What Language Was That You Were Speaking?

The question of how far to go in enforcement of United States immigration laws took a contentious new turn this week with the case of two women who were stopped by a Border Patrol agent after he heard them speaking Spanish.

The incident took place at a gas station in Havre, Montana, a small city about 30 miles from the U.S.-Canada border.

The agent stopped Ana Suda and Mimi Hernandez for half an hour or more to question them on possible violation of immigration law because, as he told them, speaking Spanish “is very unheard of up here.”

Havre is hardly a hotbed of illegal crossings. In 2017, the 183 agents in the Havre sector made 39 arrests — 0.01 percent of the 310,531 arrests made nationwide made by Border Patrol agents.

It is thought to be the first incident of someone being stopped and questioned for speaking Spanish, which is not a crime in Montana or any other state, as the agent himself acknowledged in the video.

Suda, intent on making it the last such case, went to the newspapers and the ACLU to complain that her civil liberties had been violated.

The ACLU took her side right away on Monday: “There’s citizens whose first language isn’t English or who are limited in English and that doesn’t mean they are committing an immigration offense,” said Astrid Dominguez, director of the ACLU’s Border Rights Center. “The constitution prohibits racially profiling. You need to have reasonable suspicion [of an offense before detaining someone] and speaking Spanish isn’t one of them.”

However much it seems like an open-and-shut case of linguistic, if not racial, profiling, the supposed illegality of the agent’s action may not be so clear.

Customs and Border Protection officials said they are reviewing the case. CBP spokesman Jason Givens pointed out that “although most Border Patrol work is conducted in the immediate border area, agents have broad law enforcement authorities and are not limited to a specific geography within the United States. They have the authority to question individuals, make arrests and take and consider evidence.”

Border Patrol agents are authorized by federal regulation to make warrantless stops within 100 miles of any U.S. border. Havre is well within that zone.

The “broad authority” granted to federal agents and other law enforcement personnel has come under discussion before this.

The Havre district Border Patrol is already embroiled in a lawsuit over stopping a Mexican couple for nearly 24 hours even though both had presented documentation of their right to be in the country. The couple claims false arrest and imprisonment, negligence and intentional infliction of emotional distress.

In 2015, the Montana Highway Patrol sought to put an end to litigation over unjustified stops, forbidding its troopers from detaining a person to verify status.

Merely speaking a foreign language within 100 miles of the border should not in itself justify being stopped for questioning. Otherwise, Border Patrol would have an effective carte blanche to interrogate people for other suspicious languages as well. In the Havre area, for example, several Native American languages are spoken and studied. Would it be acceptable to stop someone for speaking the Apsaalooke language of the Crow, the Cree of the Algonquin tribes or the Blackfoot tongue (which despite native origins probably sounds more foreign than Spanish)?

Nor are states on the borders with Canada and Mexico the only ones where this sort of thing can happen.

Federal agents are authorized to question anyone within 100 miles of a land or coastal border about their immigration status, based on “reasonable suspicion.” That covers Florida, New Jersey, Delaware, and Rhode Island, Washington D.C., New York City and Los Angeles.

The slippery slope could find the CBP stopping people for speaking any of the myriad languages heard in those areas. According to the U.S. Immigration Service website, “the most common household language after English” in North Dakota is German; in New York it’s Chinese; in Michigan it’s Arabic; in Nebraska, Oklahoma and Texas it’s Vietnamese; and in California, Hawaii and Nevada it’s Tagalog — which is the third most-spoken language in the U.S. after English and Spanish.

These are all languages about which a patrolman could say, it “is very unheard of up here,” and invite you to come with him to have a look at your I.D.

Indeed, it doesn’t take much to cross the line between legitimate, vigorous enforcement of the law and plain old-fashioned xenophobia.

Just last week a New York attorney was captured in a video threatening Spanish-speaking restaurant workers that he would call immigration authorities to have them “kicked out of my country.”

Of course, he’s not a federal authority. But there were incidents reported recently of Border agents getting on Greyhound buses and Amtrak trains in Florida and New York to question passengers about their citizenship status, provoking a furor on social media.

The question of how far to go — literally — was the subject of a bill to restrict the 100-mile zone to 25 miles along the northern border. Originally, 25 miles was defined as “a reasonable distance” by law, but was expanded to 100 in 1953. The bill passed the Senate but not the House in 2013.

If reintroduced in a future immigration bill, it could help to shrink if not solve the problem. At least, it would take Havre, Montana, out of the zone.