books, working 12-hour shifts seven days a week for $4 to $5 an hour, with no overtime. Some workers were never paid what they were owed.




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  70. Bill says:

    @Kathy:

    That would be a bit like having a police report stating that a black man committed a robbery, then police officers detaining all black men they come across until they can prove they’re not the suspect.

    We had something like that in Colorado not too long ago. https://www.denverpost.com/2016/12/30/bank-robbery-aurora-settlement-2012-mass-traffic-stop/




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  71. HarvardLaw92 says:

    @James Joyner:

    They do have additional powers (we should read that as they are afforded an additional degree of latitude by the courts) within the 100 mile zone. They’re empowered, for example, to conduct immigration checkpoints just to name one. That additional latitude does not extend to the suspension of the requirement of reasonable suspicion as a predicator to effecting detainment. That’s essentially sacrosanct. We’ve had a great deal of problems with Border Patrol agents misunderstanding / expanding their scope of power. This is just one example of that problem.

    Re: doubling down – these women adequately identified themselves as being legally present in the US. The second they did so, whatever reasonable suspicion he might have been able to establish (and I maintain that he didn’t establish it at all) went out the window, as did his cause for effecting detainment. His course of action should have been to immediately release them to go about their business. He didn’t do that, which brings a whole host of other problems – some grounded in the 14th Amendment, others not – into relief.

    Short version: the guy effected an illegal stop, and proceeded to compound that with false imprisonment, along other goodies. He created a mess that his agency will end up handsomely rewarding these women for. If nothing else, hopefully the threat of having to pay damage awards will motivate DHS to adequately train these women guys on what they can (and can’t) do.




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  72. MarkedMan says:

    @HarvardLaw92: I thought the Federal Gov was essentially immune from being sued?




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  73. Kathy says:

    @Bill:

    That was horrible.

    I might have given the police a pass if the robbery was particularly violent, with dead or wounded at the bank. Otherwise, it’s a terrible abuse of power.




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  74. An Interested Party says:

    Why don’t we leave immigrants alone and go after employers? Seriously. Why not go after the hotels? Farms? Ranches? Restaurant?

    Of course you know why we don’t go after employers…if illegal immigrants fed the money troughs of whores, er, politicians, they would be left alone too…




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  75. HarvardLaw92 says:

    @MarkedMan:

    Generally speaking, it is immune from suit, based on the doctrine of sovereign immunity.

    Congress enacted the Federal Tort Claims Act in 1946, providing a limited waiver of this sovereign immunity in certain circumstances. At the time that the act was passed, however, it explicitly exempted the waiver with respect to:

    Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights

    In 1974, however, Congress enacted a limited extension of the waiver with regard to six intentional torts arising out of “the acts or omissions of investigative or law enforcement officers of the United States Government”. The section further defines “investigative or law enforcement officers” as:

    any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law

    Border Patrol agents fall into that description. The six intentional torts for which the FTCA waives sovereign immunity with respect to the acts or omissions of federal investigative / law enforcement officers are: assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. All of this is covered in 28 USC § 2680(h).

    Generally, this waiver was held in the past only to apply during the execution of three specific activities: executing a search, seizing evidence, and/or making an arrest. SCOTUS, however, unanimously held in Millbrook v. United States (2013) that the waiver applies to any instance wherein a covered actor (federal investigator or law enforcement official) commits one of the six intentional torts at any time he/she is acting within the course of their office or employment.

    These women have a case …




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  76. Daniel Hill says:

    The agent claims, and I’m sure the CBP will back him up, that it wasn’t racial profiling. But I guarantee that if my wife and I were in that store speaking to each other in our Australian accents, we would NOT have been stopped and detained on the basis that we were “speaking Australian in a place where Australians are rare”.




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  77. Daniel Hill says:

    @An Interested Party: you do realize the people who own those businesses employing undocumented workers mostly vote Republican…




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  78. An Interested Party says:

    @Daniel Hill: But of course, hence, why the feds don’t go after the business owners…




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  79. Mu says:

    Speaking Spanish is a gift that keeps on giving, they use it as “reasonable suspicion” in southern New Mexico too. And when they wave the white guy with the blond kids through I’m sure that’s because they’re looking for a specific African American with a lisp.




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  80. de stijl says:

    I’m heartened that certain people’s minds can be changed with feedback. I’m bummed that that was his first take. He is one of our hosts here. Damn.

    Speaking Spanish is not a crime, nor is it a pretense for investigation. We have *no* official language here.




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  81. R. Dave says:

    @James Joyner: I’m pointing to what I see as the inherent dangers in the enforcement of our immigration laws. By and large, I’m supportive of enforcing those laws. But they’re almost inherently going to be enforced in a way that hassles certain citizens, particularly those of Hispanic origin. I’m trying to figure out how to square that circle.

    I think Kit’s post immediately before yours that I’m quoting points the way – i.e., more clearly distinguishing between border control and interior immigration enforcement. Border control would involve the kind of roving patrols and direct officer to immigrant interactions the BP is all about, but it would be limited to a very narrow area essentially right along the border, not the 100-mile exclusion zone ridiculousness they currently cover. Interior enforcement would be shifted away from catching individual illegal immigrants in their everyday life and more toward following up on expired visas and targeting employers who hire illegal immigrants.




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  82. Just nutha ignint cracker says:

    So, Speaking Spanish= racial profiling.

    Speaking Spanish + being female + being brown =/= racial profiling because of “multiple factors.”

    OOOOOOO Kay

    (I’m sorry, but my inner sob took over.)




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  83. Just nutha ignint cracker says:

    While I’m back, this conversation is beginning to remind me of the line from Casablanca:

    Major
    Strasser’s been shot–round up the usual suspects.




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  84. Raoul says:

    I wonder how JJ would feel if he was stopped for looking Irish.




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  85. DrDaveT says:

    @wr: this

    Two women of Mexican heritage speaking Spanish in a convenience store late at night, in an area where people of Mexican descent are uncommon, is a textbook case of reasonable suspicion.

    Only if you’re a racist xenophobe, James. Really.

    You do realize that there is no legal requirement to speak only English, right. Or even to ever speak English. Have you internalized that? Have you acknowledged, consciously and with good will, that it is perfectly possible to be an American without ever speaking English?

    If not, you have some serious thinking to do.




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  86. James Joyner says:

    @DrDaveT:

    You do realize that there is no legal requirement to speak only English, right. Or even to ever speak English. Have you internalized that? Have you acknowledged, consciously and with good will, that it is perfectly possible to be an American without ever speaking English?

    Of course. The whole point of the post is that there’s an inherent tension between our basic civil liberties and our system for enforcing immigration law. A 100-mile limited rights zone for Border Patrol officers means that people who “look Mexican” or speak Spanish are second-class citizens.




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  87. al Ameda says:

    Probably half of America is going all in on ‘stupid’ on the issue of illegal immigration. But you know, this kind of stuff is never far from the surface.

    An Aside: A few years back, in the 1980s, there was strong White resentment in Monterey Park ( in the Los Angeles area) ostensibly set off by a wave of Chinese immigration that transformed the city into a predominantly Chinese middle class city. With it came Chinese owned businesses, where signs were often in Mandarin, and many people in those business establishments were found to be speaking – spoiler alert – Chinese.

    Not surprisingly, many cities in the area started to establish English-language requirements for commercial signs, and so forth. And of course, a then White-majority of the city council attempted get English declared the official language of the city and they also sponsored ordinances that would require all signs to use only English. There were subsequent recall efforts.




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