Profiling rules seen in the wings
Race, ethnicity still to be allowed in some official stops
WASHINGTON — President Barack Obama’s administration will soon issue new rules curtailing the use of profiling, but over the objection of civil-rights groups, federal agents will still be allowed to consider race and ethnicity when stopping people at airports, border crossings and immigration checkpoints, according to several government officials.
The new policy has been in the works for years and will replace decade-old rules that banned racial profiling for federal law enforcement, but with specific exemptions for national security and border investigations. Immigration enforcement has proved to be the most contentious aspect of the Obama administration’s revisions, and law enforcement officials succeeded in arguing that they should have more leeway in deciding whom to stop and question.
The new rules expand the definition of racial profiling to include religion, national origin, sex, sexual orientation and gender identity. Under the rules, law enforcement officials cannot consider any of those factors, along with race, during criminal investigations, or during routine immigration cases away from the border.
The rules will apply to local police assigned to federal task forces but not to local police agencies.
The rules also eliminate the broad exemption for taking into account those factors in cases involving national security, but FBI agents will still be allowed to map neighborhoods and use that data to recruit informants from specific ethnic groups.
The debate over racial profiling in immigration enforcement has delayed the release of the new rules for months.
U.S. Attorney General Eric Holder, who was leading the policy review, told colleagues that he believed that border agents did not need to consider race or ethnicity, officials said. But Department of Homeland Security officials argued that it was impractical to ignore ethnicity when it came to border enforcement.
“The immigration investigators have said, ‘We can’t do our job without taking ethnicity into account. We are very dependent on that,’” said one official briefed on the new rules. “They want to have the least amount of restrictions holding them back.”
Federal agents have jurisdiction to enforce immigration laws within 100 miles of the borders, including the coastlines, an area that includes roughly a third of the United States and nearly two-thirds of its population.
Federal agents board buses and Amtrak trains in upstate New York, questioning passengers about their citizenship and detaining people who cannot produce immigration papers. Border Patrol agents also run inland checkpoints looking for illegal aliens. Sen. Dick Durbin, D-Ill., has called the existing rules “a license to profile.”
Under the new rules, agents in those instances will still be allowed to consider race, national origin and other factors that would otherwise be off limits, according to several officials who spoke on condition of anonymity because they were not authorized to discuss the draft rules.
The administration will conduct a separate review into how agents conduct screening, border interdiction and inspections, the officials said.
The leeway in the rules reflected the fact that Border Patrol agents face challenges that FBI agents and drug investigators do not, one senior official said.
The rules will include new training requirements and will require federal agents to keep records on complaints they receive about profiling, several officials said.
The rules — both the current version and the revisions — offer more protection against discrimination than the Supreme Court has said the Constitution requires.
The court has said border agents may not conduct roving traffic stops simply because motorists appeared to be of Mexican descent, but agents at checkpoints may single out drivers for interviews “largely on the basis of apparent Mexican ancestry.” The court ruled that the government’s interest in protecting the border outweighed the minimal inconvenience to motorists.