Todd Spangler

Detroit Free Press

WASHINGTON — A watchdog group is suing U.S. Customs and Border Protection in federal court in Detroit to find out if government agents are racially profiling American citizens and foreigners legally in the U.S. under a law that allows for warrantless searches across Michigan to combat illegal immigration.

Saying that Customs and Border Protection (CBP) has refused to provide detailed stop and detention records, complete apprehension logs and copies of agency policies, the American Civil Liberties Union asked a judge today to order their release, arguing that redacted records the group has already received show 4 out of every 10 people stopped in the agency's Detroit sector from 2012-14 were either citizens or foreigners legally in the U.S.

“We don’t know why Border Patrol is detaining so many United States citizens and so many people who are legally in the United States,” the ACLU told the Free Press. “We don’t know how many of the people Border Patrol stops are people of color. … We don’t know where these stops are occurring.”

A CBP spokesperson declined to comment, saying it was agency policy not to remark on pending lawsuits.

While the ACLU wants to know where the stops are being made in Michigan — under the theory it would presumably make more sense for Border Patrol to be making stops closer to the Canadian border — and why nearly a third of those being stopped would be U.S. citizens, the program itself may come as a surprise to Michiganders, since the rules as applied by CBP allow for warrantless searches just about anywhere in the state.

Under decades-old federal law, CBP can stop and search any vehicle or vessel — including boats, cars or aircraft — without a judge's order while searching for undocumented immigrants as long as they are “within a reasonable distance” from an international border. That "reasonable distance" has been interpreted to mean 100 miles from most international borders but includes the entirety of several states, including Michigan.

It was not immediately clear from the filing how many people were stopped by agents attached to CBP’s Detroit sector — which includes Michigan and part of Ohio — under the warrantless search program, or how the ACLU determined from the heavily redacted records it did receive how many of those stopped were in the U.S. legally.

But the trends outlined in the lawsuit underscored the civil liberties group’s concerns: with less than 2% of foreign citizens being processed having a criminal record, only 5% having entered the U.S. within the preceding month and nearly two-thirds — 63% — having been initially stopped by other agencies, including local law enforcement. That last statistic alone raised questions about how often outside agencies may be detaining people while waiting for Border Patrol to show up to execute warrantless searches.

“They have refused to provide information that the public has a right to see (and) it’s more important than ever to know what this enormous federal agency is doing,” said ACLU lawyer Miriam Aukerman, who argued in the lawsuit that her organization has been trying to get CBP to respond to their requests for records since May 2015 with unsatisfactory success.

The ACLU and three other plaintiffs — the Michigan Immigrant Rights Center and two immigration experts from the University of Arizona — said while little is known about the stops in Michigan and the application of the 100-mile warrantless search zone in much of the rest of the U.S., there is enough information about Border Patrol activities elsewhere to cause concern.

For instance, Border Patrol arrest records for the CBP’s Sandusky Bay station in Ohio found that Latinos made up between 62% and 85% of arrests from 2009-11, while accounting for only 3% of the local population. Meanwhile, less than 1% of those stopped were Canadians, despite the Sandusky Bay station being located on Lake Erie.

In 2013, Families for Freedom, a New York-based human rights organization, issued a report following FOIA litigation that, according to the lawsuit, documented an "incentives program" in Border Patrol that led to the “arrests of hundreds of immigrants with legal status in interior enforcement operations." It said the New York Civil Liberties Union also reported data indicating thousands of Border Patrol stops aboard public transportation, far from any international border, with only 1% resulting in initiation of removal proceedings.

The lawsuit also comes at a time when President-elect Donald Trump during this year’s campaign not only called for additional crackdowns on illegal immigration, but also has embraced police policies, like stop-and-frisk, which was used in New York City in the 1990s and has been widely criticized as targeting people of color. Trump also promised to triple the number of Immigration and Customs Enforcement officers in the nation — a proposal that could cost as much as $10 billion.

The ACLU’s lawsuit noted that the U.S. Border Patrol already has undergone a huge growth, nearly doubling in size in recent decades, with the Detroit sector growing faster than any in the nation, from 38 agents in 2001 to 411 agents in 2015. In the lawsuit, the group said that complaints of Border Patrol abuses have increased as well.

Contact Todd Spangler: 703-854-8947 or at tspangler@freepress.com. Follow him on Twitter at @tsspangler.



