COMPROMISED FREEDOMS &
BY KRISTAN OBENG
COMPROMISED FREEDOMS &
BY KRISTAN OBENG
Introduction: Compromised American Freedoms
THIS THREE-PART 14-MONTH INVESTIGATION examines what happens to American citizens at Border Patrol checkpoints and on highways and roads within 100 miles of the U.S.-Mexico border.
Over the course of 44 years, Americans’ constitutional and civil rights have been undermined within this zone. Through U.S. Supreme Court decisions, such as Brignoni-Ponce in 1975 and Martinez-Fuerte in 1976, U.S. citizens have legally lost rights guaranteed by the constitution and federal and state laws.
Within the country’s interior, U.S. citizens are guaranteed freedoms, such as the fourth amendment, which protects from warrantless searches and seizures and invasion of privacy. But within the 100-mile zone, which is also known as the “constitutional-free zone,” the fourth amendment and other rights appear to go out the window.
“I would think that any place where government power is unrestrained by the constitution or laws is a place where the government is possibly subject to criticism and not necessarily adhering to rights of citizens and others,” says Kevin Johnson, dean at UC Davis School of Law.
Agents with U.S. Customs and Border Protection, or CBP, are also the focus of this project. CBP is a department within the Department of Homeland Security (DHS), which is the third largest federal department after the Department of Defense and the Department of Veterans Affairs. And included within CBP is U.S. Border Patrol.
Much reporting has focused on Border Patrol agents’ interactions with undocumented people. This project focuses on Border Patrol agents’ interactions with documented people.
RELATED: Interview with a retired Border Patrol agent
Agents operate with a lot of secrecy and little transparency. As a result, many Americans near and far from the southern border may not have a full understanding of the effects of border enforcement policies on U.S. citizens.
“Transparency is something Border Patrol is lacking. Police officers put out videos of officers involved in use of force incidents. That’s the difference. They answer to the public,” says Christopher Montoya, who worked as a Border Patrol agent in Arizona for 21 years.
“I’m not going to say Border Patrol is the devil. There are ethical people. They lack transparency,” he adds. “I’m being vocal now because of deficiencies in the agency.”
Despite Border Patrol’s deficiencies, the agency continues to be funded by the federal government.
CBP’s funding has increased from $10.1 billion in 2010 to $12.1 billion in 2017, according to The White House.
Additionally, President Donald Trump proposed expanding CBP’s budget to $14.2 billion for 2019 and designating “an additional $211 million to support efforts to recruit, hire, and train 750 new Border Patrol Agents.”
As of fiscal year 2018, there are nearly 20,000 Border Patrol agents operating throughout the United States, CBP figures show. Nearly 3,700 of these agents operate in the Tucson Sector, with just shy of 850 in the Yuma Sector.
Trump’s decision to dedicate millions to hire more agents appears questionable. Migration levels have gone down. In 2000, migration reached more than 600,000 in the Tucson Sector, according to CBP apprehension data. By 2018, migration dropped to a little over 50,000 in the sector.
But what has probably expanded in 2019 are the number of Americans living in border states or along the southern border. The 2010 U.S. Census Bureau statistics showed that 70.8 million people lived in border states and 7.3 million lived in border counties.
Therefore, it seems probable that any new agents hired will be interacting with more Americans than migrants within the 100-mile zone.
“There certainly is the potential for violation of rights, and it’s taken in the name of public security. Some would say that the limited safety protections we get are outweighed by the violations to people’s rights in that region. It’s an issue of debate,” Johnson says.
The investigation uses 154 checkpoint complaints sent to DHS, CBP and other DHS departments from 2011-2014.
This project found these complaints among thousands of pages of duplicate records and other document types, such as legal documents; apprehensions and seizures reports; emails, memos and investigation reports. This investigation grouped together associated files and investigations to determine the true number of incidents.
University of Arizona law professor Derek Bambauer doesn’t believe all incidents between Border Patrol agents and borderlands residents are documented in the complaints.
“The data Border Patrol doesn’t keep is amazing. I’m convinced this is deliberate,” Bambauer says.
Bambauer; his wife, Jane; and the American Civil Liberties Union of Arizona sued Border Patrol’s parent and oversight agencies for a variety of government records in January 2014. Getting the records after the FOIA request required much negotiation.
They received the records on an intermittent basis over several years. To date, they have 14,000 documents. Bambauer “optimistically” believes it could take up to 10 years to analyze these records.
For this investigative reporting project, Bambauer shared a portion of the initial government documents he received.
Therefore, the 154 complaints found are not completely representative of all Arizona checkpoint complaints, but they do help illuminate what goes on during stops (part 2 and part 3).
Complaints allege racial profiling; constitutional and civil rights violations; intimidation; using canines unscrupulously and more.
These complaints also complemented statements from Arizona borderlands residents, experts and scholarly research.
A database was built to examine the records, and the records were analyzed using the statistical software program SPSS.
One of the results of the analysis showed that 29 people stated they were U.S. citizens, and two stated they were not U.S. citizens. In the rest of the complaints, those who filled them out didn’t identify their citizenship, or their citizenship was redacted.
But it’s more likely than not the majority of the checkpoint complaints are from American citizens.
Researcher Raquel Rubio-Goldsmith, a Mexican American Studies professor at the University of Arizona, found that U.S. citizens are more likely to report mistreatment from border authorities than non-citizens.
How U.S. Citizens Are Affected
Another challenge regarding the records analysis involves the issue of racial profiling.
The U.S. Supreme Court gave the Border Patrol the authority to consider race and “Mexican ancestry” when stopping drivers. But the 154 case files appear to underreport racial profiling.
Drivers, or others related to the driver, reported racial profiling in 16 out of 154 cases.
“No federal agency wants to report on, or even provide data on, racial targeting or profiling. And, I think complaints are less common because it’s unlikely that the complainant will get any meaningful relief or benefit; people are a bit scared of Border Patrol; and Border Patrol usually has some cover story about why they stopped someone, even if in fact race is the real answer,” says Bambauer.
Only 14 out of 154 case files identify the race of the driver and their passengers. Most people either don’t self-identify, or their race/ethnicity (as well as any other identifying information) is redacted.
The race/ethnicity of those who self-identified included 8 whites; three Hispanics; and two African-Americans. An interracial couple (one black and one white) filed the 14th complaint.
With so many vehicles on the interstate, Bambauer, and many others, believes racial profiling is occurring.
And the people largely being affected?
U.S. citizens are often caught in the middle of border enforcement tactics carried out by Border Patrol agents.
This is most evident within 100 miles of the U.S.-Mexico border where Border Patrol agents have broad discretion.
PROFILING & PRIVILEGE
ELEVEN MILES NORTH OF THE ARIZONA-SONORA BORDER, a series of mountain ranges encircle a quiet border town with a population of a little over 600.
Arivaca looks like a setting for a picturesque postcard until arriving at Arivaca Junction on mile post 22, where mobile communications towers, high-tech equipment, traffic safety barriers and armed agents in green uniforms confront drivers with questions about citizenship and much more.
Passing the usual signs, “Border Patrol Checkpoint Ahead” and “Use Low Beams,” resident Tommy Haynes navigated his vehicle north across three speed bumps before arriving at the checkpoint on Arivaca Road in April 2018.
Three people, whose ages he couldn’t discern at a glance, had been pulled into secondary inspection at the checkpoint. He noticed them for one specific reason: There aren’t that many African Americans in Arivaca, where most of the residents are older and white, and a portion are Hispanic.
There was a new black family in the area. He knew the first names of the husband and wife, and that the family matriarch bought and sold real estate, or so he heard.
They look terrified, Haynes remembers thinking.
“I wish the roles could have been reversed,” Haynes says. “I know I benefit from white privilege. I rarely get asked for papers. It hurts me.”
To an outsider, Haynes doesn’t seem much different from the majority of men in Arivaca: Long hair, fair skin, jeans, cowboy boots. Drives a sand-splattered SUV or truck to navigate hilly, desert roads and potholes.
But Haynes is Mexican American.
Specifically, his 70-something-year old mother is Mexican-American, and his deceased father was Anglo.
“I’ve always been proud,” he says of his heritage. “I’m more Mexican than white.”
Like many with his ancestry, Haynes has the “unique view of race” Pew Research Center attributes to many Hispanics who “prefer to use their family’s country of origin rather than the pan-ethnic terms ‘Hispanic’ or ‘Latino.’
Haynes grandfather came from Mexico, and Haynes has always been proud of the life his grandfather built in Maricopa County. Mexico doesn’t collect census data on ethnicity, but the population itself is composed of many ethnic groups, including those with European and American Indian heritages. There are also millions of Hispanic black people in the Caribbean and South America due to the slave trade, according to Henry Louis Gates Jr.’s in his book, Black in Latin America.
A very large and diverse country, Mexico is home to people who come in all shades, hair colors and eye colors, which genetically helps explain Haynes and his mother’s fair-skinned appearance.
Despite how he feels about his identity, most of the world sees Haynes as Anglo, which comes with certain “rewards.” Sociologist Abby L. Ferber explained in her research article, “People of color are confronted with the reality of inequality and oppression on a daily basis, but those who experience privilege are often unaware of it and do not see how it impacts their own lives.”
While Haynes does see his privilege, he exemplifies the complexities of identity within 100 miles of the U.S.-Mexico border.
Here, U.S. Customs and Border Protection agents have set up permanent interior checkpoints not only for citizenship checks but also for additional questions, such as “Where are you going?”
Arivaca Road checkpoint in Arivaca Junction
“Just getting someone to talk by asking them a question or two is designed to elicit all kinds of information,” says Kevin Johnson, dean at the UC Davis School of Law.
Many agents also adhere to United States v. Brignoni-Ponce (1975) and United States v. Martinez-Fuerte (1976).
These U.S. Supreme court decisions legally allow Border Patrol agents to use race or the appearance of “Mexican ancestry to be a relevant factor” to stop drivers at checkpoints, according to a 2012 Congressional Research Report.
The problem with these Supreme Court decisions, several Arivaca residents and outside experts argue, is that Americans who are people of color are disproportionately affected compared to their white counterparts.
Something Haynes sees often within the 100-mile zone is racial profiling by border authorities. If he doesn’t see it personally, he hears about racial profiling incidents from those closest to him.
Haynes and his family have a long history in Arizona, and he has racked up a significant amount of years living near the southern border.
It’s through his experiences that one can better understand the stereotypical ways in which Hispanics and other minorities are viewed by the general public and Border Patrol agents within the 100-mile zone.
These perceptions, often based on assumptions, have contributed to many losing their civil and constitutional rights at Border Patrol checkpoints.
For Haynes personally, he knows what it’s like to be marginalized based on his perceived heritage.
Ethnicity Erasure in Maricopa County
Growing up in an affluent Maricopa County community, many saw Haynes as Anglo.
“You’re not Mexican!” his mother’s boyfriend told Haynes when he was a child.
His paternal grandparents too only acknowledged his light skin. They wanted to take him away from his mother soon after his birth.
“They didn’t want me raised by Mexicans,” Haynes explains.
His childhood neighborhood also lacked diversity.
Haynes didn’t see an African-American person until he began high school.
“There was only one black person,” he adds.
His father’s side of the family descended from prominent Southern plantation owners, the Tipton-Haynes, who owned slaves. Because of this history, Haynes says he sensed his father’s family discriminated against his mother.
“My mom says she was always treated nice, but behind it all they were racist. I can only assume that when my father was alone with the men in his family that he had to endure or at least hear about [his relationship],” Haynes adds.
After moving to Arivaca in December 2015 to become a woodshop instructor at Arivaca Boys Ranch, a behavioral facility for youth, Haynes began to see more examples of how accepting some of his new peers could be.
Immigration has always been a contentious issue in Arizona, but Haynes chose to get right in the mix of it by helping migrants along with others at People Helping People Arivaca, or PHP.
The 100-Mile Zone in Arizona
In 2012, Arivaca residents opened a humanitarian aid office to help migrants in distress, and they organized to protest alleged civil rights and constitutional violations by the Border Patrol.
By 2013, PHP captured worldwide media attention during a campaign in which they monitored Border Patrol agents at checkpoints. The monitoring came about after many residents described “routine harassment and abuse by Border Patrol agents and warrantless searches at the Arivaca Road checkpoint.”
Not letting the actions of individual Border Patrol agents go unchecked, PHP volunteers started videotaping their interactions with agents; held protests at nearby checkpoints and gathered signatures from a majority of the town’s residents in hopes of getting the interior checkpoint on Arivaca Road removed. But demonstrators say their petition, which includes 404 supporters, was ignored by Border Patrol.
In 2014, PHP released a report based on volunteers’ “100 hours of observation.” Findings indicated that “approximately 16 percent of Latino occupied vehicles showed identification while only 0.6 percent of White occupied vehicles did so, meaning that a Latino-occupied vehicle was more than 26 times more likely to show identification than a White-occupied vehicle.”
“There are privacy issues when you’re stopped and asked to produce identification because you’re in the 100-mile zone,” Johnson says. “Some civil libertarians believe that being asked to show identification is a violation of your right to privacy and civil liberties.”
Another result showed that Latino drivers were sent to secondary twice as many times as white drivers.
This study complemented two earlier studies published in 1994 and 2009 by Raquel Rubio-Goldsmith, a Mexican American Studies lecturer and co-director of the Binational Migration Institute at the University of Arizona, and four other researchers.
Both studies focused on the relationship between residents of the City of South Tucson and border authorities, including Border Patrol.
“The amount of people stopped and detained and harassed by Border Patrol was very high,” explains Rubio-Goldsmith. “It turned out that 20 percent of households reported some form of mistreatment, which is really high. When you look at mistreatment by police, the highest numbers are usually like three or four percent.”
South Tucson is a 1.2-square mile city surrounded by the City of Tucson. The majority of the population is Hispanic, with small numbers of other ethnicities. The small city is also six miles away from Border Patrol’s Tucson Sector headquarters.
Border Patrol agents raided homes in South Tucson nightly, Rubio-Goldsmith found.
South Tucson is also 60 miles away from the Arizona-Sonora border.
CBP stated on its website “Immigration officers, without a warrant, may ‘within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.’ CBP also defined this distance as “100 air miles from the border.”
The 100-mile zone encompasses several cities and border towns within Southern Arizona, according to the American Civil Liberties Union.
In this zone, Border Patrol agents have certain “extra-Constitutional” powers that may override the Fourth Amendment, added the ACLU.
One of those extra-Constitutional powers is legalized racial profiling.
“When the Supreme Court announced in one of its decisions that it was acceptable for Border authorities to use racial profiling, it didn’t really do anything new. It just reinforced what’s been going on all along,” says Rubio-Goldsmith. “They can do whatever they want there, and the Supreme Court has given them permission to do it. They have convinced the Supreme Court that brown people have no rights.”
Sociologist Richard T. Schaefer defined racial profiling as “any arbitrary police-initiated action based on race, ethnicity or national origin rather than a person’s behavior.”
Another sociologist, Kirk Miller’s research showed that nearly 80 percent of all large law enforcement agencies possess some form of profiling policy.
Haynes didn’t become aware of racial profiling and white privilege until he joined PHP as a humanitarian aid volunteer.
Racial Profiling in the Arivaca Border Zone
Prior to moving to Arivaca, Haynes lived in Phoenix.
In bed, he watched cable news: FOX, CNN, MSNBC. He stopped on one of the channels. On-air journalists were covering Arivaca residents who were monitoring their town’s interior checkpoints.
The name of one of the people being interviewed, Carlota Wray, caught his attention.
Wray spoke about her belief that Border Patrol agents were racially profiling her at checkpoints.
Haynes grew confused as Wray explained she was upset about Border Patrol’s onslaught of questions that went beyond asking about her citizenship.
“Some of the people pulled over are citizens who do have a legal right be here. Presumably when they show proper identification, they will be able to stay, but their rights are infringed upon because they are in this zone where the government can do basically what it wants,” Johnson explains.
The more Haynes watched the interview, the less he understood what the problem was.
“I was ignorant of the plight of others,” Haynes explains. “A few years later, [Carlota] has become one of my good friends.”
Like Haynes, Wray volunteers part-time for PHP, which is located on Arivaca Road and Fourth Avenue, in the heart of the mostly ranching and arts town.
The installation of permanent interior checkpoints near Arivaca has and continues to disrupt lives, according to the more than 400 who signed the petition for the removal of the Arivaca Road checkpoint and six of the residents interviewed for this reporting project.
Border Patrol built the checkpoint in Arivaca Junction, about 24 miles from Arivaca proper, in 2008, the year Wray became a naturalized U.S. citizen.
She carries her U.S. passport everywhere, every day. She never knows when a Border Patrol agent may hold her up at the checkpoint with questions.
“I panic if I don’t have it,” Wray says.
Border Patrol doesn’t believe her, she says, when she tells them she’s a citizen.
“It’s because of the color of my skin,” Wray adds. “I don’t have blonde hair, blue eyes and white skin. But I love my skin. I’m okay with it.”
In a statement for this reporting project, Border Patrol Spokesperson Vincent Dulesky wrote, “Through the Martinez-Fuerte decision, agents are able to quickly observe traffic and look for indicators. If these indicators that the agent is looking for exist, then that agent can refer the vehicle for a secondary inspection.”
He added, “Agents are trained to look for many indicators; for immigration violations, mere suspicion that an immigration violation has or is occurring will prompt the agent to look further.”
But some argue that what agents are trained to look for is stereotypical.
“There are stereotypes about who is a true American, who is a true U.S. citizen. Those stereotypes are based on skin color, linguistic ability and physical appearance generally. There is a perception, a stereotype really, that Mexicans are people who look Mexican are foreigners, not presumptive U.S. citizens. There are other stereotypes that people who look Anglo are presumptively U.S. citizens and belong in the country,” Johnson explains. “This idea of physical appearance equaling citizenship is a very overbroad stereotype.”
Additionally, United States v. Martinez-Fuerte indicates that Border Patrol agents shouldn’t rely solely on race in their decision to stop drivers, but Rubio-Goldsmith believes this happens anyway.
“Mexicans are supposed to be brown, supposed to be darker. Many are, but many aren’t,” says Rubio-Goldsmith.
Using “Mexican appearance in making stops is a very vague and amorphous standard that has been used for generations by Border Patrol officers,” he adds. “There are constitutional protections that exist within 100 miles of the border, but there is also a fair amount of discretion.”
Retired Border Patrol Agent Christopher Montoya
Questioning Citizenship on Federal Route 15
Many years earlier, Christopher Montoya stood in the hot, blazing sun asking drivers to state their citizenship. He adds that he didn’t do this based on race.
“When I worked the checkpoint at Federal Route 15, I recognized people,” Montoya says. “Martinez-Fuerte states that if you know locals, you should wave them through the checkpoint.”
For 21 years, Montoya worked as a Border Patrol agent in Arizona. He retired in 2017.
He acknowledges times have changed since Martinez-Fuerte was enacted in 1976. Arizona’s population has grown, and most often, agents are rotated in and out of checkpoints, as residents in Arivaca attest.
Montoya says he doesn’t believe Hispanics are questioned more at checkpoints.
“Checkpoints are a subjective experience for agents and drivers. I don’t see it as an issue of color. I see it as a question of citizenship,” he explains.
He admits that even though “agents have the best intentions, some stretch the fourth amendment.”
But in the 100-mile zone, Americans generally lose their fourth amendment rights.
“The right to be protected from searches and seizures doesn’t really apply in the constitutional-free zone within 100 miles of the border,” adds Johnson. “Part of what the fourth amendment is about is protecting people’s personal integrity and privacy. It’s even less right at the border.”
Another Arivaca resident states she lost these protections when she was stopped by a Border Patrol agent on Arivaca Road.
Feeling Discriminated Against on Arivaca Road
Seven years ago, Jolene, an older Tohono O’odham woman who asked that her last name be withheld due to fears of retaliation, set out on Arivaca’s open road with some friends. They needed to get to Tucson to put down her aging cat.
Before she could turn left onto Interstate 19, she like many residents was required to stop at the checkpoint on Arivaca Road in Arivaca Junction.
Her citizenship wasn’t requested by the tall, older white male agent on duty. Instead, he informed her a canine alerted on her vehicle.
Standing with her friends in the secondary inspection area, Jolene was shocked when the agent told them, “Shut up and don’t film.”
He then told the group he was calling a female agent over to perform body inspections.
Jolene tried showing him her tribal identification.
She still remembers his words: “You have no rights here.”
No female agent ever performed body inspections. The group was allowed to leave the checkpoint.
“He was scary. He had a gun. I didn’t know what he’d do,” Jolene says. “I think he was racist. I’m an Indian. I’m a woman.”
The agent who pulled her over, she thinks, was “higher up – I believe a captain or a supervisor.”
Now in her 60s, Jolene says she has been stopped at least 20 times by federal agents over several years.
She tried filing a complaint, she says, but the phone call went nowhere.
“I know other people this happened to,” she adds.
In 2015, the ACLU of Arizona released findings after examining various government records, such as the border checkpoint complaints used in part 2 and part 3 for this project.
ACLU of Arizona concluded that oversight agencies, the Department of Homeland Security and CBP, failed to respond to and publicly release information about civil rights violations in the Yuma and Tucson Sectors.
The organization added that “Government records show these component agencies repeatedly delegating investigatory responsibility to the local Border Patrol stations from which abuse complaints originate, eliminating any semblance of independent agency oversight.”
Perceiving Hispanic-Americans as Foreigners
There are Arivaca residents who support U.S. Border Patrol despite allegations against agents.
Haynes says at Arivaca Boys Ranch, many of his co-workers are divided over Border Patrol and racial profiling.
“I listen to both sides,” Haynes states. “I have [white] friends who are proud when Border Patrol simply waves them through [the checkpoint]. They don’t get the concept of being afraid of Border Patrol’s questions.”
Some supporters of racial profiling can be counted as members of Haynes’ family – his Mexican family. Political differences, he explains, are why the cousins he grew up with are split over the issue.
“Some believe [racial profiling is] necessary to stop migrants. They believe migrants come here to take,” Haynes explains. “My cousins are very Americanized. Our family came through the border legally, but it was much easier back then. In their mind, [our family] did things by the law.”
Haynes’ grandfather, born with the French last name “Lespron,” left Mexico in the 1920s to work as a bricklayer. Lespron was only 16 years old, but he successfully built a life for him and his family: He worked his way up, made good money, and during WWII, he bought the family home in Paradise Valley.
But his mostly white neighbors didn’t let Lespron forget he was Mexican. They petitioned for him not to move in, Haynes recounts. This seemingly affected Lespron’s approach to parenting his children.
“As a kid, my Mexican family didn’t speak Spanish to me. My mom’s twin sister didn’t teach her kids Spanish either. It was my grandfather’s philosophy not to teach his kids Spanish. He only wanted them to speak English,” Haynes explains.
There appears to be a stigma associated with speaking Spanish, especially near or at the border.
“People who feel threatened in their culture – they don’t want Spanish spoken,” says Rubio-Goldsmith.
Johnson agrees. He says he has American relatives who have been treated like foreigners in their own country.
“Family members have had questions at the port of entry if they’re speaking Spanish after coming back from Mexico,” Johnson explains.
Johnson says many of his relatives “have been fearful about getting stopped and being questioned about their immigration status even though they are here legally.”
“They are nervous about dealing with law enforcement and what may happen,” Johnson adds. “My wife has a developmentally disabled uncle who is functional. He can go to work and drive. He is a U.S. citizen by birth, but when the Arizona legislature passed SB 1070, he was deathly afraid that if he got pulled over – we weren’t sure as a family that he wouldn’t get overstressed or too nervous to effectively communicate with the officers.”
Things can get lost through miscommunication, which is why Haynes tries to pace himself when speaking with those he disagrees with.
Standing up for Your Heritage
Haynes says he tries his best to calmly communicate with people who are discriminatory toward Hispanics.
When someone disparages Mexicans in front of him, “I tell them I’m half-Mexican. I grew up with racists. They then back off.”
He adds, “I try not to always do that because I want to have an open dialogue to change their hearts. We can’t do that by arguing.”
When his family advocates for racial profiling, he gives them wide berth.
“I changed so much; they stopped talking to me,” Haynes says.
It was his grandparents, Haynes says, who taught him to be a humanitarian and stand up for what he believes in.
The Border Patrol checkpoint stop of the African-American family stays with Haynes. He wonders who they are and hopes they’re okay.
BROWN OR BLACK
THE HAYWOODS ARE THE ONLY AFRICAN AMERICAN FAMILY living in Arivaca, a predominately white community 11 miles north from the Arizona-Sonora border.
Ebony Haywood says she isn’t bothered by the lack of diversity.
She wanted a “mommy retreat” and “country living.” Something she didn’t find in Gilbert, Ariz.
Arivaca also seemed to be a step up from Gilbert. A “crazy guy” pulled a gun on her after a road rage incident. Decision made, she packed up her two daughters, Takoya and Alejah, and husband, James Canty. Haywood’s mother, Janice, also joined the family.
Haywood moved to Arivaca in September 2017. She began managing an RV park on land she owns and leases to tenants and later opened a soul food restaurant, one of two restaurants in the desert town of over 600.
The gregarious Haywood immediately made friends with the locals, including four who told her U.S. Border Patrol agents had begun asking about her.
Haywood guesses that her race made her stand out.
“We see black people…” she jokingly says, mimicking the “I see dead people” line from the movie the Sixth Sense. “We are diamonds in the rough here.”
Knowing the Border Patrol agents stationed at the Arivaca Road checkpoint in Arivaca Junction were curious about her, Haywood tried to befriend them.
She invited them to her restaurant.
She offered them one of her popular dishes.
“I am known for my banana cream pudding. I volunteer on the Arivaca Fire board, and everyone asks for my pudding,” Haywood adds.
And at the checkpoint, she automatically asked Border Patrol agents, “Do you want me to pop the trunk?”
Haywood’s desire to appear less threatening in the presence of law enforcement seems to be something many people of color feel required to do within 100 miles of the U.S.-Mexico border and in America’s urban areas.
Throughout the country, interactions between people of color and law enforcement has turned deadly or have the potential to do so.
In urban areas, there are racial disparities among those shot and killed by police officers.
Data from The Counted, a database compiled by The Guardian, showed police shot and killed
- Native Americans at a rate of 10.13 per 1 million people.
- African Americans at a rate of 6.66 per 1 million people.
- Hispanics at a rate of 3.23 per 1 million people.
- White Americans at a rate of 2.9 per 1 million people.
There have also been shootings of unarmed U.S. citizens of color by Border Patrol agents near the Arizona-Mexico border.
Many believe the situation is exacerbated by various federal and state laws that directly or indirectly license racial profiling on America’s roads.
Also, within the 100-mile zone especially, many argue that the civil and constitutional rights of the American people are often ignored because of U.S. Supreme Court decisions.
Through Haywood and the experiences of other U.S. citizens, one can understand what it’s like to be a person of color living and driving near the southern border and within the country’s urban areas.
Ebony Haywood hugs her daughter Takoya
Act I: Driving in Border Towns & Urban Areas
A Tale of Two Black Families Near the Border
After visiting relatives in Yuma, a Black family was “driving north on Highway 95” at around 8 a.m.
Eventually, they reached a Border Patrol checkpoint.
The matriarch of the family, though born in Trinidad and Tobago, was a U.S. citizen, with no distinguishable accent.
She didn’t expect that she and her family would be outside their vehicle, sitting on concrete steps in 45-degree weather for a half an hour while agents searched her car.
What also added to her discomfort was being surrounded by armed uniformed agents and canines.
Nothing was found during the search.
Not only was her fourth amendment rights and privacy violated because she was driving within the 100-mile zone, but also the woman and her family left the checkpoint feeling “humiliated, violated and harassed, as though our U.S. citizenship was no longer valid and our rights [were] not respected.”
This incident was recounted in a checkpoint complaint written in 2014. It was uncovered among 154 total checkpoint complaints sent to the Department of Homeland Security and U.S. Custom and Border Protection, U.S. Border Patrol’s parent and oversight agencies, from 2011-2014.
Although these records aren’t representative of all Arizona checkpoint complaints, they do offer insight into what goes on during stops, as part 2 and part 3 of this investigative series shows. Many of these records demonstrate patterns of mistreatment that U.S. citizens allege they experienced.
When asked about U.S. citizens who allege their rights were violated, Border Patrol Spokesperson Vincent Dulesky responded via email, “All allegations are investigated and handled on a case-by-case basis.”
In the complaint filed by the unidentified black mother, whose name was redacted, she also worried that her 15-year-old son may appear as an adult and, therefore, more threatening to Border Patrol agents. Her fear was noted as being legitimate.
The American Psychological Association and academic researchers found that law enforcement officers often perceive young African-American boys to be much older and less innocent than their white counterparts.
Haywood watches her daughter get ready to leave town
Just like the unidentified Black mother, Haywood too was worried after receiving a phone call in April 2018 from her oldest daughter, Takoya, 20, who explained she and her two cousins, one of whom was underage, had just been stopped for about 25 minutes at the Arivaca Road checkpoint.
“They were handled unethically. They were intimidated and humiliated. They were told they looked suspect and that they did not look like U.S. citizens. When my daughter asked to call me, the phone was snatched from her,” Haywood says.
Border Patrol practices, such as taking cellphones, that usually take place at international ports of entry appeared to be spreading to the 100-mile zone.
At the international border, there are no constitutional or civil rights.
Ripped seat cover in Haywood’s car.
“You can force somebody to strip search without probable cause in the border region. You can detain and question them. You can examine bags without probable cause or reasonable suspicion,” says Kevin Johnson, dean of the UC Davis School of Law.
He adds, “There is a border exception that the Supreme Court has upheld time and time again that allows intrusion at borders. Governmental power is the greatest at the border; individual rights are the lowest at the border.”
But Takoya and her cousins were within 100 miles of the Arizona-Sonora border, not at any of the closest ports of entry, such as the ones in Sasabe or Nogales.
Johnson believes there is a reason this erosion of civil and constitutional rights at the border have extended within the 100-mile zone.
“Some would say the way it happens is you allow one exception at the border. Then someone says, ‘What about people who sneak around to get in? How do we stop them from violating the law?’ That’s how you end up with the 100-mile zone,” he explains. “At this point, the courts, Congress and the president have said – ‘You have rights, but in the 100-mile zone you don’t have many.’”
At least one Arivaca resident witnessed the checkpoint stop. Woodshop instructor Tommy Haynes (from Part I) happened to be driving through the checkpoint that day.
The girls had been on their way to Sahuarita to take pictures of Takoya’s 17-year-old sister Alejah, who was celebrating her prom in a community called Rancho.
“Where are you going? Where do you live?” The agent who stopped the young women asked.
“The only town down here,” Takoya responded. Sahuarita was about a 20-minute drive on the I-19 from Arivaca Junction.
Seemingly growing angry when Takoya didn’t specify her address, the agent asked Takoya and her cousins, Jayde and Cerena Blaylark, to exit the vehicle.
When she realized what was about to happen, Takoya asked, “Why do you want to search the car?”
“Dogs can search for things like drugs,” the agent replied.
Separated from her cousins within the secondary inspection area, Takoya attempted to call her mother.
One of the agents took her phone. “You can’t use the phone,” he said.
“I’m trying to call the owner of the car,” she told him.
The agent replied, “You could have someone hiding in the bushes. You could call them, and they may come out and attack me.”
Nothing was found during the search.
After receiving her phone back, Takoya took the opportunity to call her mother from the car.
“We were cruising,” Takoya adds. “No one in the car smoked. We were three girls having fun.”
The next day, a livid Haywood contacted Border Patrol and spoke with a supervisor about the incident. She also complained Border Patrol canines damaged her car during the search.
Haywood sent in photos of dog scratches on her vehicle and a ripped seat cover, but she says she couldn’t prove to Border Patrol that it was their dog who damaged her car.
The supervisor told Haywood that surveillance footage didn’t support her statements and that it looked like agents were following proper procedure.
Since the checkpoint stop, Haywood says she now reminds her daughters of their rights before they leave home.
Haywood’s husband and Takoya’s step-father, James Canty, says he has never been stopped when driving alone.
“I’m white. I don’t have many issues, which shows being Black brings more stops. When I’m alone, it doesn’t happen,” he adds.
Canty was not only commenting about the treatment that his step-daughter and nieces experienced, but also his wife.
Vehicle Stops in the Desert
As Haywood pulled to the side of a road near Three Points, she told her mom, “They are getting ready to harass me again.”
“No, they aren’t,” Janice Haywood said and tried to calm down her daughter as the agent approached her vehicle.
Haywood says she has been stopped by Border Patrol agents three times over the course of 2018. One time at the Arivaca Road checkpoint and twice when she was with her mom driving near other border towns.
The agent asked her, “Why are you coming this way?”
He was referring to the fact she took a less common route.
She replied, “This is the way I know, and it’s faster.”
“They’re trying to figure out if you have a destination in mind or if you entered unlawfully and don’t know where you’re going,” states Johnson. “They’re waiting to hear what language you speak or if you have an accent. They’re trying to discern all kinds of things from what some think is innocuous and what others would think is an intrusive question.”
Haywood got angry about being questioned and admitted to being “a smart ass.”
“I’m tired of you people,” she told the agent.
“What do you mean you people?” The agent asked.
“You all look alike,” she said referring to all Border Patrol agents.
During another incident near Tombstone, Haywood says she was followed for 45 minutes before an agent pulled her over in a desolate mountainous area.
“If my mom wasn’t with me, I wouldn’t have stopped,” she says.
Haywood didn’t want to be alone with a federal officer who had more power over her in an isolated location, something that happened to another woman driving near the southern border.
In a 2012 complaint sent to Border Patrol, a woman driving with her 4-year-old daughter from Arizona to California described a similar incident.
The agents, the unknown woman explained, followed her for 30 minutes down I-10. At the time, the interstate was dark and deserted.
Not able to make out the vehicle at first, the woman grew frightened and called her husband.
It wasn’t until the vehicle was “barely a 2 car length” away when she realized it was Border Patrol.
After following her for nine miles, the woman stated Border Patrol agents turned on their lights and pulled her over.
The agents searched her vehicle and asked “intimidating questions.”
One of the agents accused her of being nervous and allegedly said, “Only criminals and people trying to hide things get nervous.”
In her response, the woman wrote “I replied I was nervous considering he had been trailing me since the rest stop in Arizona, then had waited to pull me over in the middle of nowhere after crossing into California, when he could have done this back at the Border Station where it was lit and occupied by other individuals.”
The woman stated that she and her daughter suffered emotionally from the incident. She jumped at shadows as she drove toward her destination; her daughter had nightmares that night about the incident.
She felt “victimized under the color of the law due to his actions and illegal search of my personal property.”
Of the 154 complaint cases examined, 10 show incidents where drivers stated they were followed for miles before they were stopped.
“In law enforcement, it is sometimes necessary to follow suspects for a short time, but it is not ‘procedure.’ Every situation is unique, and there is no steadfast rule for following someone,” says Chris Montoya, a retired Border Patrol agent. “However, when the lights and sirens come on, that is when the fourth amendment kicks in.”
But for the unidentified woman, she didn’t receive any fourth amendment protections.
Complaints also show that Border Patrol pulled over 25 people on roads or highways. Other incidents either took place at checkpoints, or the stop location was unknown or redacted from the records.
In the complaint from the unidentified woman, she added, “I am trying to be hopeful that I was not profiled and that it would not happen again.”
U.S. citizens driving far from the southern border also fear racial profiling and being stopped by law enforcement because of another Supreme Court decision.
African-American and Latino Experiences in Urban Areas
In 1968, Supreme Court justices in Terry v. Ohio stated, “…a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person ‘may be armed and presently dangerous.’”
A data analysis by the New York ACLU found that “innocent New Yorkers have been subjected to police stops and street interrogations more than 5 million times since 2002, and that black and Latino communities continue to be the overwhelming target of these tactics.”
The New York ACLU reported added, “Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent.”
“I think racial profiling and law enforcement abuse in the cities is very similar to that at the border and border region. I will use my hometown Los Angeles as an example. Racial profiling is viewed as a civil rights issue that should be changed. We shouldn’t have profiling, and we shouldn’t have baseless police killings. We view that as an important civil rights concern,” says Johnson.
“I think we have a long way to go in improving the African American and Latino experience in our nation’s cities,” he adds.
Many Blacks and Hispanics share common experiences with law enforcement, yet Johnson says they often don’t work together to defeat racial profiling practices.
“There are similar worries about a white power structure using race to punish people of color. The truth is it appears that more often than not African American groups are fighting for their rights in the city. Immigrants rights groups are fighting for their rights along the border. Maybe they could work together and try to more radically remove race from ordinary law and immigration enforcement,” Johnson explains.
This is noted as not being a coincidence.
In the book No One is Illegal, Justin Akers Chacon and Mike Davis described a unified ruling elite who historically devised many strategies to divide and conquer immigrants and minorities who competed for employment. These groups, the authors explained, were also divided by race, culture and language.
The ruling elites sought to keep their power, so they purposely prevented immigrants and minorities from collectively unionizing, according to Akers Chacon and Davis.
Divisions were also sowed among immigrants and minorities, and the overall U.S. population, through unfair media depictions.
RELATED: Racial Profiling Timeline
Act II: Racial Issues in the Borderlands & Urban Areas
The Complexities of Identity in the 100-Mile Zone
Because of unbalanced media depictions, anti-immigrant political commentary, such as President Donald Trump’s “Build the wall” chant, and legalized racial profiling, people living within the 100-mile southern border zone have specific beliefs about who is profiled.
Near the U.S.-Mexico border, many people primarily believe mostly Hispanic immigrants are profiled. But there is more to it than that.
“Routine immigration check” is what an agent told Haywood during one of the times she was stopped by Border Patrol.
“You would think that by me being African American it would be obvious that I’m not Hispanic,” she adds.
But Hispanics can be Black too. Many Latin American countries include large Black populations. Many of them descend from slaves.
According to Henry Louis Gates Jr. in his book Black in Latin America, “Between 1502 and 1866, 11.2 million Africans survived the Middle Passage and landed as slaves in the New World. About 450,000 of these Africans arrived in the United States. About 4.8 million went to Brazil alone.”
The rest went to other countries throughout the Caribbean and South America, Gates explained.
Hispanics or Latinos represent different races and nationalities, according to the U.S. Office of Management and Budget.
The U.S. Census Bureau provided a breakdown of how an estimated 58.8 million Hispanics define their race:
- White alone: 38,222,255
- Some other race alone: 15,719,042
- Two or more races: 2,782,900
- Black alone: 1,263,898
- American Indian and Alaska Native alone: 581,116
- Asian alone: 215,482
- Native Hawaiian and Other Pacific Islander alone: 61,441
Most mainstream media depict indigenous Hispanics who often have darker features.
In the book “Covering Immigration” Leo Chavez demonstrated that alarmist magazine covers, starting from the 1970s, painted Hispanics negatively and contributed to how Americans perceived them. Many of these covers showed stereotypical dark-haired, browned skinned illustrations of Hispanics with text calling them “illegals” and “invaders” who want to “take Americans jobs.”
These headlines often ignored that millions of Hispanics are Americans too.
After 9/11, Border Patrol’s parent agency, the Department of Homeland Security was established. Under DHS, the number of U.S. Border Patrol agents grew rapidly within 10 years, from nearly 10,000 in 2001 to nearly 22,000 by 2011, CBP figures show.
This expanded number of federal agents adhered to United States v. Brignoni-Ponce, the 1975 Supreme Court decision allowing “Mexican appearance” to be a “relevant factor” in Border Patrol stops.
But as the U.S. Census shows, race is much more complicated than appearance.
And after Arizona SB 1070, the controversial show me your papers law, was passed in 2010, many young Latino Americans grew up believing they were “under siege,” even though they had every right to be in their own country, according to NBC News.
Narratives similar to Haywood’s were shared in checkpoint complaints, further illustrating the complexities of identity in the Arizona borderlands.
In one such complaint, a man wrote, “Clearly my wife, four kids and self are Caucasian… But to be harassed was unacceptable and being spoken to like that was unwarranted! I was born and raised in the United States of America. I believe my skin was paler than the man in question.”
In a $2 million personal injury claim for damage, injury or death, the report included “is not Hispanic, does not look Hispanic and does not even speak Spanish.”
But what does Hispanic look and sound like?
These people aren’t necessarily wrong that Hispanics get stopped a lot as a 1994 study by University of Arizona professor Raquel Rubio-Goldsmith illustrated, but what they often get wrong is that not all Hispanics have brown skin, dark hair and dark eyes. Additionally, non-Hispanics have been stopped as well.
“I know because we did a study in South Tucson. Young women, sometimes with blonde hair, would be stopped by the Border Patrol. They would be like ‘Why are they stopping me? I don’t look quote Mexican.’ But anybody who looked Mexican they stopped a lot more,” Rubio-Goldsmith explains.
She adds, “There is this confusion on the color line. When do you pass? When do you not pass? People who think they can pass, a lot of them think it’s not really a problem – if people had their papers they wouldn’t be stopped. Then they find out sometimes at the border, it doesn’t matter if you have the right papers or if you’re Mexican or how you look, you get mistreated.”
Racialized Enforcement Near the Border
The ACLU of Arizona found that “between 2006 and 2007 Native Americans were searched by law enforcement over three times as often as whites, and that African-Americans and Hispanics were searched over two and one-half times as often as whites.”
“I think there is fairly strong evidence that immigration enforcement along the border is racialized, and the focus is on Latinos,” Johnson says.
In two separate incidents, Border Patrol agents shot and killed two unarmed Hispanic U.S. citizens, Carlos LaMadrid in 2011 and Jose Luis Arambula in 2014. Both were fleeing, with their backs turned, when they were gunned down.
“Jose Luis Arambula was a U.S. citizen running away from 300 pounds of pot he ditched in a car around the Sahuarita/Green Valley area, and the Border Patrol ran after him and executed him. The county attorney didn’t even call for a probable cause determination process whatsoever,” says Isabel Garcia, an attorney and co-chair for the Tucson-based grassroots organization Coalition of the Human Rights.
Native Americans have also been affected by border enforcement.
“Bennett Patricio was killed, and he was first American,” Garcia adds. “It’s really clear that all of our rights are at stake when we begin to minimize the rights of others. Our lesson at the border is the closer you are to the border, the less rights you have.”
The reason is unknown, but Patricio was lying in the middle of a road, dressed in dark clothing when a Border Patrol agent ran him over with his vehicle in 2002, the Arizona Daily Star reported.
In urban areas, interactions between police officers and citizens have also turned deadly.
Haywood chats with a visitor at her RV Park
Racial Disparities in Urban Areas
In cases where police officers shot citizens, convictions were rare.
Researcher Philip Stinson, a criminal justice professor at Bowling Green State University, found that out of 80 officers arrested for “murder or manslaughter charges for on-duty shootings” 35 percent were convicted from 2005 to 2017.
“People who are seen as law enforcement officers, people are more likely to believe anything they say before they believe the other side,” says Rubio-Goldsmith. “We have seen that with Black Lives Matter as well. We have this impunity for law enforcement. In the heads of people, it’s like…‘Well if it’s a person of color, the policeman must be right.’ That’s how racism enters this and the racial profiling.”
She adds, “On the border…The Supreme Court said it’s acceptable because of national security.”
The U.S. Supreme Court decisions Brignoni-Ponce and Terry v. Ohio, or Stop and Frisk, have much in common.
Many Border Patrol agents adhere to Brignoni-Ponce in a particular way within the 100-mile zone.
“The Border Patrol interprets the statute as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe that the occupants are aliens or that other aliens may be concealed in the vehicle” according to Find Law.
Currently, “a little more than 50 percent of the Border Patrol” are Latinos, according to 2016 data acquired by the Los Angeles Times.
Because of this, retired Border Patrol agent Christopher Montoya disagrees with allegations he’s heard that directly or indirectly accuses Border Patrol of racism.
Agents Enforcing the Border
“The majority are Hispanic agents. It’s the sense of superiority complex over indigenous people from Mexico,” Montoya says. “I never thought of it as a racist organization. It embodies the ideals of America,” he explains.
Montoya also says that Hispanics are in many leadership positions within Border Patrol.
For UC Davis School of Law professor Johnson, an agent’s race or ethnicity doesn’t seem to matter in the grand scheme of things.
“I think race is deeply engrained in their whole system of stopping people,” he explains. “If you are a European tourist driving around Tombstone, you’re going to be treated differently than if you were a Mexican-American lawful resident or citizen. One of them is more likely to be stopped than the other. That suggests that something else is at work, including the use of race in deciding to stop people in racial profiling.”
In situations where it’s an officer of color stopping a citizen of color, those who are stopped may have different expectations and reactions.
When Takoya Haywood was stopped at the Arivaca Road checkpoint, she noticed one of the agents was African American.
She expected racial solidarity.
Instead, he told her “It’s protocol.”
“I expected the black guy to help out. Instead, he stood there eating a lollipop,” Takoya says.
On the other hand, research of minority officers patrolling neighborhoods in urban areas showed that “…citizens who were stopped by minority officers’ express higher beliefs that they were stopped for illegitimate reasons (19%), and they do so at a significantly higher rate than citizens stopped by White officers (12%). “
The study also noted the findings “potentially contradicts the idea that diversifying police organizations will automatically improve racial minorities’ evaluations of the police.”
Evaluations of Border Patrol from U.S. citizens hasn’t improved.
According to Montoya, people see police officers and agents differently. He adds that many look at cops with respect, even though they’re not perfect, but many regard Border Patrol with hatred.
He understands why. Academic researchers found that “10 percent of migrants report some form of physical abuse during their last apprehension and one in five report verbal abuse,” which they considered problematic because Border Patrol apprehended more than 300,000 migrants each year during the heaviest migration period in the Tucson Sector from 2000 to 2008, as CBP figures show.
Montoya says he has seen instances of verbal and physical abuse on the job.
“It’s there. I’ve seen it,” he states. “Agents will see things, but they won’t report it.”
“Because you’re a coward; you got a mortgage to pay; you have to work with the other agent every day,” he explains. “It’s a real human moment. People will condemn you. But it’s a real human moment when you’re confronted with if you should report it. Few have the courage to say it was wrong.”
But Montoya is now publicly addressing issues within Border Patrol. He also believes racial profiling shouldn’t be part of law enforcement practices.
But currently, issues involving race and law enforcement continue to be a problem not only in Arizona but the overall U.S.
Inside and Outside of the Border Region
One thing Ebony Haywood has found is that “Racial tension is everywhere. It doesn’t matter where you go.”
When she lived in Gilbert, one neighbor told her that she didn’t belong in the predominately white community.
She finds locals in Arivaca to be much friendlier.
“If your car breaks down, Border Patrol won’t stop to help. You’ll most likely get help from the town’s residents,” she explains.
Despite her issues with Border Patrol, Haywood believes there are good and bad agents.
For the longest time, she tried befriending agents, but eventually, she found this to be futile.
She noticed agents at the Arivaca Road checkpoint were switched out every few months.
Because many of the agents don’t know the locals, Haywood believes this contributes to “harassing residents.”
She had to start all over again with a new agent each time one arrived in Arivaca Junction.
Agents have told her, “I have never seen you before.”
She replied, “I have never seen you before either.”
MAN’S BEST FRIEND
FOR THE LAST YEAR, Nellie Jo David hasn’t been able to focus on writing her doctoral dissertation.
Trauma related to an earlier sexual assault and experiences at Border Patrol checkpoints has consumed the University of Arizona PhD student.
She repressed the sexual assault for years and suffered from post-traumatic-stress disorder. She now sees a therapist. But the Ajo, Ariz., native says she can’t go to her hometown without going through a checkpoint.
David says she has experienced “microaggressions at checkpoints.” Border Patrol agents have also pulled her over several times. She lost count of how many encounters she had with agents on desert roads.
“It’s a battle. I find myself speaking [more] properly at checkpoints because I don’t want a hassle,” she says. “The darker your skin, the worse you’re treated.”
Her belief that Border Patrol is racially profiling her isn’t the only thing causing David “fear and anxiety.”
“Seeing canines [at checkpoints] is a trigger for me,” David explains. “I love dogs, but seeing them used against me is fearful. It’s intimidation. They’re barking. Where are the lines? Will they attack you?”
Border Patrols agents’ usage of canines is the subject of a portion of the 154 complaints examined for this three-part 14-month investigative reporting project.
Arizona borderlands residents said agents used canines against them at checkpoints. Although the complaints aren’t representative of all Arizona checkpoint complaints, they do show residents alleging that dogs were used to intimidate; part of racial profiling practices; and to stop them and damage their property.
Border Patrol agents argue that checkpoints are needed to intercept drugs coming across the southern border, but a 2017 report from the U.S. Government Accountability Office showed that drugs primarily come through the ports of entry.
Paul Beeson, an official with U.S. Customs and Border Protection, repeated this fact.
In a written testimony for the U.S. government, Beeson wrote, “The Southwest land border [ports of entry] are the major points of entry for illegal drugs, where smugglers use a wide variety of tactics and techniques for concealing drugs.”
He added, “CBP officers regularly find drugs ingested, concealed in body cavities, taped to bodies (body carriers), hidden inside vehicle seat cushions, gas tanks, dash boards, tires, packaged food, household and hygiene products, in checked luggage, and concealed in construction materials on commercial trucks.”
The Washington Post also investigated how drugs get into the United States. After doing a content analysis of CBP press releases from Nov. 1, 2018 to Jan. 27, 2019, analyst and reporter Philip Bump found that “Of the 120 seizures included in those releases, 82 occurred at ports of entry.”
Deterring drugs from entering the country is a priority for Border Patrol agents, but U.S. citizens like David are often caught in the middle of border enforcement practices that extend beyond Arizona’s international ports of entry.
Act I: Canine Handler Caution
Distrust of Dog Handlers
Growing up in a border town like Ajo, David noticed that her Tohono O’odham mother was treated differently than her white father.
People treated her mother rudely in stores, she noticed.
Additionally, because she is mixed race, people assumed her father “wasn’t part of the family.”
When she wasn’t in Ajo, she spent a lot of time on the Tohono O’odham reservation, which is a 10-minute drive away.
Her ties to the reservation are strong: Family, friends and land.
That’s why highlighting what goes on at the reservation has always been of great importance to her.
In May 2015, David and her friends were traveling within the reservation’s Gu Vo District, one of the Tohono O’odham’s 11 districts.
They were meeting with a well-known activist, Ofelia Rivas, to discuss border issues.
Coincidentally, an undercover Border Patrol agent pulled the vehicle over that spring day.
“He told us we didn’t have the right to be there,” David says.
David refused when the agent asked to search her vehicle. The 2014 Michigan State University law school graduate told the agent he had “no probable cause.”
Seemingly ignoring her, the agent guided his dog around the car.
“When [the agent] got near the trunk, ‘He said a command’” to the dog in a language David didn’t recognize.
All she knew was that the dog started barking “like crazy.”
The agent informed David and her friends that the dog alerted on her vehicle.
“They do that all the time – ‘alert.’ There is no way that’s legal to have a false alert,” David says.
After the agent reported the alert, seven Border Patrol agents arrived at the scene. That’s when David hit the record button on her phone.
“Harassment in the Gu Vo District is the worst,” David explains.
Even though she was interning with the American Civil Liberties Union at the time, David says she decided not to move forward with the complaint. But she did make sure to post the video on social media.
There was also growing concern about Border Patrol’s use of canines elsewhere in southern Arizona.
Deploying Dogs at Checkpoints
As part of a FOIA request that University of Arizona law professor Derek Bambauer filed to secure Border Patrol records, some of which he shared for this investigation, he negotiated for records on Border Patrol’s use of canines.
“Canines false positive alerts are too high,” he explains. “[Border Patrol] didn’t want to give us anything.”
But a compromise was reached. Bambauer was able to get records on 15 percent of the 120 dogs in Border Patrol’s service.
As for the checkpoint complaints Bambauer shared for this reporting project, records showed that canines were deployed in 47 out of 154 cases for a variety of reasons.
There are 11 cases where people accused canines of damaging their property.
In some of the complaint records, drivers believed agents intentionally brought muddy dogs into their cars to dirty their interiors and leave scratches.
Additionally, Bambauer believes racial profiling is intentionally underreported in the records. Two records indicated that drivers believed canines were used to racially profile and stop them.
In a complaint, an upset father who stated he’s a retired K9 handler wrote, “My 19 yr. old daughter travels now for a job from Saint David to Sierra Vista the ‘back way’ through Tombstone. She has had two consecutive searches of her vehicle after two consecutive trips. The Canine supposedly alerted on her trunk area and her car was emptied, searched and all cleared. She had to ask for her license back AFTER she had to place all her belongings back into her vehicle! Ok, one time, I can accept; good Job!
“Now today, no dog, she approaches after the two previous cars are waived through and she is immediately asked to open her trunk, THEN they call the same K9 with a DIFFERENT handler. Again, nothing! Now two out of two; we are PROFILING! She continued and saw the next two cars waived through quickly with no hesitation. I am a retired Graham County Deputy/San Carlos PD K9 handler; 1998-2002. This dog is false alerting, tired and having two different handlers is contrary to canine narcotic training…”
The retired K9 handler added, “How can I ensure her this is not going to happen everyday? She is petite, nervous and Hispanic. She is adopted from a bad CPS experience and the police have not been her favorites until she was into foster care/adoption. How can I assure her she is not being profiled and singled out when every bit of evidence points in that direction?”
Another record featured a U.S. citizen explicitly telling the agent who pulled him over that he believed a canine was being used to stop him as part of the agency’s racial profiling process.
He said that his “white-complexioned, green-eyed” wife has never been pulled over in her lifetime while he and his, presumably darker skinned, children had been stopped several times.
The citizen ended the complaint with this statement: “I believe in border security and I support Border and Custom agents. I do not support unethical behavior and Hispanic profiling.”
In Arivaca, a border town where residents have monitored Border Patrol agents’ actions at checkpoints, there is widespread belief that “dogs are used as a means to stop people,” according to resident Peter Ragan.
“There’s no documentation. No videos. It’s up to the agent. They have the ability to make them up. If [dogs] do alert, they’re not accurate. They should keep documentation,” Ragan says.
Good canine training solves issues with false alerts, according to Evan MacLean, director of the Arizona Canine Cognition Center.
He adds that issues do arise when dogs are concerned with “getting rewarded with treats” for finding smells. This could inadvertently lead to dogs false alerting, he explains.
Despite many U.S. citizens’ lack of trust in Border Patrol canines and their handlers, dogs have often been trusted by security officials.
History of Canine Usage in Law Enforcement
History shows that canines have been used by law enforcement for centuries.
The practice of using canines in law enforcement came to America permanently in the 1950s. Dogs were used to detect burglars in department stores.
Dog training for defense and law enforcement varies, says MacLean.
But most often, he explains, dogs are trained to attack in playful scenarios, where the act of biting someone is seen as a game. The hope of the trainer is usually that the dog will carry out this training in operational environments, MacLean adds.
While enforcing discriminatory laws that prevented African Americans from voting, the Alabama police directed dogs to maim protestors during Bloody Sunday on March 7, 1965.
These peaceful protestors were also teargassed and billy-clubbed by police officers.
This incident and a series of other events led to President Lyndon B. Johnson signing the Voting Rights Act of 1965.
While this act protected voting rights and made it illegal to discriminate based on color, discrimination didn’t instantly disappear once the U.S. Civil Rights Movement ended.
“In this struggle for equality, communities of color are very conscious of unequal treatment before the law and that it has to change. In the constitution, we have a right to be treated the same way,” says Raquel Rubio-Goldsmith, a Mexican American Studies lecturer at the University of Arizona.
Additionally, “the basic right to be free from unequal treatment” is standard in many federal and state civil rights laws. But David doesn’t believe this is completely true in Ajo. She says Ajo has a long history of segregation as well as other issues.
Act II: “Chaos” and “Harassment” in Ajo
“The Step-Child” Border Patrol Sector
A checkpoint was established in Ajo between 2007 and 2008, David remembers.
“This is when the harassment started,” she says.
She often went through the Ajo-Gila Bend Highway checkpoint. Border Patrol agents, she says, eyed her with suspicion during day-to-day interactions.
Nearly every time, agents asked David many questions, and she “told her life story” to agents just to visit her parents.
David began finding it difficult to remain calm at checkpoints.
In 2010, she left Arizona and moved to New Mexico. The following year, she went to law school in Michigan.
“It was hard leaving home. I love everything about the desert,” she says.
Though she no longer lives there, David has primarily spent most of her life in Ajo.
This is the same Arizona border town that Yuma Sector Border Patrol Agent Vincent Dulesky described as “chaotic” when he was stationed there in 2007.
“When I arrived to Ajo there was nothing but a screen fence near the Lukeville Port of Entry and a barbed wire fence everywhere else,” Dulesky explained in a written statement for this reporting project.
Dulesky added, “We were getting overran with drive-thrus on a nightly basis. A sturdier fence and ballards were later installed which converted the drive thrus to foot traffic,” Dulesky explained in a written statement for this reporting project. “The mountains combined with the hot weather made for very miserable days tracking groups.”
The Ajo Border Station is located nine miles south of Ajo in Why, Ariz., and is included as part of the 262-square mile Tucson Sector, which “covers most of the state of Arizona from the New Mexico state line to the Yuma County line,” according to the U.S. Customs and Border Protection website.
In 2007, CBP apprehension figures for the Tucson Sector showed that nearly 380,000 migrants were apprehended by Border Patrol agents. By 2018, border crossings had gone down considerably, and 52,000 migrants were apprehended that year.
“Our primary job is immigration. That is our bread and butter,” says Jose Garibay, another Border Patrol agent stationed in Yuma Sector.
The high number of border crossings in 2007 coincided with the installation of the Ajo checkpoint and Dulesky’s assignment in Ajo. No apprehension data for Ajo specifically was available from CBP.
Increased enforcement activity in Ajo could help explain why Ajo Station began to develop a bad reputation among Border Patrol agents stationed elsewhere.
“Anecdotally, Ajo Station gets more checkpoint complaints,” says Christopher Montoya, a retired Border Patrol agent. “Ajo is the step-child sector and can do what they want.”
He says, “Journeymen and management perform the job in a way that might not be up to standards.”
But no one can be completely sure about what goes on at Ajo Station.
“Border Patrol is cloaked in secrecy,” Montoya adds. “Agents are public servants. We have to be held accountable.”
Rubio-Goldsmith believes that Border Patrol should have review boards.
“Police departments have review boards. The city council is responsible. There is accountability. There is no accountability in Border Patrol,” she says. “If a Border Patrol agent mistreats you and you put in a complaint, you never get a response.”
But many Arizona residents believe that Border Patrol seems more responsive when it comes to their goal of intercepting drugs at checkpoints within the 100-mile zone.
Act III: Border Town Perspectives on the Drug War
Border Patrol Agent Vincent Dulesky
Drug Enforcement in Arivaca
Border Patrol has been clear about why it operates checkpoints in the United States, north of the international border.
“It’s legal to operate checkpoints. It’s the way to interdict drugs,” says Garibay.
In a written statement for this reporting project, Dulesky wrote, “Checkpoints provide a defense against well disguised smuggling operations. The dilemma remains how can one filter out the criminal element from the protected interest of the private citizen?”
A 2017 GAO report indicated that “…1 ounce or less of marijuana” was “seized from U.S. citizens” in “12,214 out of 30,449 seizures” at various checkpoints in the country.
This data aligns with figures found in some of the checkpoint complaint files examined for this investigation.
Agents found legal drugs, such as prescriptions, as noted in three complaints. In another three complaints, agents found small amounts of marijuana.
In a 2013 checkpoint complaint, a “college graduate with honors” stated, “I was detained and arrested for under 2 grams of marijuana. Yes, I made a poor choice, but how is my minor infraction in the state of California, a class one misdemeanor in the state of Arizona, somehow worse than denying a citizen their constitutional right?”
The student added, “I must pay a ridiculous fine for something I have a doctor’s recommendation for.”
Borderlands residents in Arivaca have varying perspectives about the Border Patrol strategy of keeping checkpoints open for drug enforcement.
In Arivaca, ranchers work cooperatively with each other and Border Patrol due to “threats from cartels,” according to Mary Kasulaitis, a rancher and former librarian in the town.
“Ranchers can’t stay in ranch houses because cartels may kidnap them,” Kasulaitis adds. “We have a liaison office. If there is trouble, we’ll call [Border Patrol].”
Border Patrol regularly meets with ranchers and informs them of any drug-related happenings, according to Kasulaitis.
Kasulaitis also informs Border Patrol agents about drug offenses she has witnessed.
About four years ago, she called agents out to her property after she says drug smugglers came through her property.
She says the smugglers broke the lock on her fence, left all but one brick of drugs near her home, which was found by a canine, and dropped additional drugs on her neighbor’s property using an “ultra-light airplane.”
While Kasulaitis has a good relationship with Border Patrol agents, Peter Ragan’s involved what he believes to be constitutional and civil rights violations.
He has been sent to secondary inspection twice for citizenship and canine alerts that he believes to be false alerts.
“Despite what politicians and Border Patrol say, there is not a lot of crime. We don’t see cartels. There is this perception by Border Patrol that we’re the problem because we live south of the line of the checkpoint,” Ragan says.
The town’s reputation seems to affect how Border Patrol agents treat residents, he explains.
Ragan adds, “Many border towns have reputations for being drug-smuggling places. Not to say it doesn’t happen, but it’s the same all over Arizona and the country. It’s not unique to [Arivaca]. There is extra scrutiny rather you’re a U.S. citizen or not.”
In another southern Arizona border community, other residents too had varying perspectives on Border Patrol’s drug enforcement and security strategies.
Drug Enforcement on Tribal Land
Tohono O’odham tribal members disagree over the presence of Border Patrol agents and the agency’s decision to install surveillance towers to keep an eye on their reservation.
“We live in the midst of a drug war. Migrants are led by coyotes. People who live in remote areas homes were broken into,” David says. “Some see migrants as invaders, and the Border Patrol makes them feel protected.”
The tribe’s council approved the installation of Elbit Systems surveillance towers while many like David believe that “putting up metal eyesores” will be like “raping the earth.”
“We’re trying to show the impact on sovereignty, lives and rights. These cameras will face homes,” David says. “On the reservation, people don’t have constitutional rights because we live within 100 miles of the border. They use this to justify border security.”
What also makes the situation complicated is the fact that Border Patrol and the tribe’s council often work together for security purposes, according to David.
These joint activities are funded by a grant from Federal Emergency Management Agency (FEMA) called Operation Stonegarden. The U.S. Department of Homeland Security is the parent agency of FEMA and Border Patrol.
In his written statement for this investigative report, Dulesky stated, “Each Border Patrol Sector has a dedicated liaison that works directly with their local tribes and work out solutions that are amenable to both parties to look further.”
David says she has seen these liaisons at District meetings on the reservation.
She says Border Patrol generally opens the meetings discussing “the amount of drugs seized on the reservation” and by “painting everyone as criminals.”
A PhD candidate, David has focused her dissertation on how Border Patrol affects the Tohono O’odham people.
She indicated that her trust in law enforcement faded years ago back when she was an undergraduate living in Phoenix.
David grew up going to visit her grandparents every summer in Phoenix. Eventually, she went to Mesa Community College and Arizona State University.
While in the area, she saw checkpoints in Guadalupe, Ariz., which she says were enforced by Maricopa County’s former sheriff, Joe Arpaio.
“These checkpoints affected the Yaqui community,” David says. “They weren’t harassing people in Scottsdale.”
During his tenure, Arpaio and his office didn’t investigate numerous sex abuse cases, and Arpaio admitted it, according to the Phoenix New Times.
A representative publicly stated, “The Sheriff’s Office and the sheriff have accepted responsibility.”
Arpaio was also convicted of misconduct and racial profiling practices as part of a class-action lawsuit, Ortega Melendres, et al. v. Arpaio, et al. ACLU, filed in 2007.
According to the ACLU, “U.S. District Judge G. Murray Snow issued a sweeping decision finding that that Arpaio and his agency had relied on racial profiling and illegal detentions to target Latinos.”
In August 2017, President Donald Trump pardoned Arpaio, describing the former sheriff as “an American patriot” in a tweet. Trump also claimed Arpaio “kept Arizona safe,” according to the New York Times.
David doesn’t agree.
Arpaio’s actions are forever etched in David’s mind.
Around the time she bore witness to these events in Maricopa County and faced her own experiences at checkpoints, she had been given a roofie and sexually assaulted as an undergraduate in college.
She didn’t report the sexual assault because of Arpaio.
“If I didn’t feel the cops would do something as a privileged U.S. citizen, how would a migrant feel?” David says.
Like the Border Patrol agents who pulled her over several times, often questioned her and committed micro-aggressions against her over the years, David saw Arpaio as yet another law enforcement official whose power had gone unchecked.
Other projects related to the Arizona-Mexico border
Short documentary: Humanitarian aid volunteers in southern Arizona clash with representatives of the U.S. government, including Border Patrol agents. Featuring No More Deaths and Tucson Samaritans volunteers who provide water and food to migrants in the deadly Arizona desert.
Photo story: Many see Arizona Border Recon as a militia group while they see themselves much differently. Are they a threat?
The University of Arizona School of Journalism
Celeste Gonzalez de Bustamante
RuthAnn Grumbling (cellphone images)
Cynthia Bresloff (Map visualizations)