San Diego’s Border Patrol chief says his agents don’t use race or ethnicity as the basis for their immigration enforcement – but he also won’t say what his agents do look for to determine whether someone is involved in criminal activity.
Even if Border Patrol agents are profiling people based on race, they might not be breaking the law. The U.S. Border Patrol is one of the few agencies that’s legally allowed to use race as a reason to stop drivers or question people on the street, so long as agents see indications of criminal activity or immigration violations.
When then-attorney General Eric Holder rolled out new guidelines in 2014  restricting law enforcement agencies from considering race or ethnicity when enforcing federal law, the administration exempted several agencies, including Border Patrol, from the new rules. If imposed, the agency successfully argued at the time, the rules would prevent agents from effectively doing their jobs.
Still, San Diego Border Patrol Chief Richard Barlow told Voice of San Diego in an interview, this isn’t how his agents operate.
“We are looking for articulable facts that link folks to smuggling activities or criminal activities, in the simplest terms. That’s the main focus – what that person is doing that raises the level of suspicion, along with a whole bunch of other factors,” Barlow said.
He declined to give examples of the signs agents look for, because to do so would divulge law enforcement techniques that may jeopardize the agency’s mission, he said.
That lack of clarity concerns the ACLU and others who worry people’s civil liberties are constantly at risk.
“The longer Border Patrol can avoid articulating with any precision how they operate, the longer people’s constitutional rights are at risk of being violated. Because if they can’t articulate the limits of their authority they can effectively do whatever they want,” said Mitra Ebadolahi, Border Litigation Project staff attorney for the ACLU of San Diego and Imperial Counties.
The agency’s reach nationwide extends 100 miles from all U.S. borders , including the coastline. That includes roughly 200 million people, or two-thirds of country’s population.
A chief concern for civil liberty advocates  is the lack of clarity on the limits to Border Patrol’s authority within its boundaries, where they already have extra-constitutional  powers to enforce immigration law.
Within 100 miles of the border, for example, Border Patrol can set up immigration checkpoints, where agents can question a vehicle’s occupants about their citizenship and place of birth. They can and ask to see proof of immigration status, how legal status was obtained and make quick observations of what is in vehicle.
“The extent of the questioning would depend on the level of suspicion that the agent has during the inspection,” said San Diego Border Patrol spokesman Mark Endicott.
Endicott said citizen concerns over racial profiling could be more common at ports of entry, but over the years people have often leveled charges of discrimination at the agents staffing checkpoints, many of them recording their interactions with agents  and refusing to answer their questions.
Hiram Soto, communications director for Alliance San Diego, which advocates for immigrant rights and greater transparency for Border Patrol, said the reality for many people in immigrant communities is that racial profiling is simply a part of life in San Diego.
“Racial profiling is a reality. It happens all the time. Especially in border communities like ours, which is highly militarized. It’s not even a secret,” he said.
In addition to checkpoints, agents also operate roving patrols, in which agents can patrol neighborhood where “illegal immigrants can quickly fade into the general population,” according to a factsheet from U.S. Customs and Border Protection , Border Patrol’s parent agency.
Agents can stop drivers on interstates and roadways if they “have reasonable suspicion” that an immigration violation or crime has been committed. But exactly what constitutes “reasonable suspicion” isn’t clear.
In 2015, the ACLU of San Diego sued Customs and Border Patrol to obtain records detailing the agency’s roving patrols throughout the region. Border Patrol’s San Diego sector extends far beyond San Diego County, stretching from the U.S.-Mexico border all the way north to Oregon.
ACLU attorneys provided Voice of San Diego the records of 21 enforcement actions  conducted in Southern California between January 2011 and July 2014. The documents show that agents conducting roving patrols stopped and detained people for sometimes ambiguous or murky reasons.
Some of the justifications agents documented include: speeding or slowing abruptly, drivers not looking at agents who pulled up alongside their car, sitting rigidly upright in their seats, acting nervously in the presence of Border Patrol agents or simply driving toward Los Angeles.
In a case from 2014, agents were conducting a roving patrol near Indio when they observed the driver of a Toyota Corolla slow significantly as he approached their car. Out of 10 cars, the Toyota was the only to exhibit “a significant change in driving behavior,” according to the report.
As agents pulled their car next to his, they noted the driver “assumed a rigid posture” and would not look in the agents’ direction. When agents ran the car’s license plate, they saw it had been registered in Los Angeles. It was enough to apparently give agents reasonable suspicion that a crime had been committed, and they pulled the car over.
In the agents’ training and experience, the driver’s “behavior, destination and vehicle condition were consistent with persons who are illegally present in the United States,” the report reads.
Agents detained the driver, a Guatemalan national, and took him to the Indio Border Patrol Station.
It’s not just motorists who are targeted. Documents show two nearly identical instances, first in 2010 and again in 2011, in which agents were conducting a roving patrol near Corona when they spotted “several people congregating near several buildings.”
In both cases, agents noted, some people fled as agents approached them in their marked Border Patrol vehicles, which gave reason to believe the individuals had violated immigration law.
“Upon approach of the vehicles, many of these persons turned away from the agents and began running. These observable actions by the subjects are frequent of groups of illegal aliens when startled by Border Patrol presence. As per all of the agents’ experience, this act of fleeing is frequent of illegal aliens attempting to avoid detection and apprehension by U.S. Border Patrol,” both reports state.
Other reports include little to no apparent justification for the stops. In 2011, agents near Long Beach approached a man who was simply walking down the street. When agents asked him about his citizenship, he admitted he was a citizen of Mexico, in the U.S. illegally, according to documents. He was promptly arrested and voluntarily returned to Mexico.
Barlow said his agents are highly trained to spot key signs and articulate their justifications on paper.
“If it’s at the immediate border area, there are certain key things that agents are going to key on to make those stops – if there’s suspicious activity, in simplest terms, linked to smuggling. There are specific things that (agents are) trained to look for – and I won’t get into any of that without giving away some of the trade craft,” said Barlow. “They’re trained to be able to articulate on paper the justification for those vehicle stops.”
It’s difficult to quantify the extent to which race or ethnicity plays a role in traffic stops, in part because the agency does not record the demographic information of drivers unless there is a formal arrest or use-of-force incident, according to the ACLU. That means we simply don’t know how many U.S. citizens are being stopped and questioned, because the agency doesn’t record those.
“It’s not just that Border Patrol seems unable or unwilling to articulate the reasons they stop or question people – it’s that this agency seems to think anything can be a legit reason. So not only is the Border Patrol unwilling to tell members of the public what we need to know to assess whether the agency is acting legally – in addition, the agency’s position seems to be ‘whatever we decide to do is fine’ – which is a real threat to community safety, accountability and transparency,” Ebadolahi said.