Joseph Bernstein: Racial Profiling vs. Real Profiling

The basic fallacy being promoted by Senator Juan Pichardo and the ACLU of Rhode Island is that "racial profiling" will result from the governor's initiative (PDF). Nothing could be further from the truth.

When I was an INS agent in Chicago, I spent a lot of time on the common carrier detail, which was basically identifying and arresting illegal aliens using various forms of public transportation. It was a volatile situation at best, but we were never seriously accused of violating the rights of any U.S. citizen or resident alien.

When we worked the domestic terminal at O'Hare checking the "smuggler's special" flights from the West and Southwest, we profiled behavior and other articulable facts rather than just racial appearance. Men wearing two pairs of pants was a dead giveaway (the old pair outside to preserve the newer pair while crossing the border). Dental work on younger people that hadn't been done in the United States in many years. Inability to speak English when casually approached. A group of young men together wearing nearly identical out-of-date platform shoes and double-knit leisure suits (provided by the higher-end smugglers). "Reading" an English language newspaper upside down. Need I go on?

In another venue, the mass transit facilities in the city of Chicago, we stopped a lot of non-Latinos — many East Indians, Caucasians, and Africans — based on dress, the neighborhood, and other factors. The point here is that we didn't just stop people of "Latino" appearance. If such individuals exited a plane or a bus acting and dressed like they knew where they were and what was going on around them, they didn't merit a second glance. Believe it or not, some aliens were still dirty with dust and grime from their crossing. But we did not interfere with people who were lawfully here.

In the case of the ACI, there are two means of identifying potential persons of interest: place of birth, which is a normal pedigree question upon arrest or commitment to facility, and criminal record based on fingerprints. If fingerprint history shows a previous incident of processing by the U.S. Border Patrol, INS Investigations Branch (no longer in existence), or ICE, that is sufficient to conduct an investigation regardless of claimed place of birth. As for the latter, the Board of Immigration Appeals has held that admission of birth abroad is a prima facie indication of alienage. There are many people born abroad who are U.S. citizens at birth or through naturalization. A brief inquiry is usually sufficient to determine this, although there are some individuals who falsely claim U.S. citizenship, a serious felony (18USC911).

Note that, in both instances, race and specific national origin are not the elements which initiate the investigation. So how does this constitute "racial profiling"? It would be applied to all foreign born individuals in the ACI.

I recall a major case we worked in Illinois in the early 1980s when I was assigned to the Chicago Anti-Smuggling unit (now called "human trafficking"). It involved Caucasian aliens from Kosovo. A state trooper who was an expert at detecting smuggling "loads" (he intercepted over 800 smuggled aliens in just one year on I-80) stopped an automobile for overloading. There were eight adult males. The driver was a U.S. citizen, but none of his passengers could speak a word of English and apparently had no idea where they were. The trooper detained the vehicle and its occupants and called INS. This initiated the largest non-Mexican smuggling investigation in the history of the Chicago District Office, resulting in the indictment of eleven individuals.

"Racial profiling" played no role in this case. The trooper and all the occupants of the vehicle were white. The trooper relied on his knowledge and experience to evaluate the situation based on behavior, circumstances, and language (or lack thereof). He applied the same standard he always used regardless of the racial makeup of the vehicle occupants.

What we used as parameters to initiate questioning involved mainly behavior, clothing, location, and occupation (e.g., cab drivers). Interestingly, we never questioned or arrested Latino cab drivers because it was almost unknown for illegal aliens of Latino background to drive cabs and, the Latino drivers we observed were generally assumed to be citizens/legal residents.

In general, law enforcement agencies other than ICE should not engage in proactive investigation of immigration status of individuals absent an underlying arrest/detention for violations within the jurisdiction of the agency involved. An exception would be when a felony is apparently being committed in the presence of the officers — such as a traffic stop of a van when it is observed that a large group of people is contained within and have apparently been using improvised toilet facilities, are in dirty conditions indicative of a long trip without a chance to wash up, have soiled clothing possibly as a result of a border crossing, don't speak English, all of which would indicate the crime of smuggling/transporting under 8USC1324. This is a serious felony with potential incarceration of up to five years per alien transported/smuggled .

The Rhode Island State Police are exemplary professionals, and I believe they will put their ICE training to work in conjunction with their own training and experience to perform duties relating to illegal aliens in a restrained and dignified way, based on solid facts and observations rather than whim.

Joseph Bernstein worked for the U.S. Immigration and Naturalization Service (now ICE) for twenty years, including twelve years in the Providence area.