May 1, 2001
Files Suggest Profiling of Latinos Led to Immigration Raids
By SUSAN SACHS
Before immigration agents raided Al's Deli on Seventh Avenue in Midtown Manhattan four years ago, they considered several factors. One was an anonymous tip alleging simply that 10 of the 20 or so workers were illegal Mexican immigrants. Another was their own surreptitious observations about the employees.
An agent who conducted a surveillance of the delicatessen, between 34th and 35th Streets, reported that some workers appeared to be of South or Central American descent. Some spoke Spanish, the agent noted, and others spoke English "with a foreign accent."
That was enough to prompt a raid of the deli in search of illegal immigrants.
The raid was a modest law enforcement success for the Immigration and Naturalization Service's New York district, which covers New York City and Long Island. It netted three illegal immigrants from Mexico and one from India from among the dozen workers present.
But the operation also followed a familiar pattern in the New York district, one that senior immigration officials say may have violated the federal agency's guidelines for avoiding ethnic or racial profiling. In this and other cases, agents appeared to rely almost exclusively on Latino appearance or foreign accents - common attributes in New York and other American cities - to reach a conclusion that workers could be illegal immigrants.
A review by The New York Times of 37 I.N.S. work site raids in the district showed that agents frequently cited skin color, use of Spanish, foreign accents and clothing "not typical of North America" as primary evidence that workers were likely to be undocumented.
Agents are required to have specific facts in hand or a reasonable suspicion to question someone's legal status, like nervousness when confronted with the immigration agency or unfamiliarity with the surroundings. Appearance may be one factor, but courts and the agency itself have said it is discriminatory to stop and search a person based on foreign appearance alone.
The files reviewed represent 20 percent of the district's 187 work site cases during a 30- month period from January 1997 through June 1999. The Immigration and Naturalization Service itself selected the cases as a random sample and provided them to Unite, the garment workers' union, as part of a settlement of a lawsuit alleging selective enforcement. The union provided them to The Times.
All but a handful of the 37 raids did result in the arrests of illegal workers and, unsurprisingly considering the criteria used, nearly everyone arrested during that period was Latino. And while some investigations grew out of detailed accusations by an informed tipster, in 30 of 37 cases a raid was carried out after agents made observations as simplistic as those at Al's Deli.
"Obviously, mere nationality and mere ethnicity by themselves, unsupported by other facts, are absolutely no basis for us to determine a person is illegally in the United States," said Joseph Greene, the assistant I.N.S. commissioner for investigations in Washington. "There's a whole body of jurisprudence that has heightened everybody's sensitivity to that," he added.
As the nation has become more diverse, largely because of an influx of legal immigrants from Latin America and Asia, the role that ethnic profiling may play in the enforcement of immigration laws has become an issue of mounting concern for advocates and the agency itself.
Nationality is clearly an element to be considered when looking for illegal immigrants: all illegal immigrants, by definition, are foreigners. But simply looking or sounding foreign, civil rights groups have argued, is not a sufficient basis for suspicion in a country where illegal immigrants may not differ in race, ethnicity or national origin from everyone else around them.
And as in other instances of profiling - whether on the New Jersey Turnpike or the streets of Harlem - there are costs to the innocent people swept up. In the New York raids and others like them, fully legal people are subjected to the humiliation of proving their status, sometimes after being jailed.
That happened to Maria Espinoza, a worker from Ecuador who was arrested during an immigration agency raid on the SPD Molding factory in Long Island City, Queens, in September 1999. She told agents she was a legal permanent resident, but was detained with other Latino workers and told she would be deported.
"At that moment, I did not carry my green card, but the people did not believe me," Mrs. Espinoza recalled this week. "They handcuffed me and arrested me." A computer check eventually confirmed her innocence, and she was released after spending three hours in detention.
A number of legal challenges have been brought recently in several states, including Arkansas and California, accusing the authorities of singling out Latinos for questioning about their immigration status.
A federal judge in Ohio recently ruled that state highway patrol officers, acting as de facto immigration agents, violated people's rights by routinely pulling over Latino drivers to question their immigration status. In one instance, legal migrant workers were stopped and had their green cards taken by officers who said they were fraudulent.
Courts have generally given I.N.S. officers themselves greater latitude to stop people for immigration checks, particularly near the border, but still set constitutional limits. The Supreme Court has ruled, for example, that I.N.S. agents working near the Mexican border may use their suspicion of someone's Mexican ancestry as one of the grounds for stopping that person, although it legally cannot be the only grounds.
In three more recent cases in California, federal judges said immigration agents committed "egregious" violations of the Fourth Amendment when they stopped individuals solely on the basis of their Latino appearance or foreign-sounding name.
"There may or may not be an argument for using ethnicity or national origin as one of the predicates for enforcement actions along the border," said Charles Kawasaki, vice president of the National Council of La Raza, a Latino group in Washington. "But you just can't make that case in the interior of the country," he added.