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How immigration enforcement tempts cops into racial profiling

One day in May, construction worker Jose Adan Fugon was standing by the side of the road waiting for a ride to work. That was enough to catch the eye of the New Llano, Louisiana, police. The police asked Fugon (and the four other workers waiting alongside him) for ID, and arrested all five for loitering.

Once Fugon and his co-workers were booked, the police were able to send the men's information to Border Patrol, which checked its immigration records. It turned out that Fugon and a companion, Gustavo Barahona-Sanchez, had been deported before, and had reentered the country. The other three men were released, but Fugon and Barahona-Sanchez were held in detention and prepped for deportation.

Fugon was deported on Tuesday; Barahona-Sanchez is scheduled for deportation on Thursday. But at least one person within the Department of Homeland Security didn't think they should have been arrested at all. A civil rights lawyer at DHS looked over the arrest records and concluded that it certainly seemed the New Llano police had only stopped to question the construction workers because they were Latino. The lawyer worried the questioning, and the loitering arrests, were just an excuse for the police to send info to Border Patrol and check whether any of the construction workers were unauthorized immigrants.

In other words, by deporting Fugon, the federal government rewarded the New Llano police for engaging in racial profiling.

Racial profiling means some people get arrested for things everyone does

Fugon and Barahona-Sanchez's deportations aren't controversial because they're innocent. They were probably guilty of loitering. But quite a few people have been guilty of loitering at some point in their lives. The question is who gets arrested for it.

In an article in CityLab, Tanvi Misra points out that loitering laws have a particular history of getting used against young people of color. As law professor Andrew Leipold (quoted by Misra) describes them: "Usually the conduct is not itself harmful. Instead, the prohibited conduct is often described in a way that correlates to the behavior of the poor and the dispossessed."

But loitering is just one tool that some local police officers use to apprehend unauthorized immigrants for doing things that wouldn't otherwise get someone thrown in prison. For an unauthorized immigrant, driving to work is usually illegal — driving without a license is illegal, and most unauthorized immigrants can't get licenses. Since police officers can't tell whether someone has a license just by looking at the car, though, they've been known to pull over cars for infractions like broken taillights and then ask the driver for ID — allowing them to see if the driver has a license or not.

Waiting for a ride to work, as Fugon and Barahona-Sanchez found out, is loitering. Hanging out in the parking lot of a Home Depot, hoping to get hired on a day job, is soliciting.

Local police have a lot of power to send unauthorized immigrants to deportation

It's actually not illegal for federal immigration agents to consider race when they're deciding whom to apprehend (as long as it's not the only factor). But local police aren't allowed to engage in racial profiling, period. There's no exception for immigration enforcement because (under current policy) police aren't supposed to be enforcing federal immigration law to begin with. Instead of going around looking for unauthorized immigrants, they're supposed to be going around looking for people who have committed local crimes.

The system that allowed the feds to find out who'd been arrested in New Llano and ask the New Llano police to hold Fugon and Barahona-Sanchez is supposed to be a way for federal immigration agents to identify and deport people who would have been arrested and sent to prison even if they were white US citizens — it's not supposed to be a way for police to funnel unauthorized immigrants to the feds.

All of these "supposed tos" reflect the way the Obama administration says the system works. But it's extremely hard to guarantee it actually works that way, because local police have so much power to choose whom they apprehend and arrest — and know that if they apprehend and arrest someone who turns out to be an unauthorized immigrant, there's a chance the feds will come pick him up and deport him. For a police officer who's particularly keen on getting unauthorized immigrants out of the country, that's an extremely tempting proposition.

This isn't a hypothetical. Here's what happened to the lowest category of misdemeanor arrests in Irving, Texas, during an early pilot program where local cops turned "criminal aliens" over to federal authorities:

A chart of minor misdemeanor arrests as Irving, TX officers implemented a program that helped them refer unauthorized immigrants to the feds for deportation. Warren Institute

We don't know exactly how big a problem this is nationwide — how many people were arrested just because police wanted them deported. But the evidence is suggestive that it's at least something of a problem. One analysis in 2011 found that unauthorized immigrants identified after getting booked into jails were overwhelmingly male and Latino. They weren't representative of the unauthorized immigrant population, or of the people who were committing crimes as a whole. But they did represent the stereotypical unauthorized immigrant. (The same is true of deportations as a whole. Latinos make up about three-quarters of all unauthorized immigrants but 97 percent of deportees, and 85 to 90 percent of deportees are men.)

The Obama administration has tried to prevent this by setting strict limits on whom the feds actually ask to detain and deport — essentially telling local police that they can book as many suspected unauthorized immigrants as they want, but the feds won't pick them up just because the police have booked them. But the federal standards for who gets deported still include some people who haven't committed local crimes: Fugon and Barahona-Sanchez, for example, are getting deported because they'd reentered the country after a past deportation. But without the loitering arrest, they wouldn't have come to the government's attention to begin with.

The cities that are particularly worried about this have gone a step further, and put strict rules on whom to turn over to the feds at all. Republicans and conservatives attack these as "sanctuary cities," and blame them for crimes committed by unauthorized immigrants, such as the murder of Katherine Steinle in San Francisco this summer. But one of the biggest reasons for cities to adopt "sanctuary" policies is to make sure police don't have an incentive to pick someone up just because he might be an unauthorized immigrant.