A Double Standard on Racial Profiling

Come Nov. 1, the Department of Justice will once again spar with Gov. Jan Brewer of Arizona over her state's controversial immigration-enforcement law, SB 1070 -- this time before the 9th Circuit Court of Appeals. A three-judge panel is set to decide whether to lift a lower court's block on key parts of SB 1070, including a requirement that police officers check the immigration status of anyone they have "reasonable suspicion" is here unlawfully. Critics, who say the provision could lead to racial profiling, have applauded the federal government for stepping in to defend civil liberties and asserting its constitutional authority to regulate immigration.

This show of authority, however, vanishes when it comes to addressing abuses that occur under the feds' existing partnership with local police. The 287(g) program, named after a section of law passed in 1996, currently deputizes local law-enforcement agencies to enforce federal immigration law, including more than 1,100 officers in 26 states. While the program provides training to avoid racial profiling, in practice poor federal oversight has led to just the types of racially targeted interrogations and arrests immigrant-rights advocates fear SB 1070 will encourage.

Stories like Angel Castro's are common. In March, Castro rode his bicycle past a police cruiser at a red light in Cobb County, Georgia, and was pulled over for "failure to yield to traffic." The officers noted in their arrest report that they had stopped Castro after observing his race, and their questions focused on his immigration status instead of the alleged traffic infraction. Castro said he gave his name, age, and birthday, but the officers refused to let him go. In the course of his arrest, he suffered a fractured left eye socket and broken nose.

Castro was charged with two counts of obstructing an officer and spent four months at the Cobb County jail waiting to prove his innocence. In August, the Southern Poverty Law Center (SPLC) took on his case, which a judge dismissed after the arresting officers ignored subpoenas to testify. But despite the questionable circumstances surrounding his arrest and detention, Castro still faces deportation because deputies at the jail are enrolled in 287(g) and reported his immigration status to Immigration and Customs Enforcement (ICE).

"The federal government likes to say, 'We aren't profiling in any way with 287(g). How could we? All we're doing is processing people presented to us in the jail,'" says Sam Brooke, an SPLC attorney representing Castro. "That's fine, but you're ignoring what happens on the street level. They saw Castro's race and ethnicity; they suspected they could try to get him into the immigration system if the opportunity presented itself."

The ACLU has documented 10 similar cases in Cobb County alone, but civil-rights activists say the majority of abuses go unreported. "You're dealing with a population who is afraid to come forward for obvious reasons, if they haven't been deported already," says Azadeh Shahshahani, director of the Georgia American Civil Liberties Union and co-author of its October 2009 report, Terror and Isolation in Cobb: How Unchecked Police Power under 287(g) Has Torn Families Apart and Threatened Public Safety.

Indeed, even internal reviews of 287(g) have found the program is fraught with problems. In March, the Department of Homeland Security's Office of Inspector General found that ICE, which administers the program, had failed to "address concerns regarding arrests of individuals for minor offenses being used as a guise to initiate removal proceedings." It also noted that ICE "did not retain information regarding allegations and investigations of 287(g) personnel" or other police officers who engaged in questionable conduct. To date, the agency has no system for monitoring whether immigrants who are reported under 287(g) are ultimately convicted of the original crime for which they were stopped. This makes it impossible for the agency to document and address the problem of racially targeted arrests.

Even when advocacy organizations step in to pick up the slack and file complaints, they're met with a pass-the-buck approach from federal authorities. Complaints about 287(g) are supposed to be directed to DHS' Office of Civil Rights and Civil Liberties (CRCL). But in Castro's case, a complaint wasn't even filed because, says Castro's lawyer, Brooke, DHS washes its hands of the problem if the arresting officers are not themselves enrolled in the program. "DHS has made clear to our organization in the past that they will not investigate a situation when officers are not directly under 287(g)," Brooke says.

In July, DHS explicitly refused to handle SPLC's complaint about an immigrant in Charlotte-Mecklenburg, North Carolina, who was arrested for reporting a city police officer who fondled his girlfriend during a traffic stop. The man was taken to the county jail where he was identified as undocumented, and he now faces deportation even though his charges were dropped and the arresting officer was fired. "Although DHS delegated certain immigration authority to the Mecklenburg County Sheriff's Office ... there is no delegation to the Charlotte Police Department," DHS said in a reply to SPLC's complaint. "In short, the conduct of the Charlotte police officer on patrol is outside the scope of the CRCL''s review authority," it responded.

The only other recourse is the Department of Justice's Civil Rights Division, but so far, it has launched just two investigations of law-enforcement agencies enrolled in 287(g). One in Alamance County, North Carolina, concerns "allegations of discriminatory policing and unconstitutional search and seizure." The other is in Arizona's Maricopa County, home to Sheriff Joe Arpaio and the hard-to-ignore "crime suppression sweeps" that have helped his office account for a quarter of all immigrants deported through 287(g). In short, there is as little redress as there is oversight.

Meanwhile, the Justice Department continues to pursue its lawsuit to block Arizona's SB 1070, which supporters like Amnesty International have welcomed as a "signal that the U.S. will not run roughshod over immigrant rights simply because someone is brown or in the wrong place at the wrong time." The signal, though, is meaningless if the federal government lets local law-enforcement agencies enrolled in 287(g) get away with racial profiling while enforcing federal immigration law.