Border Advocates Say Racial Profiling Rules Fall Short

By Jude Joffe-Block
December 09, 2014

Jude Joffe-Block
The border fence seen near Nogales, Ariz.

PHOENIX - Civil rights advocates on the border say new federal guidance restricting racial profiling doesn’t go far enough. The rules released Monday by the U.S. Department of Justice include exceptions for border enforcement.

The guidance lays out stricter policies for federal law enforcement when it comes to considering race, ethnicity, gender, national origin, sexual orientation or gender identity. It expands upon guidance released in 2003 by the Bush administration.

But a footnote in the new version reads, “this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.”

James Lyall of the ACLU of Arizona's Tucson office said that means U.S. Customs and Border Protection is essentially exempted from the guidance.

“To empower that agency to engage in racial profiling - or any agency to engage in racial profiling - is a real mistake,” Lyall said. “This seems like a real missed opportunity for  the Department of Justice to clarify the law and to square federal law enforcement practices with our laws and values.”

Lyall also said the border vicinity could be defined as 100 miles from the border.

The 2003 guidance also had exceptions for border and national security enforcement.

In a statement, the grassroots group Southern Border Communities Coalition said the border exception “sends a clear and disturbing message to border communities and people of color that profiling continues to be acceptable by some law enforcement agencies in certain parts of the country.”

The new guidance says the law enforcement activities that are excluded, “must be conducted consistent with the Constitution and applicable Federal law and policy, in a manner that respects privacy,civil rights and civil liberties, and subject to appropriate oversight.”

But the law on this subject is complex, and even varies within the country.

A 1975 U.S. Supreme Court ruling allows border agents to consider “Mexican appearance” when making an immigration stop, as long as it is not the only reason for making the stop.

However in 2000, the Ninth Circuit Court of Appeals -- which covers western states --  ruled that because of changing demographics, Latino appearance should not be used as a factor in making an immigration stop in areas with large Latino populations.

Yahoo News reported on Tuesday that U.S. Attorney General Eric Holder wanted the new guidance to include border enforcement activities, but the Department of Homeland Security would not agree.