Justice Derailed: What Raids on New York’s Trains and Buses Reveal about Border Patrol’s...

8/3/2019 Justice Derailed: What Raids on New Yorks Trains and Buses Reveal about Border Patrols Interior Enforcement Pra

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JUSTICE

DERAILED

NYU SCHOOL OF LAW

IMMIGRANT RIGHTS CLINIC

What Raids on New Yorks

Trains and Buses Reveal

about Border Patrols Interior

Enforcement Practices

NOVEMBER 2011


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JUSTICE DERAILED

What Raids on New Yorks Trains and Buses Reveal

about Border Patrols Interior Enorcement Practices

NOVEMBER 2011

NYU SCHOOL OF LAWIMMIGRANT RIGHTS CLINIC


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JUSTICE DERAILED:

What Raids On New Yorks Trains And Buses Reveal About Border PatrolsInterior Enorcement Practices

November 2011

The New York Civil Liberties Union125 Broad Street, 19th FloorNew York, NY 10004www.nyclu.org

ACKNOWLEDGMENTS

This report was written by the NYU School o Law Immigrant Rights Clinic, the New York CivilLiberties Union and Families or Freedom.

Contributors rom the NYU Immigrant Rights Clinic include Ada Aon, Benjamin Locke andAlba Villa, students supervised by Nancy Morawetz, andpro bono assistance o Sambo Dul.

Contributors rom the New York Civil Liberties Union include Udi Oer, Michael Cummings,Sara LaPlante and Andrea Callan.

This report was designed by Willa Tracosas.

This report draws on data gathered by the NYU Immigrant Rights Clinic over the course othree years o proceedings under the Freedom o Inormation Act (FOIA). The students who

have contributed to the FOIA proceedings are Ada Aon, Anthony Enriquez, Maribel Hernan-dez, Carly Leinheiser, Benjamin Locke, Julie Mao, Jeanette Markle, Anna Schoenelder andAlba Villa.The authors would like to thank the many people who shared their experiences about thepractices o Border Patrol in upstate New York.


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ABOUT THE NEW YORK CIVIL LIBERTIES UNIONThe New York Civil Liberties Union (NYCLU) is one o the nations oremost deenders o civil lib-erties and civil rights. Founded in 1951 as the New York aliate o the American Civil LibertiesUnion, we are a not-or-prot, nonpartisan organization with eight oces and nearly 50,000members across the state. The mission o the NYCLU is to deend and promote the unda-mental principles and values embodied in the Bill o Rights, the U.S. Constitution, and the NewYork Constitution, including reedom o speech and religion, and the right to privacy, equalityand due process o law or all New Yorkers. For more inormation, please visit www.nyclu.org.

ABOUT FAMILIES FOR FREEDOMFamilies or Freedom is a New York-based multi-ethnic deense network by and or immi-grants acing deportation. Founded in September 2002, Families or Freedom is a member-ship-based organization with approximately 100 members, made up o immigrants who are inor have been in immigration removal proceedings, their amilies and loved ones, and individu-als at risk o deportation. Families or Freedoms mission is to educate and organize amiliesand communities aected by deportation. It uses community education and mobilization, legaladvocacy, and media work to orge collective campaigns and build support and awareness othe issues acing immigrant communities.

ABOUT THE IMMIGRANT RIGHTS CLINIC AT NEW YORK UNIVERSITY SCHOOL OF LAWThe Immigrant Rights Clinic at New York University School o Law is a leading institution inboth local and national struggles or immigrant rights. Its students engage in direct legalrepresentation o immigrants and community organizations in litigation at the agency, ederalcourt, and where necessary Supreme Court level, and in immigrant rights campaigns at thelocal, state, and national level.

NYU SCHOOL OF LAWIMMIGRANT RIGHTS CLINIC
http://www.nyclu.org/http://www.nyclu.org/


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CONTENTS

Executive Summary ................................................................................ 1

Introduction ............................................................................................ 4

I. Overview: Rochester Station and Transportation Raids ........................ 5

II. What the Evidence Reveals .................................................................. 8

A. Despite CBPs mission o policing the border, transportation raids do not

target recent border crossers ..............................................................................8

B. Transportation raid arrests represent a large share o the Border Patrols

Rochester Station arrests ..................................................................................11C. Agents consistently violate established procedural protections in the course

o transportation raids ....................................................................................... 12

D. A staggering proportion o transportation raid arrestees are detained ....... 13

E. Transportation raids lead to the arrests mostly o Latin Americans, men

and individuals with a medium or black complexion ...................................... 16

III. Discussion .........................................................................................18

A. The prevalence o transportation raids is likely attributable to pressure to

increase northern border arrest rates ............................................................... 18

B. Transportation raids raise serious constitutional concerns ......................... 20

IV. Border Patrol Practices Beyond Trains and Buses .............................22

V. Conclusion and Recommendations .....................................................25

VI. Appendix ...........................................................................................28

End Notes ..............................................................................................33


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JUSTICE DERAILED | 1

EXECUTIVE SUMMARY

This report is the rst-ever in-depth examination o the Border Patrols transportation raidsin upstate New York. It paints a disturbing picture o an agency resorting to aggressive polic-ing tactics in order to increase arrest rates, without regard or the costs and consequences oits practices on New Yorkers rights and reedoms. The report extends beyond transportationraids to other Border Patrol practices as well, raising serious concerns about an agency thatappears to be driven by the belie that the regular rules o the Constitution do not apply to it.

American democracy was ounded on the idea that people possess certain inalienable rights,among them the right to privacy and the right to move reely about the country. Throughoutthis nations history, Americans have never been required to carry identication papers prov-ing their citizenship. Show me your papers is a statement posed to people living under op-pressive regimes, not those residing in the worlds oldest democracy.

Anyone who has traveled on trains and buses through upstate New York in recent years hascause to question the ederal governments ealty to these core democratic values. Through-out central and western New York, armed Border Patrol agents routinely board trains andbuses nowhere near the border to question passengers about their citizenship. They orcecertain people to produce documents proving their citizenship or immigration status. Pas-sengers who cannot produce documentation to an agents satisaction are subjected to arrest,detention and potential deportation.

These transportation raids occur many miles rom the Canadian border or any point o entryinto the United States. They do little to protect the border, but they threaten constitutional

protections that apply to citizens and immigrants alike, invite racial proling, tear apart ami-lies and burden taxpayers with the cost o detaining individuals who were arrested while in-nocently going about their business.

The transportation raids also serve as a window into the practices o an agency that, althoughcharged with policing the border, abuses its authority through its unprecedented reach intothe interior o the United States and the use o aggressive search and seizure procedures thatdo not comport with standards and expectations or domestic policing or interior immigra-tion enorcement. While the ull extent o the Border Patrols interior enorcement practicesremains unknown, community groups have documented abuses o power that extend beyondthe transportation system and into our states towns and villages. These concerns include

complaints o Border Patrol agents wrongully stopping, questioning and arresting individu-als, including United States citizens, and engaging in improper enorcement practices in closecollaboration with state and local police.

This report is the rst in-depth examination o transportation raids by Border Patrol agentsin upstate New York, particularly in the Rochester Station within the Border Patrols Bualosector. Through a Freedom o Inormation Act request, which is still being litigated, the au-


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thors o this report obtained a complete dataset o all transportation arrests in Rochester Sta-tion rom 2006 to 2009 and detailed inormation on a random sample o 200 o those arrests.Analysis o the documents obtained through the FOIA litigation and other publicly availabledocuments conrm that Rochester Stations interior transportation raids represent a shitrom the Border Patrols mission o policing the border. Furthermore, the evidence suggests

an established pattern o misconduct by Border Patrol agents in the course o transportationraids. Key preliminary ndings rom this data include the ollowing:

Despite the Border Patrols mission o policing the border, transportation raids do nottarget recent border-crossers. From 2006 to 2009, less than 1 percent o transporta-tion raid arrests were made at entry, and only 1 percent were made within 72 hours oentry. In contrast, 76 percent o those arrested on transportation raids in Rochesterhad been in the United States or more than a year, and 12 percent o these individualshad been present or more than 10 years.

Interior transportation raid arrests represent the majority o the Rochester Stations

arrests despite the act that they occur ar rom any point-o-entry into the UnitedStates. Although the agency long sought to block release1 o precise yearly data, wenow know that transportation arrests constituted almost two-thirds o all arrests inRochester between 2007 and 2009.

Agents widely violate established arrest procedures in the course o transportationraids. In 77 percent o all transportation raid arrests between 2006 and 2009, Roch-ester Station ocers violated the two-ocer rule, which requires that someone otherthan the arresting ocer, whose judgment may be clouded by numerous actors, ex-amine the person who was arrested and determine whether to commence removalproceedings or exercise prosecutorial discretion. In addition to violating the agencysown regulations, such violations implicate signicant due process rights and FourthAmendment requirements.

Despite the immense human and nancial costs o overzealous detention, data culledrom the sample o Rochester transportation raid arrests reveal that more than 73percent o individuals arrested were then placed in a detention acility rather thanreleased while awaiting the adjudication o their case. The data urther indicates thatwere it not or a lack o bed space, agents would have detained an even higher percent-age o transportation raid arrestees.


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The report concludes with a set o recommendations to address the problems outlined in it:

CBP should end its practice o raids on domestic trains and buses.

To the extent that CBP continues to engage in interior enorcement operations, it

should ensure that it does so only in situations involving specic suspicion o unlaw-ul activity, with proper constitutional and procedural protections in place.

CBP should discontinue any use o arrest-based perormance measures.

CBP should re-evaluate its policy o nearly universal detention o individuals.

State and local police should rerain rom enorcing ederal immigration laws, includ-ing by engaging in interior enorcement operations with Border Patrol agents andrequesting translation assistance rom Border Patrol.

The governor and attorney general o New York should monitor CBPs interior opera-tions to ensure that the rights o New York residents are protected.

Congress and DHS should improve oversight and accountability with respect to trans-portation raids.

In sum, transportation raids by Rochester Station agents demonstrate unduly punitive andoverzealous policing in an operational realm securely outside o the Border Patrols border-policing mission. Through an analysis o previously unreleased data, this report sheds light onthe Border Patrols show me your papers, please approach to immigration enorcement andserves as an impetus or more transparency and closer scrutiny o CBP practices. The reportalso serves as a warning sign or the need to examine Border Patrol practices beyond busesand trains, and particularly practices that raise concerns regarding Fourth Amendment viola-tions and racial proling. The report calls on the CBP to conorm its practices to democraticprinciples and legal and regulatory standards, and to curb its incursion into the countrysinterior.


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INTRODUCTION

For several years armed Border Patrol agents have routinely boarded domestic trains andbuses in New York, including those operated by Amtrak and Greyhound, to question passen-gers about their citizenship, and arrest and detain people, including individuals lawully pres-ent in the United States, who are not carrying proo o their lawul status. They board trainsand buses without reasonable suspicion o unlawul activity.

In the Rochester area alone, Border Patrol agents arrested 2,788 train and bus passengersrom October 2005 through September 2009. These arrests happened miles rom the border,which transects Lake Ontario, or the nearest point o entry. The vast majority o individualsarrested had lived in the United States or more than a year.

This show me your papers practice has no place in the United States, where residents have

long cherished the right to privacy and the reedom to travel reely about the country withouthaving to prove their citizenship to government agents. Indeed, such tactics are more com-monly associated with police states than robust democracies.

This report is the rst-ever in-depth examination o the Border Patrols transportation raidsin upstate New York. It analyzes data, obtained through Freedom o Inormation Act (FOIA)requests, rom the Border Patrols Rochester Station and Bualo sector to shed light on thepractice and impact o transportation raids. The data paints a disturbing picture o an agencyresorting to mission creep in order to increase arrest rates, without regard or the costs andconsequences o its practices, including to its own mission to protect the border.

While the data obtained through the FOIA litigation and through public observations o BorderPatrol activities provide a detailed account o the agencys practices on trains and buses inNew York, the concerns raised regarding these practices do not end at our states transporta-tion systems. They extend to other Border Patrol tactics that raise similar concerns about anagency driven by the belie that the regular rules o the Constitution do not apply to it.

Section I o the report provides an overview o the Border Patrols transportation raid strategyand the emerging public alarm over such raids. Section II presents and analyzes the new evi-dence regarding the actual practice and impact o transportation raids. Section III discusseshow transportation raids are likely the result o pressure to increase arrest rates, and howtransportation raids raise signicant constitutional concerns. Section IV examines the con-

cerns raised about Customs and Border Protection (CBP) practices beyond the transportationcontext, including complaints regarding Border Patrol agents wrongully stopping and arrest-ing individuals, including United States citizens, and engaging in enorcement practices inclose collaboration with state and local police, harming police-community relations. The ullextent o these operations is unknown, raising the need or a more thorough examination oBorder Patrol practices outside o the transportation context. Section V concludes with policyrecommendations aimed at reining in the mission-creep and abuses that result rom the Bor-der Patrols interior enorcement practices.


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I. OVERVIEW: ROCHESTER STATION AND TRANSPORTATION RAIDS

The Homeland Security Act o 20022 divided the Immigration and Naturalization Service (INS)into three components within a newly created Department o Homeland Security (DHS). Im-migration and Customs Enorcement (ICE) is responsible or interior enorcement o immigra-tion laws and U.S. Citizenship and Immigration Services (USCIS) administers the immigrationservice unctions o the ederal government. Meanwhile, Customs and Border Protection ismeant to handle border security unctions and assume responsibility or managing, control-ling and screening the nations borders at and between the ports o entry.3

Within CBP, the U.S. Border Patrol is tasked with detecting and preventing the illegal entryo persons and contraband across the border between the ports o entry.4 The Border Patrolasserts that its priority mission is to prevent terrorists and terrorist weapons, including weap-ons o mass destruction, rom entering the United States. Additionally, the Border Patrol has amission o preventing undocumented immigrants, smugglers, narcotics and other contrabandrom crossing the border between the ports o entry. The Border Patrol had a budget o $3.5billion in scal year 2009 to establish and maintain operational control o the U.S. border.5

In upstate New York, the Border Patrol has deployed a particularly aggressive presence arrom the border with Canada. This is especially the case in Rochester, a city located relativelyar rom the nearest border crossings. The Rochester Station, within the Border Patrols Bu-alo sector,6 was opened in 2004 as a maritime patrol station coinciding with the launch o aerry service between Rochester and Toronto, Canada.7 The station was intended to policecross-border entry into the United States via the erry. By January 2006, however, the erryservice foundered and closed permanently.8 Although the Border Patrol ocers no longer

had a point-o-entry to police, the Rochester Station remained open and, in act, continued toincrease its stang, rom seven agents in May 2008 to 27 agents by January 2011.9

Around the time the erry permanently closed, reports started to emerge indicating that theBorder Patrols Rochester Station was stepping up the use o transportation raids.10 Numer-ous newspaper articles and reports document the Border Patrols practices and indicate thattransportation raids in the Bualo sector account or the bulk o CBP arrests near the north-ern border.11 Area residents report that Border Patrol ocers maintain a nearly constant pres-ence at Rochesters bus and train stations. Rochester Station alone is reported to have hadmore arrests than any o the other 55 stations along the northern border.12 In the Roches-ter area, Border Patrol agents arrested 2,788 train and bus passengers rom October 2005

through September 2009.13

Between 2007 and 2009 transportation arrests constituted nearlytwo-thirds o the arrests made by the Rochester Station.

The Border Patrols incursion into the interior is raising serious concerns, particularly in com-munities most directly aected by these practices.14 Local university ocials in charge ointernational student programs have observed that oreign students are increasingly beingstopped and questioned by Border Patrol agents while travelling locally and domestically.


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Transportation raids have become enough o an issue that in the past ew years, universitieslocated near the Canadian border have issued travel advisories to their international students,recommending that they now carry proo o their right to be in the United States wheneverthey travel, no matter how ar they intend to travel or regardless o whether they will cross aborder.15

For a broad category o students, scholars, visitors and other non-citizens, however, evenhaving ones papers in hand provides no guarantee against being wrongully arrested and de-tained during a transportation raid. In numerous incidents, individuals have been wrongully

arrested and detained by Border Patrol agents on trains and buses. Some o these individualswere in the midst o the lengthy but routine process o changing their immigration status andhad complied with all the rules.16 Others were arrested and detained because Border Patrolagents reused to heed ederal regulations that state that while a persons visa may have ex-pired, their permission to remain in the country may still be valid.17 In one case, an individualwhose application or a visa extension had already been granted by United States Citizenship

The transportation raids present a very real danger to international students at upstateuniversities. Numerous students have been removed rom buses and trains and detained bythe Border Patrol even though they were legal residents. Consider these three cases recentlyreported in The Chronicle of Higher Education:

A University o Rochester undergraduate rom Pakistan was riding an AdirondackTrailways bus to Albany. Border Patrol agents boarded the bus and questioned himabout his citizenship status. The student did not have his immigration paperwork withhim, believing that his student ID was sucient or the brie trip within the state. Theagents arrested the student. Ater being detained or two weeks, he appeared beore a

judge and proved that he was lawully in the United States with an asylum applicationpending.

A University o Rochester doctoral student was traveling to an academic conerenceat Cornell University when Border Patrol agents boarded his bus. The student wasdetained or hours at a police station even though his documentation conrmed thathe was in the country legally. Apparently, the agent didnt understand the studentspaperwork. The student missed the conerence.

A student at the State University o New York at Potsdams Crane School o Music wasremoved rom an Adirondack Trailways bus because he lacked sucient documenta-tion. The student, who was rom China, was held or a ew hours and released. A ewdays later, agents visited the college and arrested the student. He was held or threeweeks at a detention acility several hours rom campus until his legal status wasconrmed. The detention disrupted his education and he had to leave school.


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and Immigration Services (USCIS) was nonetheless arrested and detained or several daysbecause Border Patrol agents declined to conrm the status o his case.18

Another requently expressed concern is that Border Patrol agents appear to single out pas-sengers on the basis o race and probe passengers o color more careully than other pas-

sengers during questioning.19 Passengers o color who have told Border Patrol agents thatthey are United States citizens have been asked to prove their citizenship.20 In other instances,agents simply assume that passengers o color are not citizens and start their questioning byasking What country are you a citizen o? or demanding that passengers produce [their]documents, although citizens o the United States are not required to carry proo o citizen-ship.21 Border Patrol agents, or example, told a Syracuse University proessor o color, who isa citizen and has been repeatedly questioned on Greyhound, that he has to carry his papersat all times and that his Syracuse identication card was not sucient.22

Despite mounting public concern, CBPs testimony to Congress on northern border securitymakes no mention o its expansion into the interior and CBPs website and publications pro-

vide little explanation o the motivations or or actual costs and impact o this practice.

Latino citizens ace a consistent pattern o harassment by CBP

Silvio Torres-Saillant couldnt board a Greyhound bus in 2007 without armed Border Patrolagents conronting him.

Torres-Saillant, an English proessor at Syracuse University and a United States citizen, wassingled out by agents on numerous occasions that year.

One incident occurred in the spring as Torres-Saillant was waiting to board a bus to NewYork City at the Regional Transportation Center in Syracuse. A Border Patrol agent askedhim to produce his documents. Torres-Saillant, who is Latino, handed the agent hisSyracuse University ID card. The agent became angry when the college proessor didntshow him additional identication.

Since I was traveling on ground transportation within the same state, I did not see the needto carry documents that established my legal status in this country, Torres-Saillant said.

Clearly assuming that Torres-Saillant was not a citizen, the agent told him that he hadto carry his papers at all times. When he saw Torres-Saillant reach into his wallet or

additional documentation, the agent walked away and started questioning others. All butone o the individuals who Torres-Saillant saw being questioned that day was a person ocolor.

Angered by the Border Patrols dehumanizing treatment o Latino passengers, Torres-Saillant has stopped riding Greyhound buses.


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II. WHAT THE EVIDENCE REVEALS

Through a Freedom o Inormation Act request, which is still being litigated,23 the authors othis report obtained a complete dataset o all transportation arrests in Rochester Station rom2006 to 2009 and detailed inormation on a random sample o 200 o those arrests. Analysis othese records along with other publicly available documents conrm that Rochester Stationstransportation raids represent a marked shit rom the Border Patrols actual mission o polic-ing the border. Furthermore, the evidence suggests an established pattern o misconduct byBorder Patrol agents in the course o transportation raids.

A. Despite CBPs mission o policing the border, transportation raidsdo not target recent border crossers.

CBPs public statements suggest that transportation raids target those who have recentlycrossed the border in connection with suspected terrorism and smuggling operations.24 In-deed, in a written statement to news reporters, CBP headquarters asserted that transporta-tion raids are perormed in direct support o immediate border-enorcement eorts and as ameans o preventing smuggling organizations rom exploiting existing transportation hubs totravel to the interior o the United States.25

The data shows that transportation raids, in act, are not related to policing the actual border.Only a small percentage o individuals arrested by Border Patrol agents on trains and busesin Rochester were recent border crossers:

From 2006 to 2009, the vast majority o those arrested76 percent (2,092 out o 2,743total arrests)had been in the country or more than one year. Over this our-yearperiod, this gure never dropped below 74 percent and peaked at 81 percent in 2007.


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Among those who had been in the country or more than a year prior to being arrested

on a transportation raid, 71 percent had been in the United States or more than threeyears. Specically, 32 percent o these individuals had lived in the United States orthree to six years, 32 percent had lived here or between six to 10 years and 15 percenthad lived here or more than 10 years.

Rochester Station Transportation Raid Arrests (20062009)By Time Between Entry and Apprehension*

*These percentages also refect 14 individuals whose records did not include the timebetween their entry and apprehension.


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Less than 1 percent o those arrested had entered the United States within the last 72hours. Only seven individuals (out o 2,743 total arrests) were apprehended at entryand 15 were arrested within 72 hours o entry. The proportion o individuals arrestedwho were recent border crossers remained constantly low over the our years report-

ed, hovering around 1 percent.

Length o Time in the U. S. o Individuals Arrested Over One Year Ater Entry(2006-2009)

*Data includes only individuals whose date o entry was provided.


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Individuals arrested between three and 30 days o entry comprised about 5 percent ototal arrests rom 2006 to 2009, while individuals arrested between one month and ayear o entry comprised slightly more than 17 percent o total arrests. The distributiono individuals arrested in this middle range also remained airly steady across the ouryears reported.

These numbers cast serious doubt on whether CBPs transportation raids do anything to actu-ally protect the border.

B. Transportation raid arrests represent a large share o theBorder Patrols Rochester Station arrests.

Ater the closure o the erry between Rochester and Toronto, Canada, Rochester Station Bor-der Patrol agents began stepping up the use o transportation raids. Despite the act that

they occur ar rom any point-o-entry into the United States, transportation raid arrests havecome to play an outsize role in the Border Patrols northern border activity.

Ater two-and-a-hal years o rst denying that it kept statistics and then seeking to preventtheir disclosure, CBP was required by District Court Judge Scheindlin to reveal hard data onthe share o CBP arrests occurring on trains and buses. The data is staggering. It shows thattransportation arrests constitute almost two-thirds o all arrests in Rochester between 2007and 2009.

Rochester Station Transportation Raid Arrests By Time BetweenEntry and Apprehension

* These totals/percentages also refect 14 individuals whose records did not include the time betweentheir entry and apprehension.


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From 2006 to 2007, Rochester Station transportation raid arrests more than doubled,rom 383 arrests to 776 arrests. Transportation raid arrests peaked in 2008 at 986 ar-rests. There were 647 arrests in 2009. Transportation arrests continued to make upmore than 60 percent o arrests in Rochester in the years or which data is available.

The transportation raids rom Rochester Station alone account or a signicant portiono total Bualo sector arrests29 percent rom 2006 to 2009. The percentage o totalBualo sector arrests represented by Rochester Station transportation raid arrestspeaked at 35 percent in 2008.

Transportation raid arrests in Rochester similarly bolstered total reported northern

border arrests, making up 12.4 percent o northern border arrests in 2008 and 10 per-cent on average rom 2006 through 2009.

C. Agents consistently violate established procedural protections in thecourse o transportation raids.

The evidence demonstrates that, in addition to making unjustied, warrantless arrests, CBPails to observe minimal procedural saeguards during transportation raids. For any warrant-less immigration arrest, ederal regulations impose a procedural saeguardthe two-ocerrulewhich is analogous to protections in the criminal eld. The two-ocer rule requiresthat someone other than the arresting ocer, whose judgment may be clouded by numerousactorssuch as the excitement o the arrest, their interest in moving orward with the case,and pressure to increase arrest statisticsexamine the person who was arrested and deter-mine whether to commence removal proceedings or exercise prosecutorial discretion.26 Theonly exception to this two-ocer rule applies to situations when no other qualied oceris available and waiting or another ocer would lead to an unnecessary delay.27 Analogously,in the criminal law context, the U.S. Supreme Court has held that the Fourth Amendment re-

Rochester Bufalo Sector Northern Border

Transportation Total Percent Total Arrests Total Arrests

Arrests Arrests


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quires that a neutral magistrate review a warrantless arrest and make a determination thatprobable cause exists in order to detain a person prior to her arrest.28 While the arresting o-cer is allowed to make an on-the-scene determination that probable cause exists to arrest asuspect, once in custody, the suspect is constitutionally entitled to have a neutral magistrateor in the immigration context, a neutral second ocer, review that determination.29

The data reveals systemic non-compliance with arrest procedures as required underthe two-ocer rule. In 77 percent (2150/2792) o all reported transportation raid arrests,Rochester Stations agents violated the two-ocer rule. In 2006, ocers violated therule nearly 88 percent (336/383) o the time. The rate o violations fuctuated year-by-year between 2006 and 2009, but never dropped below 70 percent o all arrests annually.

Violations o the two-ocer rule may constitute Fourth Amendment violations and, in somecases, may be grounds or suppression o evidence gathered as a result o the arrest andtermination o removal proceedings.30 Additional data is required to evaluate ocer compli-ance with arrest procedures on the whole, but systemic violation o the two-ocer rule raisesserious constitutional concerns and indicates a strong need or a closer examination o CBPseld practices.

D. A staggering proportion o transportation raid arrestees are detained.

Prior to 2006, under the policy known as catch and release, undocumented migrants ap-prehended along the border were released into the United States on their own recognizance ithey were nationals o countries other than Mexico.31 In response to criticism that ew recentborder crossers actually returned or their immigration hearings,32 on August 23, 2006, then-Secretary o Homeland Security Michael Cherto announced an end to the practice.33 Chertohailed this policy change as a breakthrough in deterring illegal immigration and a corner-


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stone o immigration enorcement eorts.34 On February 28, 2007, Cherto reported the ol-lowing results to the Senate Judiciary Committee: In July 2005, we were releasing up to 80percent o non-Mexican illegal aliens because we did not have the bed space to hold them. Aso August 2006, all removable aliens caught at the border are detained until returned to theirhome countries.35 This result required a signicant expansion o detention capacity, as catch

and release was in part motivated by the lack o available bed space to house all illegal bor-der crossers along the southern border.

Consistent with, and likely precipitated by this policy change, the data in our sample revealsthat nearly all individuals arrested during transportation raids are detained by CBP withoutbeing screened or risk o fight, threat to the community or other considerations. Ocersrom the Rochester Station detain individuals regardless o whether they are recent entrantsapprehended at the border or have resided in the United States or years.

Seventy-our percent o individuals arrested were detained. Male arrestees are typi-cally detained in the Bualo Federal Detention Center in Batavia, NY, while women are

sent to local prisons and county jails.

The data urther indicates that the actual rate at which CBP agents deemed an in-dividual to merit detention is even higher. Were it not or a lack o bed space, agentswould have detained an even larger percentage o transportation raid arrestees. Thissituation occurred most requently in FY 2006, when 50 percent o all arrestees werereleased on their own recognizance due to a lack o bed space. In subsequent years,the rate at which individuals were released on their own recognizance due to a lacko bed space was ar lower. In FY 2007 this occurred in 4 percent o cases, and no in-stances were reported in FY 2008 and FY 2009.36 When those two groups are joined,the data indicated that the percentage o all arrestees who were detained or who would


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have been detainedi not or a lack o available bed space was 87 percent over all ouryears, 92 percent in FY 2006, 80 percent in FY 2007, 90 percent in FY 2008 and 86 per-cent in FY 2009.

In 70 percent o cases, individuals who were arrested and detained were requiredto post a bond in order to be released while awaiting an immigration hearing. Bondamounts ranged rom $1,500 to $20,000, but in more than 88 percent o cases in whichbond was allowed, those detained were required to post bonds o $5,000 to $10,000(with one individual being required to post a $20,000 bond). In 30 percent o cases inwhich the individual was detained, no bond was allowed.

There was insucient data to determine how many o the individuals arrested anddetained were able to post bond. However, because transportation raids target a popu-lation in transit between points with the United States, it is unlikely that individuals ar-rested are carrying large sums o cash. It may take them considerable time to contactamily members who then must go to a local immigration oce to post bond. It is likelythat many individuals must wait at least several days beore their release, i they areable to post the bond.37

These overzealous detention practices impose immense human and nancial costs. Most othe individuals detained by Rochester Station agentsabout 66 percent o total detained ar-restees or whom detention location was indicatedwere detained in ederal immigration de-tention acilities, most requently in the nearby Bualo Federal Detention Center in Batavia,NY. The remaining 34 percent o individuals detained, or whom detention location was indi-cated, were held at local county jails. The average cost o maintaining an individual in a ed-eral detention acility is approximately $122 a day.38 Taxpayers may pay even higher costs orarrestees housed in county jails because contracts or outsourcing detention are negotiatedon a case-by-case basis.39 In addition to the expense to taxpayers, overzealous detention prac-tices tear apart amilies and uproot communities. When people are unnecessarily detained,children lose parents, amilies lose breadwinners and neighborhoods lose valued residents.


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E. Transportation raids lead to the arrests mostly o Latin Americans,men, and individuals with a medium or black complexion

The records obtained through the FOIA request reveal basic demographic inormation aboutthe individuals arrested in the Rochester Station. The records do not reveal who was subject toadditional intrusive questioning or pulled o a train but not placed in removal proceedings, butthey conrm anecdotal reports that arresting ocers ocus on Latin Americans and personso color in their enorcement operations.

The arrests included individuals rom 130 nations, but 73 percent o arrestees camerom Latin America, 11 percent rom Asia, and 9 percent rom sub-Saharan Arica andOceania. Canadians represented only 0.4 percent o those arrested.

CBP grouped the arrestees according to 10 complexion categories. O the 2,776 ar-rests that captured skin complexion, the vast majority were categorized as having amedium or black complexion.


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The vast majority o arrestees were male.


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III. DISCUSSION

A. The prevalence o transportation raids is likely attributable

to pressure to increase northern border arrest rates.

The prevalence o transportation raids by Border Patrol agents is likely attributable to thesharp spike in unding and personnel or the northern border in the atermath o the Sept. 11terrorist attacks and the accompanying pressure to increase arrest rates in order to justiyprior and uture budget increases.

Ater the Sept. 11 attacks, the ederal government announced an increased emphasis on pre-venting the entry o terrorists and weapons o mass destruction.40 At the end o scal year2004, the rst ull year that the DHS existed as an agency, about 10,500 agents patrolled theU.S. land borders. This number increased to more than 20,000 agents by the end o scal year

2010.41

CBP reported to the Government Accountability Oce that $3.6 billion was appropri-ated or border security eorts between the ports o entry in 2010, and as a result, the BorderPatrol is more heavily staed now than at any time in its 86-year history.42

The Sept. 11 attacks also raised concerns that terrorists may attempt to inltrate the UnitedStates along the expansive and sparsely-guarded northern border.43 Congress heard testimo-ny about northern border operations and CBP came under sharp pressure rom lawmakers tostep up operations along the northern border.44 The USA PATRIOT Act (Patriot Act) speci-cally mandated tripling the number o Border Patrol agents and increasing the monitoringtechnology along the northern border.45 In 2004, Congress passed additional legislation to in-crease stang along the northern border, aiming to station 20 percent o new recruits there.46

The Border Patrol subsequently tripled the number o northern border agents, rom 340 inscal year 2001 to 1,008 in scal year 2005.47 The escalation in the number o northern borderagents continued well ater the Patriot Acts mandate was met: O the 20,558 active BorderPatrol agents in scal year 2010, 2,263 (11 percent) patrolled the northern border.48

From 2001 to 2005, however, northern border apprehensions declined rom 12,338 to 7,343.Bualo sector apprehensions dropped rom 1,434 to 400 in the same time period.49 Attemptingto explain the drop, DHS ocials maintained that their increased deployments had a deterrenteect on potential border crossers.50 However, a 2006 report by the Transactional RecordsAccess Clearinghouse (TRAC) at Syracuse University doubted this claim, questioning whetherenough Border Patrol agents could be deployed at any one time along the massive border to

be a deterrent.51 CBP was under intense pressure to return quantiable resultsincreasedapprehensions.

In 2003, the Bualo sector signaled the importance o arrest statistics by requiring its ocersto report apprehension rates on a daily basis.52 This emphasis at a local level is not surprising(even though CBP long denied that it kept any statistics o arrests by the Rochester Station andonce it admitted to such statistics sought to prevent their release to the public). Apprehension


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rates have long been used as a measure o the Border Patrols perormance.53 In a recent re-port to enable Congress and the public to assess the perormance o the agency as it relatesto CBPs mission, CBP reerences apprehension rates among its Fiscal Year Highlights,Border Enorcement Successes, and the reportable perormance measures to support itsstrategic plan.54 Apprehension rates even actor into the agencys own sel-auditing ormula,

as CBP compares actual apprehension rates with the targets set out in its strategic plan.55

Statements rom Border Patrol agents urther suggest that the Border Patrol has internalizeda philosophy that more arrests indicate better perormance. A detention ocer at Federal De-tention Center in Batavia reportedly told a transportation raid arrestee that CBP had been ar-resting people simply to meet quotas.56 A ormer Border Patrol agent in Caliornia, Tony Plat-tel, told reporters that constant demands to meet monthly arrest quotas led agents to cruisestreets, bus stops, and even medical clinics looking or undocumented immigrants. The quotawas eight apprehensions per day, and i agents did not meet that goal, they were pressured toarrest more individuals the next day or ace having their shits changed. According to Plattel,he was red or interering with the quota systemhe drove six dehydrated undocumented

immigrants back to Border Patrol headquarters despite orders to wait until he arrested morepeople to ll his van.57

Against this backdrop, it becomes clearer why CBP is devoting disproportionate resourcesand personnel to transportation raids: to boost arrest numbers. In act, Border Patrol agentsin upstate New York are known to reer to transportation raids as immigration Dumpster-diving and acknowledge that those arrested have not crossed the border recently.58

As the data shows, Rochester Station transportation raid arrests have increased signicantlysince 2006 and constitute an appreciably larger part o total northern border arrests than theydid several years ago. Nationwide, the proportion o total northern border arrests representedby transportation raid arrests increased 60 percent rom 2006 to 2009.

Despite the disproportionate eort devoted to transportation raids, CBPs reporting to Con-gress makes no mention o its raids on domestic trains and buses. It does not distinguish ar-rests made during these raids rom arrests o people attempting to illegally enter the country.The agencys 2010 report to Congress provides extensive description and analysis o CBPsoperations, but says nothing about interior enorcement in general, or transportation raidsin particular. This omission is perplexing since interior arrests account or such a high per-centage o total CBP arrests. The disconnect between CBPs mission to police the borderand its expansion o interior operations strongly suggests that pressure to increase arrestsis distorting the agencys priorities. 59 Equally disturbing is the agencys unwillingnessuntilcompelled by months o litigationto produce documents that evidence this distortion.60

Consider two cases, which clearly demonstrate that CBPs interior arrests have little connec-tion to border security and are intended to merely infate arrest rates:

In 2006, a man who was stopped and questioned by a Border Patrol agent at the Grey-hound bus station in Rochester conded to the agent that he was the ather o a three-


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month-old baby, a U.S. citizen who was in poor health and had recently undergoneseveral surgeries. Upon being arrested, the man expressed his concern that his wieand their ill baby were also traveling through Rochester, were unamiliar with the areaand would be unsure how to proceed without him i he were detained. The agents ar-rested and detained the man regardless, and subsequently arrested the mans wie,

and their sick child, upon arrival at the station. The mother and ather, neither recentborder crossers, were placed into removal proceedings.61

In 2010, a doctor rom South Asia who was lawully in the United States was travel-ling by bus rom the mid-west to New York City or interviews with residency pro-grams. Border Patrol agents boarded his bus at the Greyhound station in Rochesterand questioned and arrested him. The doctor had arrived in the U.S. on a valid visa.He had timely applied or an extension o his visa, which had been granted the daybeore his arrest. Ater being removed rom the bus, the doctor was taken to an ocewhere he tried to show his immigration receipt showing that he was lawully in theUnited States. The agents werent interested. In act, they didnt even bother to check

his status. The doctor was then taken to the ederal detention center in Batavia. Hewas released three days later and dropped o at the Greyhound bus station withouthis luggage or his passport. With the help o volunteer legal assistance, the doctor re-trieved his belongings. The removal proceedings against him were terminated, but hewas deeply traumatized by the experience, which completely disrupted his plans andnegatively aected his residency interviews.62

B. Transportation raids raise serious constitutional concerns.

In 1928, Supreme Court Justice Louis D. Brandeis wrote that the right to be let alone is themost comprehensive o rights and the right most valued by civilized men.63 Supreme CourtJustice William O. Douglas expanded on that point when he declared in 1952 that such a rightis indeed the beginning o all reedom.64 Americans agree, and expect to be able to travelreely in the United States without having their right to be let alone violated by armed BorderPatrol agents.

In deending its stop, question, search, and arrest practices on domestic trains and buses,CBP cites to its statutory authority to operate within a reasonable distance o the border,65 andederal regulations that dene reasonable distance as being within 100 miles o the border.66(In New York State, approximately 97 percent o the population lives within 100 miles o the

border).

67

However, in setting these regulations, Congress did not say that all searches within100 miles o the border were reasonable.68 This 100-mile zone is not a Constitution-ree zone.While at the border, its unctional equivalent, or permanent border checkpoints Border Patrolagents are authorized to conduct routine searches without probable cause or a warrant,69elsewhere Border Patrol agents are held to a higher constitutional standard.70

When CBP boards domestic trains and buses, the agency is not operating at the border orits unctional equivalent,71 but rather as a roving patrol.72 Roving border patrols are governed


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by the same Fourth Amendment standards as stop, question, search and arrest activities byregular police ocers.73 The U.S. Supreme Court has rejected arguments made by BorderPatrol in the past that when it operates within 100 miles o the border, the regular rules o theFourth Amendment do not apply.74

Under current practice in upstate New York, Border Patrol agents board trains and buses dur-ing scheduled stops to ask passengers about their immigration status, as well as or proo otheir citizenship or lawul status in the United States. In these situations, CBP argues, theydo not need to have reasonable suspicion about an individual rider to ask a question becausethe encounter is consensual, and riders are ree to ignore or not respond to the questioning.75

Indeed, nearly 95 percent o sample arrest records examined by the authors contained boil-erplate language stating that the arresting ocer had initiated consensual, nonintrusivecontact or engaged in a consensual conversation with the arrestee.76

What Border Patrol ails to recognize is that when an armed agent questions passengers on atrain or bus, sometimes in the middle o the night with a fashlight glaring at the riders ace,

ew individuals would eel that they have the right to reuse to answer the agents questions.These encounters, which CBP describes as consensual in order to circumvent constitutionalprotections, all too oten eel more like coerced consents as the setting or the questioningwould make ew passengers believe that they have the ability to reuse to answer questions.Indeed, passengers and community leaders have echoed this sentiment that the Border Pa-trol agents questioning is coercive in nature and reusing to answer is not a realistic option.77

Moreover, there is the underlying question o whether Border Patrol ocers should be en-gaged in enorcement actions on domestic trains and buses in the rst place. Do we want tolive in a country where armed ocers approach Americans engaged in no wrongdoing and askthem to produce papers to prove that they are indeed Americans? Since New York City allsentirely within 100 miles o the border, should armed Border Patrol agents ride the subwayasking passengers questions about their citizenship and detaining individuals who cannotprove their status? Customs and Border Protection claims this authority, yet most Americanswould nd it objectionable.


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IV. BORDER PATROL PRACTICES BEYOND TRAINS AND BUSES

The data obtained through the FOIA litigation and through public observations o Border Pa-trol activities provide a detailed account o the agencys practices on trains and buses in NewYork. Yet concerns regarding Border Patrols practices extend into our states towns, villages,arms, streets and highways. Moreover, serious concerns have been raised about state andlocal police engaging in interior immigration enorcement operations along with border patrolagents:

In 2009, a United States citizen who was born in Mexico was stopped in his car by Bor-der Patrol agents who demanded to see his drivers license. He produced his New Yorklicense, but the Border Patrol agents reused to believe that it was real, accusing himo being in the United States illegally. He responded that he was a naturalized citizen,but the Border Patrol agents did not believe him and asked him to get out o his car.

They then proceeded to handcu him. His amily members, who were also in the car,pleaded or Border Patrol agents not to arrest him and said that they could oer prooo his citizenship. The Border Patrol agents ignored their pleas and took the man to theBorder Patrol station, where he was ngerprinted and photographed. Finally his wiearrived with a copy o his US passport and naturalization certicate. He was releasedwithout charges.78

In 2010, Peter Mares, a U.S. citizen o Mexican descent, was providing translationservices during a trac stop by the Sodus Police Department o a Spanish-speakingindividual. Peter provided the translation services as a courtesy. The Sodus Police De-partment called Border Patrol or assistance, and upon arrival, Border Patrol agents

began to interrogate Peter and asked him to produce identication. Shocked by theact that he was being treated as a suspect by Border Patrol, and knowing that as aUnited States citizen he was not required to carry identication, Peter asked why aUnited States citizen needed to show ID? In response, the Border Patrol agent becameagitated and handcued Peter. Border Patrol agents then interrogated Peter about hiscitizenship. Throughout the entire interrogation Peter was in handcus. Ater approxi-mately 45 minutes, Peter was released without charges.79

In 2008, Border Patrol agents arrested a man ater he was stopped or speeding whilerushing to deliver his wies breast milk to their very ill and premature newborn childat a hospital in Syracuse. The man had entered the country on a valid visa. His wie was

a physician with a visa to serve in areas with a shortage o doctors. As a condition oher visa, the mans wie had to return to work shortly ater giving birth. The man regu-larly transported his wies breast milk rom her workplace to their baby in the hospi-tal. When he was arrested, the man was awaiting the adjudication o his extension ostatus application. He was detained or three days and only released ater a membero Congress intervened.80


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Community residents have also complained about Border Patrol agents stationed out-side o churches and stores that cater to Latino populations in their region.

Photo credit John Ghertner

In October 2011 in Sodus, our arm workers were approached by a state trooper whilethey were sitting on the ront steps o one o their homes. The men were drinking beerater returning home rom work. The state trooper walked up to the men and told themthat they could not drink outside. One o the workers asked the trooper why he couldntdrink a beer on his own property? At that point, a Border Patrol agent emerged romthe state trooper vehicle and asked each o the men Are you legal here? The agentordered them to produce their immigration documents. The men produced the rel-evant documents, and the trooper and the Border Patrol agent let.81

In 2011, state troopers and Border Patrol agents began patrolling a trailer park out-side o Sodus, where many arm workers lived. The state troopers and Border Patrolagents drive together rom street to street in the park. According to one resident, Wecover up our windows and we dont dare to go outside unless we have to.82


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Photo credit John Ghertner.

The reports about Border Patrol activities in towns and villages in upstate New York raiseconcerns o Border Patrol agents arresting individuals, including United States citizens, with-out probable cause, and subjecting residents to selective enorcement based on their race orethnicity. The Supreme Court has repeatedly stated that the normal rules o the Constitutionapply to the internal enorcement activities o Border Patrol agents. Upstate New York is nota Constitution ree-zone, and the ederal government must ensure that CBP practices within

100 miles o the border comport with undamental constitutional and statutory protections.


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V. CONCLUSION AND RECOMMENDATIONS

The inormation analyzed in this report raises serious concerns regarding the true motiva-tions or, and consequences o, the Border Patrols interior enorcement practices. Customsand Border Protection ocials assert that the stopping, questioning and arresting o individu-als within the interior o the United States directly support their border protection mission.The evidence reveals, however, that in addition to taking place ar rom the border, theseoperations do not target recent border crossers. In addition, the evidence raises serious con-stitutional concerns and shows widespread violations o undamental procedural protectionsin the execution o arrests.

The stark contrast between CBPs mission o policing the border and its expanding interioroperations strongly suggests that CBPs priorities are being distorted by pressure to increasearrest rates. The evidence set orth in this report suggests a serious problem and a disturbing

national trend, but the publics ability to ully gauge the problem is limited by CBPs reusal todisclose all relevant records or allow interviews o CBP employees. Litigation to obtain accessto additional records is ongoing. The authors o this report hope to provide an updated analysisonce those records are obtained.

The policy recommendations below would address the problems outlined in this report. Theserecommendations are guided by a belie that CBPs programs should support and advance itsmission o border protection, that border enorcement should conorm with constitutional re-quirements and ederal statutes and regulations, and that CBP should servenot harmthecommunities where it operates.

CBP should end its practice o raids on domestic trains and buses.

As the evidence in this report demonstrates, transportation raids do not lead to the appre-hension o recent border crossers. Transportation raids are an inecient use o the ederalgovernments limited resources and do little, i anything, to urther CBPs mission o borderprotection. In addition, transportation raids raise the specter o a police state in the commu-nities in which they are implemented and result in signicant privacy intrusions or citizensand non-citizens alike. These actors, combined with the evidence o procedural violations andconcerns regarding racial proling in the course o transportation raids, counsels against thecontinued use o transportation raids by Border Patrol agents.

To the extent that CBP continues to engage in interior enorcement operations,it should ensure that it does so only in situations involving specifc suspicion o

unlawul activity, and that proper constitutional and procedural protections are inplace.

In light o the concerns this report and other public accounts raise about Border Patrol opera-tions, to the extent that CBP continues these practices, it should ensure that such activities


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take place only in situations involving specic suspicion o unlawul activity, and that properguidelines and protections be put in place and ollowed by Border Patrol agents.

Clear guidance should be issued to Border Patrol agents that the objective o interior opera-tions is to support the agencys border protection mission and prevent the unauthorized entry

o dangerous persons and contraband. Thus, agents should not arbitrarily stop, question orarrest individuals without reasonable suspicion or probable cause that the individual has en-tered the United States illegally. Furthermore, violations o procedural protections such asthe two-ocer rule and the consent requirement should be adequately investigated and ad-dressed.

While CBP has reused to release its training materials on racial and ethnic proling, accountso its operations raise serious concerns that Border Patrol agents resort to racial and ethnicproling techniques to determine who to stop, question or arrest. Such accounts indicate thateven i CBP policy expressly orbids racial and ethnic proling, additional guidance and train-ing o Border Patrol ocers is necessary to ensure appropriate compliance.

CBP should discontinue the use o arrest-based perormance measures.

As evidenced by CBPs own publications, arrest rates have long been used as a measure o theagencys perormance. Despite the act that counsel or CBP insisted that the agency does notmeasure arrest rates,83 it was later revealed in the course o litigation that, in act, it trackedarrest statistics on a daily basis. Not surprisingly, reliance on such measures creates adverseincentives to increase arrest numbers by any means. CBP should make clear that BorderPatrol stations and agents receive no additional perormance credit or arrests o individu-als who are not recent border crossers and that its resources are ocused on urthering theagencys expressed mission o preventing the unauthorized entry o dangerous persons andcontraband.

State and local police should rerain rom enorcing ederal immigration laws, in-cluding by engaging in interior enorcement operations with Border Patrol agentsand requesting translation assistance rom Border Patrol

Public saety depends on community members working cooperatively with law enorcementocials to ght crime. To truly have sae communities,police ocials and New York residentsmust work together. Yet when state and local law enorcement ocers act, in eect, like im-migration enorcement agents by closely collaborating with Border Patrol agents engagedin interior enorcement operations, immigrant communities become earul that any kind ointeraction with the police will put themselves and their amily members at risk or detentionand deportation. Millions o immigrant New Yorkers, including hundreds o thousands o un-documented immigrants, will rerain rom contacting the police when they have been a victimo a crime, or when they have witnessed a crime. I community members dont trust law en-orcement enough to alert them o crime occurring in their community, then law enorcementocers are not able to adequately police our communities and maintain saety. Thereore,state and local police should rerain rom enorcing ederal immigration laws, including by


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engaging in interior enorcement operations with Border Patrol agents and requesting trans-lation assistance rom Border Patrol.

CBP should re-evaluate its policy o nearly universal detention o individuals ar-rested.

CBPs policy o detaining the vast majority o individuals arrested in the course o transporta-tion raids imposes immense human and nancial costs. In addition to the cost to taxpayerso detaining people, CBPs overzealous detention policy imposes a signicant hardship on theindividuals detained and their amily members and community ties in the United States. CBPshould assess an individuals risk o fight, danger to the community, and other policy and hu-manitarian considerations beore detaining an individual, and should only detain individualswhen there is serious risk o fight or danger to the community.

The governor and attorney general o New York should monitor CBPs interior op-

erations to ensure that the rights o New York residents are protected.

The cumulative impact o CBPs interior enorcement operations is elt not only by thoseindividuals arrested but by all citizens and non-citizens who live in the areas where theseoperations take place. For example, observers in Rochester have noted that Border Patroloperations have diminished the citys long-standing reputation as a welcoming place or in-ternational students, scholars and visitors. The recent growth in the Border Patrols stops andarrests in public areas and at domestic transportation stations in New York creates a tangiblechilling eect or the states residents and state authorities should take action to ensure thatCBPs incursion into interior communities does not violate New Yorkers rights.

Congress and DHS should improve oversight and accountability with respect totransportation raids.

The data on transportation raid arrests at Rochester Station provides strong evidence o per-vasive problems with CBPs interior operations in upstate New York, and news reports andindividual accounts rom other parts o the country are strongly suggestive o a national trend.Due to incomplete access to relevant records and decision-makers, the publics ability to ullyassess the scope o the problems presented by CBPs operations is severely limited. Basedupon the evidence set orth in this report, Congress or the DHS Oce o the Inspector Generalshould undertake a broader investigation o CBPs practices and ensure that adequate correc-tive measures are implemented.


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VI. APPENDIX

The data analyzed in this report was acquired in connection with a Freedom o Inormation Act(FOIA) request led by New York Universitys Immigrant Rights Clinic on behal o Families orFreedom and three individuals who had been arrested by CBP on trains and buses. Litigationover this matter remains ongoing in Families for Freedom v. Customs and Border Protection, 10Civ. 2705 (SAS) beore Judge Shira Scheindlin in the Southern District o New York. The FOIArequest sought data to provide the public with a clearer understanding o the rising incidenceo Border Patrol stops and arrests on domestic trains and buses in upstate New York, includ-ing (1) arrest records (with elds that refect complexion, country o citizenship, length o timein the country, and criminal history), (2) expectations, quotas or arrest goals, and (3) otherinormation concerning how transportation raids are perormed.

Through this litigation, CBP agreed to generate and deliver (1) an Excel spreadsheet contain-

ing data regarding all 2,792 Rochester Station transportation raid arrests rom 2006 to 2009(CBP Spreadsheet), and (2) a random sample o 200 redacted I-213 records drawn romthe total transportation raid arrests rom 2006 to 2009 (Sample Set Data). CBP was alsorequired, through the Courts many orders, to produce statistics, memoranda and other docu-ments related to transportation arrests.

A. Description o the Data

1. Spreadsheet Data on All Rochester Station Transportation Raid Arrests(2006 2009)

The CBP Spreadsheet contained inormation on each o 2,792 Rochester Station transporta-tion raid arrests reported or the years 2006 to 2009. This total consists o 383 arrests in 2006,776 arrests in 2007, 986 arrests in 2008, and 647 arrests in 2009. CBP extracted 15 categorieso data rom the I-213 arrest records or all transportation raid arrests in Rochester Station,and produced this data in the CBP Spreadsheet. The categories provided were:

1. Place o entry, estimated date o entry and nearest municipality to enter2. Arrest date and time3. Citizenship4. Period o time in the United States

5. Complexion6. Gender7. Occupation8. Method o arrest9. Arresting Ocer10. ArsAgt2 (other agents present)11. ArsAgt3 (other agents present)


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12. Preparing Ocer o the Form I-21313. Status at entry14. Status when ound15. Place o arrest

2. Full I-213 Arrest Records or a Sample Set o 200 Arrests

Full I-213 arrest orms were produced or a random sample set o 200 out o the 2,792 arrests,representing 50 arrests randomly selected rom each o the our years reported. The Clinicagreed to generate a random sample that would indentiy 200 I-213 orms to be delivered bycounsel or CBP. To assist in generating the random sample, we enlisted the help o John R.B. Palmer, an attorney and Ph.D. candidate in Population and Public Policy at Princeton Uni-versitys Woodrow Wilson School o Public and International Aairs. Mr. Palmer generated arandom sample using a Mersenne-Twister algorithm in the program R. Each arrest was as-signed a numerical identier and 50 identiers were drawn without replacement rom eacho the our years o data respectively. Ater the random sample was generated, CBP producedthe corresponding Form I-213 arrest records.

In addition to various elds in which BP ocers lled in specic categories o inormation, theForm I-213s contain a narrative portion in which BP ocers described the circumstances othe arrest, the ocers encounter with the individual arrested, and the subsequent dispositiono the case.

The I-213s and corresponding narratives were reviewed or relevant data, which we then re-corded in an Excel spreadsheet. Data categories included:

1. The date o arrest and reported date o entry to the United States2. Whether the individual entered the United States by crossing a land border, and wheth-

er the individual specically crossed the U.S. Canada border3. Whether the individual entered the United States as a minor4. Whether minors were present at the arrest5. Ocers use o boilerplate language to indicate consent6. Whether the individual was detained7. I released, the reasoning given or the individuals release8. I detained, the amount o bond set and the location o detention9. Whether the individual was issued a Notice to Appear, or was removed immediately as

a bag and baggage case10. Whether the individual expressed a ear o return to their native country11. Whether the individual reused to answer questions, or remained silent throughout

questioning12. Whether the individual indicated potential eligibility or relie or the existence o a

pending application or lawul status


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This inormation was tallied and used as a source o additional statistical data. In additioncertain narratives were used as qualitative examples o BP ocer conduct during arrests.

B. Methods o Analysis

The majority o the statistics presented in this report come rom analysis o the CBP Spread-sheet. Some statistics presented, however, particularly those pertaining to detention rates,come rom analysis o the Sample Set Arrest Records, because the CBP Spreadsheet providesless detail than the actual arrest records, which include a narrative o the arrest provided bythe arresting ocer. In addition to helping us generate the random sample o 200 arrestsdescribed above, John Palmer assisted in overall analysis o the data provided by the govern-ment. This section briefy describes how we obtained the statistics presented in this report.

1. Time in U.S. Prior to ArrestMr. Palmer determined the time elapsed between entry and arrest using two dierent meth-ods, each o which utilized distinct categories o data rom the CBP spreadsheet on all trans-portation raid arrests. Thus, the results produced by one category o data could be veried bythe results produced by the alternate category o data.

The rst category o data consisted o estimates o time elapsed between entry and arrest,which is a separate eld in the I-213 and which CBP provided in a separate column in the CBPspreadsheet. For each arrest, the Spreadsheet indicates whether the arrestee was arrested atentry, within 72 hours o entry, our to 30 days ater entry, one month to one year ater entry,

or more than one year ater entry. To use these data, we had to exclude 49 o the 2,792 arrestsdue to missing values.

The second category o data consisted o the actual dates o entry and arrest, which are sepa-rate elds in the Spreadsheet and which Mr. Palmer used to make an independent calcula-tion o time elapsed between entry and arrest. To use these data, we had to exclude 313 othe 2,792 arrests due to missing values. We categorized these results using the same time-categories as with the rst estimates, such as within 72 hours ater entry and over oneyear ater entry, etc. We made two modications to these categories, however: Instead othe category 4-30 days, we used the category 3-30 days so that there would not be a gapbetween this category and the 72 hour category. We also merged the at entry and within 72

hours categories such that we counted anyone arrested at entry or up to 72 hours rom entryas within 72 hours.

Both analyses produced nearly identical results. Small dierences in the results o the twoanalyses were due to missing date-o-entry values in the spreadsheet which required ex-clusion o 313 arrests rom the second method o analysis, thus making the results o therst method slightly more accurate. Thereore, or the purposes o the discussion o the timeelapsed between entry and arrest or less than one year, and to determine the proportion o


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those arrested over one year ater entry, this report reers to the numerical results o the rstanalysis. However, the time-elapsed option entered by CBP groups together all individualswho were arrested over one year ater entry, without indicating specically how many yearshad elapsed between entry and arrest. Thus, we relied on the second method o analysis toexamine, or those arrested over one year ater entry, how many were arrested one to three

years, three to six years, six to 10 years, and more than 10 years ater entry.

2. Violations o Two-Ocer Rule

In order to determine the requency o violations o the two-ocer rule, we analyzed the in-cidence o arrests in which the arresting ocer is the same as the ocer that interviews thearrestee and prepares the I-213. To do this, we used inormation drawn rom the spreadsheetdata in order to identiy instances in which the arresting ocer is the same as the prepar-ing ocer, that is, the ocer who conducts the interview. For each o the 2,792 arrests, thespreadsheet data provided by the government lists the arresting ocer(s) and the prepar-ing ocer in separate columns. To preserve the anonymity o the ocers, the SpreadsheetData does not contain their names. Instead, the government assigned each ocer a number,such as Ocer 1, or Ocer 15. Based on this coding by the government, where the samenumerical identier is listed both as an arresting ocer and a preparing ocer or a singlearrest, we have assumed that the arresting ocer and the preparing ocer were the sameperson.

In order to perorm this analysis across all 2,792 entries in the I-213 data, we rst created anew variable which took the value 1 in cases where the preparing ocer was also listed asone o the arresting ocers, and 0 otherwise. We then calculated the proportion o arrestsor which this new variable took the value 1 to determine the incidence o violation o the two-ocer rule.

3. Rates o Detention and Bond Amounts

Inormation regarding the rates at which CBP detained individuals arrested during transpor-tation raids were determined by culling data rom the narrative portions o the sample set o200 I-213 arrest records. Each narrative stated whether an individual was detained or releasedater the arrest. I the individual was released, the narrative indicated whether the release wasbased on a lack o bed space or another reason, such as humanitarian considerations. I the

individual was detained, the narrative indicated whether the individual was allowed bond and,i allowed bond, at what amount bond was set. To arrive at the statistics presented in thisreport, we entered this data into an Excel spreadsheet and tallied the number o individualsreleased versus detained, the number o individuals released or lack o bed space, and inor-mation relating to bond.


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4. Boilerplate Language Regarding Consent

The narrative portions o the sample set o I-213 arrest records also contained the BP o-cers description o circumstances surrounding the initiation o questioning. To determinethe requency o boilerplate language regarding consent, we tallied the instances in which thenarrative stated that the ocer initiated consensual or non-intrusive conversation, andcalculated the proportion o arrest records that repeated this boilerplate language.

The data and analysis underlying each o the statistics presented in this report are on le withthe authors.


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ENDNOTES

1 In litigation, CBP denied the existence o documents responsive to plaintis request or this data or morethan a year beore nally producing it.

2 Homeland Security Act o 2002, Pub. L. No. 107296, 116 Stat. 2135 (Nov. 25, 2002).

3 Department o Homeland Security, Department Subcomponents and Agencies, http://www.dhs.gov/xabout/structure/ (last visited July 6, 2011).

4 Government Accountability Oce, Report to Congressional Requesters, Border Patrol: Checkpoints Con-tribute to Border Patrols Mission, but More Consistent Data Collection and Performance Measurement Could

Improve Effectiveness 1 (Aug. 2009), available at http://azgovernor.gov/documents/BorderSecurity/Border-PatrolCheckpoints_Report_2009.pd (last visited July 6, 2011) [hereinater GAO Report, Border PatrolCheckpoints, August 2009].

5 Id. at 5.

6 The U.S. border is divided into 20 sectors. The northern border, spanning over 4,000 miles, consists o theBualo sector, as well as the Blaine, Spokane, Havre, Grand Forks, Detroit, Swanton, and Houlton Sec-tors. See U.S. Customs and Border Protection, Oce o Border Patrol Sectors Map, http://www.cbp.gov/linkhandler/cgov/careers/customs_careers/border_careers/bp_agent/sectors_map.ctt/Sectors_Map.pd(last visited July 6, 2011).

7 Nina Bernstein, Border Sweeps in North Reach Miles Into U.S, N.Y. Times, Aug. 29, 2010, available at http://www.nytimes.com/2010/08/30/nyregion/30border.html (last visited June 14, 2011).

8 Michelle York, Rochester Finds It Is Losing a FerryService, N.Y. Times, Jan. 16, 2006, available at http://www.nytimes.com/2006/01/16/nyregion/16erry.html (last visited July 3, 2011).

9 Colin Wodard, Far From Border, U.S. Detains Foreign Students, ChroNiCle of higher eduCaTioN, Jan. 9, 2011,available at http://chronicle.com/article/Far-From-Canada-Agressive/125880 (last visited July 4, 2011).

10 See Darryl McGrath, Strangers on a Train, meTrolaNd, Vol. 29, Issue 30, July 27, 2006, available at http://www.metroland.net/back_issues/vol29_no30/eatures.html (last visited July 4, 2011).

11 See, e.g., Nina Bernstein, Border Sweeps in North Reach Miles Into U.S, N.Y. Times, Aug. 29, 2010, available

at http://www.nytimes.com/2010/08/30/nyregion/30border.html (last visited June 14, 2011); Ken Dilanian& Anna Gorman, A Home They Dont Know, l.a. Times, June 28, 2010; Emily Bazar, Some Travelers Criti-cize Border Patrol Inspection Methods, usa TodaY, Nov. 2, 2009, available at http://www.usatoday.com/news/nation/2008-09-30-border-patrol-inside_N.htm (last visited July 6, 2011); Jennier Lee, A Protest Over Busand Train Citizenship Checks, NY Times (City Room Blog), Apr. 2, 2008, available at http://cityroom.blogs.ny-times.com/2008/04/02/a-protest-over-bus-and-train-citizenship-checks (last visited June 14, 2011). Seealso May 18, 2009 Letter to Pro. Nancy Morawetz rom Ellen A. Dussourd, Director o International Studentand Scholar Services at the University o Bualo (describing several incidents involving the detention or ar-rest o international students by CBP ocials and expressing concerns over CBPs enorcement activities)(on le with authors); Declaration o Patricia Rector, Coordinator o the Upstate New York Detention TaskForce, at 4 (noting that [t]here has been a dramatic increase in the number o transportation checks con-ducted by Border Patrol Agents and the number o persons apprehended in the Syracuse area since 2006.)(on le with authors).

12 Tim Martinez, Newhouse School o Public Communications, Syracuse University, Caught in Transit: The Roch-ester Border Patrol Station, http://cmr.syr.edu/newshouse/video/article.html (last visited June 14, 2011).

13 Nina Bernstein, Border Sweeps in North Reach Miles Into U.S, N.Y. Times, Aug. 29, 2010, available at http://www.nytimes.com/2010/08/30/nyregion/30border.html (last visited June 14, 2011).

14 See, e.g., Lee, supra note 11; Martinez, supra note 12(eaturing a video documenting Rochester Border Pa-trols transportation raids); see also Emily Bazar, Border Patrol Expands Transportation Checks, usa TodaY,Oct. 1, 2008, available at http://www.usatoday.com/news/nation/2008-09-30-border-patrol-checks_N.htm(last visited June 14, 2011); Bazar, supra note 11; Nadja Drost, Border Net Catches Few Terror Suspects, Times


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uNioN, Apr. 19, 2009; John OBrien, Immigrant Group Wants Border Patrol Agents to Stop Detaining Travelers,sYraCuse CiTY News, July 5, 2008, available at http://www.syracuse.com/city/index.ss/2008/06/29-week/ (lastvisited July 6, 2011).

15 See Travel Advisory or International Students, Visiting Scholars and International Employees (April 26,2010), available at http://wings.bualo.edu/intlservices/documents/TravelAdvisory-4-26-10.pd (last visitedJuly 6, 2011); Bazar, supra note 11 (noting that students are being reminded to carry their documentation

with them wherever they go, ater several international students at the University o Rochester were ques-tioned or detained by Border Patrol agents).

16 Wodard, supra note 9.

17 Federal regulations and a publication issued by United States Citizenship and Immigration Services (USCIS)provide that certain non-citizens who le a timely application to extend their stay in the United States areauthorized to continue approved activities, including employment with the same employer, or up to 240days while the extension application is being adjudicated. 8 C.F.R. 274a.12(b)(20); USCIS Customer Guide,available at http://www.uscis.gov/USCIS/Resources/C1en.pd) (last visited July 4, 2011). A ederal courtalso recently ruled that such an authorization necessarily includes the right to remain in the United Statesand to be ree rom arrest and detention absent some other justication. El Badrawi v. U.S., No. 07-CV-1074,2011 WL 1457186, at *11 (D. Conn. Apr. 12, 2011). Similarly, individuals who apply or adjustment o statusto permanent resident, asylum, withholding o removal or cancellation o removal are authorized to applyor employment authorization while their adjustment application is being adjudicated. 8 C.F.R. 274a.12(c)

(8); (10). Pursuant to the reasoning articulated in El Badrawi, such individuals should not be subject to arrestand detention or immigration purposes absent some other justication. See El Badrawi, at *11.

18 August 2011 Letter to Pro. Nancy Morawetz (on le with authors).

19 The authors o this report requested that CBP release training materials relevant to racial proling but CBPhas reused to do so on grounds o attorney-client privilege. Litigation over whether these training materi-als have been wrongully withheld remain on-going.

20 In one instance, or example, a citizen o Asian ancestry traveling on Greyhound was asked or identicationater telling a Border Patrol agent t

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