A Dangerous Precedent: Why Allow Racial Profiling at or Near the Border?

At a moment when the federal government is taking racial profiling seriously, it was gratifying to read that Attorney General Eric Holder "told colleagues that he believed that border agents did not need to consider race or ethnicity." Racial profiling is demeaning, offensive to American values, and ineffective. As today's revised Department of Justice (DOJ) guidance makes clear, "it is patently unacceptable...for law enforcement officers to act on the belief that possession of a listed characteristic [like race, religion, national origin, or ethnicity] signals a higher risk."

Then came the shock that the attorney general's views didn't win out: Customs and Border Protection (CBP) and the Transportation Security Administration (TSA) have exemptions to use racial profiling in "screening and inspection for border and transportation security" and "U.S. Border Patrol interdiction activities in the vicinity of the border and ICE Homeland Security Investigation (HSI) interdiction activities at ports of entry."

Yes: The same administration rightly trumpeting progress in the DOJ guidance is at the same time giving a green light for TSA and CBP to racially profile at and near our borders – a vast zone because CBP claims authority up to 100 miles in from any border.

CBP has a horrible track record of discriminatory enforcement against people of color. The ACLU of Washington settled a lawsuit last year where one of the plaintiffs, Ernest Grimes, was an African-American correctional officer (and part-time police officer) who had the misfortune of crossing paths with a Border Patrol agent. The encounter is telling and representative of the abuse felt at U.S. borders: A Border Patrol agent stopped Grimes' vehicle, approached with his hand on his weapon, and interrogated him about immigration status while the correctional officer was in uniform. The New York Civil Liberties Union has documented racial profiling by CBP on buses and trains. A racial profiling lawsuit in Ohio revealed a Border Patrol supervisor's "racial slurs to refer to Latino workers."

A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling, before summarizing the situation around the Northern border: "Why don't they do it to the white people, to see if they're from Canada or something?" he said. "If they did that to the white people, there'd really be an uproar."

At the Southwest border racial profiling is sadly routine. CBP refuses to release data that would allow the public to assess this profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. Their findings based on more than 100 hours of observation over two months are that a Latino-occupied vehicle is more than 26 times more likely to be required to show identification than a white-occupied vehicle. And Latino-occupied vehicles were nearly 20 times more likely to be ordered to secondary inspection.

Some within the Department of Homeland Security (DHS) want to racially profile at or 100 miles "near" the border because, as an anonymous immigration enforcement official says, "There's a very specific clientele that we look for." That's code for Latinos and all people of color who look to DHS like they don't "belong." DHS and President Obama are making an enormous mistake by failing to ban racial profiling fully: The damage to community trust will worsen regardless of efforts to convince minorities that DHS only racially profiles a little bit.

However much racial profiling will continue to happen – and the accumulated evidence against DHS's border police says that it will – every person of color encountering an officer or agent will doubt whether today's official policy allowing biased policing was used against them. DHS and the White House today missed an opportunity to set the administration completely apart from the Sheriff Joe Arpaios of our borderlands.

This fight is far from over: President Obama and DHS Secretary Jeh Johnson must explain why they weren't ready to join Attorney General Holder in forbidding every federal agency's racial profiling and move quickly to cover all TSA and CBP practices.

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