UNCOVERING USBP

For almost four years, Families for Freedom (FFF) has been seeking information about the policies, practices and consequences of United States Border Patrol’s (USBP) operation in which they demand to see “papers” from persons traveling and living in Northern New York.  In our last report, co‐authored by the New York Civil Liberties Union, we showed that of the thousands of individuals placed in removal proceedings after being questioned by USBP agents on trains and buses, only a miniscule percentage were recent entrants to the United States.  

But that report relied solely on the information that USBP released early in litigation about USBP practices. This report now adds crucial information about USBP’s aggressive internal enforcement practices. Using information gathered from depositions of senior officials, and data and documents released after years of litigation, this report shows the following:

• USBP uses three different bonus programs to reward its agents. The programs include cash bonuses, vacation awards and distribution of gift cards of up to $100.  As part of the settlement of our case, CBP gave us tallies for each of these for the Buffalo Sector (which covers northern New York).  We also obtained the documents for approving the cash and time off awards, which provide no justification for which agents are awarded year‐end bonuses of up to $2,500 or 40 hours of vacation time. The sums spent on these programs in the Buffalo Sector alone amount to over $200,000 a year.  The gift card program, which was not funded in 2009, resumed in 2010.
  
  
• USBP has adopted a protocol for documenting arrests of individuals who are later determined to have legal status.  Through FFF’s lawsuit, we obtained copies of forms – called “I‐44” forms – for persons arrested by agents at the Rochester Station. An analysis of those forms shows that the vast majority of those wrongfully arrested were from South Asian, East Asian, African, and Caribbean backgrounds.  In just one program (train and bus arrests) in one station, almost 300 persons who had a form of legal status were arrested and transported to USBP offices prior to being released.  The actual number is probably far higher because CBP did not formally instruct its agents to document these arrests until June 2010. These legally present individuals include 12 U.S. citizens, 52 Legal Permanent Residents, 28 tourist visa holders, 37 student visa holders, 39 work visa holders, 51 individuals in immigration proceedings, 26 with pending immigration applications, and 32 individuals that had been granted asylum, withholding or temporary protective status. Eleven individuals had other forms of status, including diplomatic visas, special visas for victims of domestic violence, and special status provided to the citizens of former US territories.  Many of these people were arrested because of USBP database errors. The report includes stories about the experiences of these people, including those who are arrested in the middle of the night, and many who are forced to depend on family or employers to fax documents to USBP in order to be released.
  
  
• Contrary to sworn statements submitted in the federal district court stating that the agency did not maintain an array of arrest statistics, including annual totals for the Rochester Station, the depositions ordered by the Court revealed that arrest statistics are the primary measure employed by local USBP stations and their Sector supervisors in the Buffalo Sector.    The Agent in Charge in Rochester testified that recording the station’s daily arrest statistics and sending them to the Sector is the last job of the supervisor at the end of the day. The next morning, the Buffalo Sector office sends summary arrest statistics out to each station in time for each Patrol Agent in Charge to review when he first opens his e‐mail in the morning.  Meanwhile, the Chief of Staff of USBP testified that the national office of USBP tracks arrest statistics and distributes reports through mass emails on a twice daily basis.    The Agent in Charge for the Rochester Station, which is the subject of much of the data in this report, stated that the Station does not keep any other regular measure of performance.
  
  
• The documents show that USBP agents act on the assumption that no matter where they operate within the United States, they may arrest any noncitizen—whether a tourist or a long‐term legal resident with a driver’s license—whenever that person is not carrying detailed documentation that provides proof of status.  But USBP’s records also show that the agents are not genuinely interested in what documents the law might require noncitizens to carry.  Instead, USBP’s demand for “papers” is universal, resulting in an enforcement culture that maximizes arrest rates. 

Altogether, the documents show that USBP’s policies send a message to the foreign born that is ugly and untenable. This is especially so in New York State, where more than one in five persons was born abroad,  and one in ten is a foreign‐born U.S. citizen.  The remedy is clear: it is time for USBP to leave its unjustified mission of policing the interior of the United States and to end its unregulated bonus programs.  USBP should not be allowed to transform the areas of the United States that are adjacent to the border into a police state in which persons are forced to carry papers at all times to be ready for a demand by a USBP agent to “show me your papers.” Otherwise, as the data shows, USBP will continue to arrest US citizens, lawful permanent residents and countless others who should not live in fear of traveling or living near the border.