17.

Somebody Speaking Spanish

ANA SUDA AND MARTHA “MIMI” HERNANDEZ WERE CHATTING as they waited in line at the Town Pump convenience store in Havre, Montana, in the late evening of May 16, 2018. Both women were certified nursing assistants at the Northern Montana Care Center. They would often go to the gym together in the evening after their children went to bed and would regularly stop afterward at the store to pick up some groceries.¹

Havre, a small farming town thirty miles from the Canadian border, has a population of fewer than 10,000 people, 81 percent of whom are white. Native Americans make up the second largest group, with 13 percent. The Latino/a population is only 4 percent, or about 400 people.² Havre was founded in the 1890s as a stop on the Great Northern Railroad that linked Minneapolis with Seattle. The town has a network of underground businesses that were dug over one hundred years ago as a refuge from the biting winter winds. The underground mall, which is marked at street level by purple tiled skylights, once held a bar, a Chinese laundry, and a bordello, but is now a tourist attraction. Despite its small size, Havre is the hometown of two former governors of Montana, Stan Stevens (1989–1993) and Brian Schweitzer (2005–2013), as well as Montana’s Democratic senator, Jon Tester (2007–present). Jeff Ament, the bass player in the rock band Pearl Jam, is also from Havre.

Ana and Mimi were speaking to each other in Spanish when Border Patrol agent Paul O’Neill walked into the store. O’Neill, with a thick brown mustache and crisp green uniform, was immediately suspicious because he thought no one spoke Spanish in Havre. He got a water from the cooler and then stood in line behind the two women in order to eavesdrop on them.

Havre is a small town where everyone knows each other, and people often greet each other in stores. Mimi turned to O’Neill and said, in English, “Hi, how’s it going?”

Agent O’Neill said, “Hi.” Then he commented on how strong her accent was and asked, “Where are you from?”

Ana and Mimi were surprised. They said, “We’re from Havre.”

Both women were American citizens born in the United States. They had moved to Havre in the previous decade, Ana in 2014 for her husband’s job and Mimi in 2010 because she fell in love with the area after a visit. As longtime Havre residents, they did not recognize O’Neill and were actually wondering where he was from. The women continued their conversation in Spanish.

Agent O’Neill flashed a knowing smile and then said, “Yeah, okay, but where were you guys born?”

The women were annoyed at this point. “Seriously?” they asked.

Agent O’Neill noted their confrontational tone and said, “I’m very serious, actually.”

Ana told him she was born in Texas; Mimi, California. O’Neill was not convinced, particularly because he could not believe that Mimi would speak accented English if she was born in California. He asked for their IDs and both women gave him valid Montana driver’s licenses.

Agent O’Neill knew that driver’s licenses were not citizenship documents and continued to harbor doubts that Ana and Mimi were in the country legally. He decided to detain them and took them out to the parking lot beside his white and green Border Patrol truck to continue his investigation. He also called for backup, and several other agents quickly arrived, including a supervisory agent. Other shoppers at the Town Pump gawked at the spectacle of the cluster of Border Patrol trucks and the two detained women in the normally quiet town.

Ana and Mimi decided to record the interaction. On camera, they asked O’Neill why he targeted them.

He responded matter-of-factly, “Ma’am, the reason I asked for your ID is because I came in here and saw that you guys are speaking Spanish, which is very unheard-of up here.” The women decided not to remind the agent that Montana itself is a Spanish word.

The women turned to the supervisor and asked if they would have been detained if they were speaking French.

The supervisor shook his head. “No, we don’t do that.”

After being held for forty minutes, they were released. At no point during the detention did Ana mention that the reason she moved to Havre was because her husband was one of their colleagues who worked for Customs and Border Protection as a field operations agent at the port of entry on the Canadian border.

In 2019, the ACLU filed a lawsuit on behalf of the women, asking for damages for the violation of their Fourth and Fifth Amendment rights. The residents of Havre, however, blamed the women.³ They were yelled at and harassed in public and Ana was even pushed by a man who confronted her. Their children were called racial slurs in school. Both women were forced to move away to avoid the harassment. Ana went back to El Paso, even while her husband continued to work as a CBP agent in Havre, and Mimi moved to Great Falls, Montana.

As the case made its way through the courts, the ACLU obtained a series of damaging documents about Agent O’Neill specifically and the conduct of the Border Patrol in Havre generally. As part of the investigation of the incident, the supervisory Border Patrol agent who arrived as backup for Agent O’Neill at the Town Pump store participated in an interview with Border Patrol internal affairs officials.⁴ The supervisor thought that Agent O’Neill’s actions were routine and well within the norm for agents in Havre. The supervisor even recounted a story about himself when he was at the local mall in Havre with his family on his day off. He was eating at a restaurant when he looked up and saw “two Mexicans” at a nearby store. He debated about whether he should report it to his on-duty colleagues and after a few moments of observation decided to make the call. As he reached for his phone, he realized he was too late. He noticed another off-duty Border Patrol agent with his cell phone to his ear, following the two people about twenty feet behind them. He chuckled, “Really, it’s like that if there is somebody speaking Spanish down here, it’s like all of the sudden you’ve got five agents swarming in.”

The supervisor went on to explain, “It is a small place and we have a lot of agents here. And nobody really has much to do.” The supervisor said he was surprised when he found out that Ana was from El Paso. He felt like she should understand that racial profiling is the norm for non-white people in the border zone. He shrugged and laughed as he said, “What are you complaining about? You’re from El Paso, you do this every day.”

Racial Profiling in the Border Zone

The Border Patrol denies that they use racial profiling as a normal practice in the border zone. They collect data only on arrests, not on all stops or interactions, so they do not have data to prove their claim. However, their training documents give agents an overview of the 1970s Border Patrol cases and expressly allow for racial profiling. The 1981 version of the training materials summarized the articulable facts of reasonable suspicion from the Brignoni-Ponce case but expanded the wording beyond the “Mexican appearance” in the ruling. It lists “characteristic appearance of persons who are from foreign countries” as an example of an articulable fact.⁵ The 1999 Laws of Search Manual says agents can use “appearance of the occupants, including whether their mode of dress and/or haircut appear foreign.” By 2012, the explicit references to race were removed from the training manuals, but they still said that appearance could be a fact of reasonable suspicion, including if someone looked “dirty.”⁶

Complaints by individuals targeted by the Border Patrol and studies by outside groups have shown that racial profiling is a common practice both in roving patrols like the one that targeted Ana and Mimi and at the interior checkpoints. In an analysis of Border Patrol arrests in Ohio in 2010 and 2011, 85 percent were of Latino/a descent even though they make up only 3 percent of the state population. Although ostensibly the patrols in the northern border region should be targeting entries from Canada, the country across the border, less than one quarter of 1 percent of those stopped by agents were Canadian.⁷

Geoffrey Alan Boyce and the ACLU of Michigan found a similar pattern when they analyzed the Border Patrol’s apprehension and arrest records in Michigan. Although the Border Patrol’s authorization is to stop clandestine entries into the United States, only 1.3 percent of people apprehended in Michigan had crossed from Canada. The majority were longtime residents stopped by the local or state police for a traffic infraction. The Border Patrol was then called when the officer suspected the individual was in the country without authorization. The average person had resided in Michigan 7.36 years at the time of their apprehension.⁸

The Michigan analysis also demonstrated how easy it was for agents to manufacture reasonable suspicion under the guidelines the Supreme Court established in Brignoni-Ponce. No matter what an individual did when they encountered a Border Patrol agent, it was perceived as suspicious. If they drove too fast or drove too slow, that could result in suspicion. If they stared at the agent, that was suspicious in some cases, but in others it was suspicious if they averted their gaze. The records also confirmed that the agents were relying on racial characteristics in their decisions to make stops. In essence, the Brignoni-Ponce guidelines for reasonable suspicion were so broad that the agents could stop any vehicle they wanted.⁹

In Arivaca, Arizona, local residents were frustrated with the Border Patrol’s constant interference with their daily lives. Although the Martinez-Fuerte decision stated that “Motorists whom the officers recognize as local inhabitants, however, are waved through the checkpoint without inquiry,” the residents of Arivaca have found this is not the case.¹⁰ The Border Patrol tries to prevent agents from establishing roots in the local community because they believe it makes them susceptible to corruption and smuggling. Instead, agents are typically rotated through different postings every few months, before they can become familiar with the local population. The residents of Arivaca formed an organization called People Helping People, initially to provide humanitarian aid, but later they began to monitor the Border Patrol’s activities in town and on the highways nearby.

Arivaca is a tiny town with a population of only 700, about eleven miles north of the U.S.–Mexico border. It has a post office, a restaurant, and a small grocery store along with a few blocks of irregularly spaced homes. There is only one road that passes through town, the two-lane Arivaca Sasabe Road. To the east, it is a thirty-minute drive to Interstate 19, which connects Tucson and Nogales. To the west, the road winds through the Buenos Aires National Wildlife Refuge for twelve miles before it hits Route 286, the north-south road that connects the border town of Sasabe with the western suburbs of Tucson. No matter which way they go, residents of Arivaca have to pass through at least one Border Patrol checkpoint to drive to any other part of Arizona.

Rather than refusing to comply with the Border Patrol’s requests like Terry Bressi, the University of Arizona astronomer, People Helping People instead started to simply show up at the checkpoints and observe what was happening there.¹¹ They would bring folding chairs, cameras, and notebooks to monitor the activities of the agents. From their perspective, it was a public road so they were free to sit on the shoulder for as long as they wanted.

The Border Patrol did not see it that way. On the first day of observation, the Border Patrol threatened to arrest the monitors and called the local police. The Border Patrol tried to prevent them from observing at all and then expanded the size of the checkpoint so the monitors were forced to sit far from where the stops occurred. The agents parked vehicles in front of them to block their view and left the engines running for hours with the exhaust pointed at the observers so they had to breathe in the noxious fumes. The Arivaca residents filed a lawsuit against the Border Patrol on First Amendment grounds, which is ongoing.¹²

In 2014, People Helping People released a report on their observations of the Amado checkpoint, to the east of Arivaca toward I-19. Between February 26 and April 28, 2014, People Helping People volunteers counted 2,379 vehicles that were forced to stop by the Border Patrol at the checkpoint. They found that cars with only Latino/a occupants were twenty-six times more likely to be asked to show ID and twenty times more likely to be referred to secondary inspection compared to vehicles with white occupants. The report also raised serious questions about the efficacy of the Amado checkpoint. During the entire one hundred hours of observation, the Border Patrol did not make a single immigration apprehension or drug seizure.¹³

Racial Slurs

The discovery process for Ana and Mimi’s lawsuit in Montana revealed numerous racist text messages from Border Patrol agent O’Neill, who detained them for speaking Spanish in the convenience store. In one thread, a friend texted Agent O’Neill, “Haha hey man what’s going on?” O’Neill texted back, “Busy working to the max.. thank God for Trump the national constipation has been relieved were back to doing some good numbers.. quit harassing little beaner girls…” In another, a friend wrote, “Yeah what is he doing if he isn’t with you guys?” O’Neill wrote back, “Idk. Talking about killing tonks with a machine gun instead of the wall to some dude standing behind me.” The friend replied, “That sounds like him.”¹⁴

The violent and racially charged culture of the Border Patrol is not limited to a few bad actors like Agent O’Neill. Instead, evidence suggests that it is pervasive across the agency, from the lowest field agents to the highest echelons of leadership.

Jenn Budd was a Border Patrol agent from 1995 to 2001 and witnessed the racism firsthand. Budd, with reddish blonde hair and blue eyes, graduated from Auburn University with a BA in criminal law but without a clear plan for what she wanted to do. She thought about law school, but then heard from a friend that the Border Patrol was hiring. Growing up in Alabama, she had no idea what the Border Patrol did, but when the recruiter explained that agents were tasked with stopping criminals from entering the United States, she signed up. She was one of four women in her class at the Border Patrol Academy at the Federal Law Enforcement Training Center in Glynco, Georgia.

During Budd’s training at the academy, a Latino language instructor explained the different terms agents use for migrants. He told her that in Texas, they call them wets, a shortened version of wetback that was commonly used by the Border Patrol for decades. However, in California, they do not use wets because migrants have not crossed the Rio Grande. Instead, they use tonks.

Budd asked what it meant.

“For the outside, to the press, you say it means ‘Temporarily Out of Native Country,’” the instructor told her.

“Okay,” Budd said, “but what does it really mean?”

The instructor responded, “It’s the sound our flashlight makes when we hit them on the head. Tonk.”

Budd explained to me that using terms like tonk was just part of the culture at the agency. She said, “If you have a problem saying the word tonk, you can’t be a Border Patrol agent.” She continued, “I knew it was a racist term. . . . Yet, at the same time, it was also taught to me and reinforced. Those who don’t use the tonk word are looked down upon and seen as threats.”

In 2018, Hector Regalado, a retired senior Border Patrol agent, started a new business selling Border Patrol–themed T-shirts. Prior to his retirement, Regalado was a special operations supervisor, which is the third highest-ranking position at a Border Patrol station. In his new career as a T-shirt maker, Regalado’s marketing materials made light of the common racial slurs used by Border Patrol agents. One shirt had a large flashlight and the word TONK below it. The description of the shirt explained: “Tonk! Yeah you know the sound . . . no need to explain it. You either know it or you don’t!”¹⁵

Tonk is only one of many racist terms that remain common in the Border Patrol. Agents still frequently use wetback and other variations including wets, mojados (Spanish for wets), and POW, short for Plain Old Wet.¹⁶ Agents also use the term floaters to refer to people who die when crossing the Rio Grande. When agents apprehend people alive, they will often refer to them as bodies rather than people. As in, “I’ve got three bodies. Send a van to pick them up.”¹⁷

In 2019, a secret Border Patrol Facebook group called “I’m 10-15,” which is the code for having people in custody, was revealed by journalists. It had almost 10,000 members, including Carla Provost, the national head of the Border Patrol at the time. Provost was not a passive member of the group; she had even posted in it.¹⁸ Rodney Scott, the Border Patrol chief from 2019 to 2021, was also a member, as was Agent O’Neill who detained Ana and Mimi at the convenience store. “I’m 10-15” was rife with racist and sexist jokes as well as violent imagery that dehumanized migrants. One posting included an image of Elmo saying “Oh, well. If he dies, he dies” in response to the death of a sixteen-year-old Guatemalan boy at a Border Patrol station in Weslaco, Texas. Another included a faked image of Donald Trump forcing Representative Alexandria Ocasio-Cortez to engage in a sex act. A third post included the picture of the face-down bodies of Óscar Alberto Martínez Ramírez and his two-year-old daughter Valeria, who died attempting to cross the Rio Grande in June 2019. The agent who posted the photo expressed no sympathy for the deaths. Instead, he surmised that it was a fake photo because he had never seen “floaters” whose bodies were so clean. After the group was revealed, the Border Patrol investigated 136 people, suspended three dozen, and fired four agents. A 2021 congressional report criticized the agency for the light punishments most agents received.¹⁹

Attempts to Ban Racial Profiling

There is a broad public consensus in the United States that law enforcement officials should not use racial profiling in their work. A 2020 Monmouth study found that 76 percent of Americans thought that racial discrimination was a big problem in the country, and a 2014 Reason-Rupe survey found that 70 percent of Americans disapprove of police using race as a factor in making traffic stops. A 2020 Kaiser Family Foundation survey found that 41 percent of Black Americans, 8 percent of Latino/a Americans, and only 3 percent of white Americans reported having been treated unfairly by police due to their race.²⁰

Most Americans probably assume that racial profiling is already against the law and that the question revolves around whether police or Border Patrol agents should informally use race in making decisions. Unfortunately, that assumption is wrong. Since the 1990s, a series of lawmakers have attempted, and failed, to pass legislation banning racial profiling by police. Consequently, racial profiling is not officially sanctioned for local and state police officers, but it is not banned either.

The effort to ban racial profiling was led by Democrats in Congress, including late Michigan representative John Conyers and former Wisconsin senator Russ Feingold. Feingold first proposed the law in the Senate in June 2001 along with his cosponsors, Hillary Rodham Clinton (D-NY) and Jon Corzine (D-NJ). The bill never passed, but Feingold submitted it for consideration in every successive term of Congress until he lost his seat in 2011. Senator Ben Cardin of Maryland took up the mantle and has continued to work toward the legislation in the years since.

As the congressional effort to ban racial profiling stalled, in 2014 Attorney General Eric Holder, the first Black man to serve as the top law enforcement official in the United States, directed the Department of Justice to review federal guidelines for the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity in policing. The review resulted in new guidance that “reaffirms the Federal government’s deep commitment to ensuring its law enforcement agencies conduct their activities in an unbiased manner.” Holder said at the time that racial profiling was “simply not good law enforcement.”²¹

The 2014 guidelines ban racial profiling as a general law enforcement technique but allow the consideration of race in a particular case. There is a difference between a police officer being told that a six-foot white man with a red hat stole a motorcycle, and generally operating under the assumption that all white men are suspicious and are more likely to steal motorcycles. In the first instance, the appearance of the individual is important for identifying the specific person who is being sought. In the second, millions of people who have not committed a crime will be stopped, inconvenienced, and potentially found with some other violation when they should have the right to privacy.

The new guidance ensured that most federal officers could not engage in racial profiling, but the guidelines do not affect local or state police officers. Additionally, the ban on racial profiling does not apply to the Border Patrol.²² The Obama administration’s guidelines said, buried in a footnote, “In addition, this guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.” Consequently, the Border Patrol is still free to use racial profiling in order to decide whom to stop and interrogate in the border zone. At the time, a DHS official told The New York Times, “We can’t do our job without taking ethnicity into account. We are very dependent on that.”²³

Status Quo

There is little doubt that Ana and Mimi, the two women who were detained in Montana for speaking Spanish, were subjected to the type of racial profiling that Justice William Brennan warned about in his dissent in the 1976 Martinez-Fuerte case. Brennan had concluded that “today’s decision would clearly permit detentions to be based solely on Mexican ancestry.” In both the Brignoni-Ponce and Martinez-Fuerte decisions, the Supreme Court allowed the Border Patrol to use racial characteristics when deciding whom to stop and ask questions about their citizenship status. In 1975, Brignoni-Ponce listed a series of factors agents could consider when making a roving patrol stop, including “the characteristics of the area in which they encounter a vehicle.” It goes on to say, “The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In 1976, Martinez-Fuerte confirmed that agents could also use the race of individuals at interior checkpoints in the border zone. Justice Lewis Powell’s opinion stated, “We further believe it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente Checkpoint on the basis of criteria that would not sustain a roving-patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation.”

The Supreme Court’s opinions in Brignoni-Ponce and Martinez-Fuerte were written over forty years ago, in a different era. The court has twice reconsidered the stop authority of the Border Patrol that it created under Brignoni-Ponce that relies on the totality of the circumstances and specific articulable facts from the agents on why they made the stop. In both cases, United States v. Cortez (1981) and United States v. Arvizu (2002), the justices reaffirmed the 1975 Brignoni-Ponce decision. However, neither of those cases considered the racial profiling aspect specifically. In 2000, the Ninth Circuit Court of Appeals did make a decision in United States v. Montero-Camargo that carefully considered the impact of racial profiling on border policing. The decision is critical of the practice, but in a legal sense comes to a similar conclusion as the Supreme Court in Brignoni-Ponce. The court has never revisited its checkpoint decision in Martinez-Fuerte, but it did rule in 2000 that general law enforcement checkpoints were not allowed in City of Indianapolis v. Edmond.

In the end, this means that the rules are the same for Border Patrol agents today as they were in in the 1970s. Despite the widespread criticism of unequal racial impacts of policing in the United States, the Border Patrol continues to be able to use racial profiling in every interaction they have in the border zone. That profiling is not hypothetical or implied, but explicitly approved by the United States Supreme Court and in the Department of Justice’s 2014 guidance that exempts the Border Patrol and other immigration officials from the ban on such profiling. On a roving patrol, agents cannot use the race of the individual as the only factor to justify a stop, but they can consider race along with at least one other factor. Consequently, the detention of Ana and Mimi did not meet that standard. The Department of Homeland Security settled their case in November 2020 and paid them undisclosed damages. Alex Rate, the women’s lawyer, concluded, “I would be shocked if what we found here in our case was not present in every Border Patrol sector in the country.”²⁴ If the agent had used additional factors, it could have been a legal stop. At the interior checkpoints, the agents can continue to use race as the only factor when deciding to send someone to secondary inspection for brief questioning, as the checkpoint monitoring in Arivaca demonstrated was the norm.

Despite the violent actions of agents, the unauthorized use of interior checkpoints for general policing, and the use of racial profiling in interactions with the public, the United States Congress has not attempted to reform the Border Patrol. Instead, their budget continues to increase. Customs and Border Protection is the largest law enforcement agency in the United States, with access to many new and sophisticated surveillance technologies. As a result, CBP and the Border Patrol have been called upon in an ever-growing series of situations that take the agents further and further away from their original mandate. Rather than a small immigration police force operating in the remote border zone, the leadership of the Border Patrol envisions the agency as a national police force.