Fourth Amendment trumps immigration checks on Greyhound buses

Just over a week ago, the Greyhound bus company announced that it would no longer allow Border Patrol agents to conduct immigration searches on its buses without a warrant. Company officials long maintained that while they didn't agree with the searches, they were bound by federal law to allow them.

Civil rights groups and immigrant rights advocates have appealed to the bus company over the past couple of years, urging Greyhound to refuse to comply with these checks, citing the Fourth Amendment right in the U.S. Constitution protecting people from “unreasonable searches and seizures” without a proper warrant. After the Associated Press obtained a memo written by the U.S. Border Patrol's recently retired chief, confirming that bus companies like Greyhound are not required to consent to these checks, Greyhound announced that it would no longer allow the practice.

The American Civil Liberties Union has been among the groups that have applied pressure to Greyhound, with chapters in 10 states writing to the company in 2018 in an effort to get it to reverse the practice back then. In a recent email interview, David Loy, legal director for the American Civil Liberties Union of San Diego and Imperial Counties, and Eva Bitran, staff attorney in the advocacy department of the ACLU of Southern California, offered some background on this issue and their insight into why advocacy groups have opposed these checks. (This interview has been edited for length and clarity.)

Q:

What has been some of the history behind these immigration checks on buses?

Eva Bitran: We don't know precisely when the checks started, but reports of systematic, aggressive questioning of Greyhound passengers by CBP (U.S. Customs and Border Protection) agents date back to at least 2010. The basic story, which we've heard repeated throughout the border region, is that CBP officials board Greyhound buses without a warrant or a specific target in mind and subject customers to harassment and racial profiling, singling out riders based on the color of their skin, language they speak, or accent they have. (Reporter's note: Border Patrol has been reported as saying that agents do not profile passengers based on their appearance, and that they question all passengers during these searches.)

Q:

How and when did the ACLU first learn of these immigration bus checks? What were the concerns the ACLU had about these checks? And what was the ACLU'S response to those concerns?

Bitran: In early 2018, ACLU affiliates across the country started hearing reports of CBP presence on Greyhound buses, some of which gained national notoriety, as noted in our 2018 letter. These stories shared a familiar pattern . ... (and) These operations violate the constitutional rights of individuals detained without individualized reasonable suspicion. Because they take place on Greyhound's private property, we saw that Greyhound had an opportunity to protect its customers from racial profiling and harassment by CBP.

Our response was to draft a letter to Greyhound in 2018 — documenting several incidents in 2017 and 2018 along the southern and northern borders, and the coasts — asking it to exercise its own Fourth Amendment rights denying bus access to Border Patrol agents without a warrant. Greyhound initially declined to do so, and so we mounted a public campaign that included distributing KYR (Know Your Rights) material in bus stations and disseminating a petition that got over 200,000 signatures.

Lisa Deaderick talks with activists, experts and everyday people who have a passion for working on social justice issues to offer their insights and perspectives on issues making the news each week.

Q:

Why has this practice been something that civil rights and immigration advocates have disagreed with?

David Loy: We objected to CBP'S profiling and harassment because it violates the core constitutional rights against unlawful search and seizure and racial discrimination. The Constitution applies equally throughout the entire country. Like any law enforcement agency, CBP must adhere to the Constitution. Q:

What's the response to the Border Patrol's argument that the checks help prevent human trafficking, drugs and illegal immigration?

Loy: The Constitution is consistent with effective law enforcement. Law enforcement agencies have ample means to prevent and address illegal activity without violating the Constitution. Racial profiling and unlawful harassment undermine the community trust essential to effective law enforcement.

Q:

Who would you say has been most impacted by this practice, and why does that matter?

Loy: Everyone riding Greyhound buses has been impacted by CBP'S unlawful harassment, but those most impacted are persons of color and persons speaking languages other than English, or with accents assumed to be foreign. Such persons may be U.S. citizens or lawful residents, but even if they are not, they retain fundamental constitutional rights against racial profiling and unlawful search and seizure.

Q:

Why should people, whether they travel by bus or what their citizenship status may be, be concerned about these kinds of bus searches?

Loy: Everyone is at risk when anyone's constitutional rights are violated. Unless law enforcement is held accountable to its duty to adhere to the Constitution, the violation of one community's rights inevitably leads to violation of everyone's rights. History shows that abuses of power begin with marginalized and vulnerable communities, but they rarely stop there.