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‘You just can’t walk up to people with brown skin and say give me your papers,’ a federal judge
told Border Patrol attorneys at a hearing challenging recent immigration sweeps.
A federal court has issued a preliminary injunction forbidding the Border Patrol from
conducting warrantless immigration stops throughout a wide swath of California.
The ruling came in response to an American Civil Liberties Union lawsuit filed after the El
Centro Border Patrol traveled to Kern County to conduct a three-day sweep in January,
detaining day laborers, farm workers and others in a Home Depot parking lot, outside a
convenience store and along a highway between orchards.
The ruling prohibits Border Patrol agents from taking similar actions, restricting them from
stopping people unless they have a reasonable suspicion that the person is in violation of
U.S. immigration law. It also bars agents from carrying out warrantless arrests unless they
have probable cause that the person is likely to escape before a warrant can be obtained.
“You just can’t walk up to people with brown skin and say, ‘Give me your papers,’” U.S.
District Court Judge Jennifer L. Thurston said during a Monday hearing in Fresno that
featured moments of heated exchange between government attorneys and the judge.
The ACLU filed suit on behalf of United Farm Workers, arguing that the stops violated the
Fourth Amendment. The judge has not decided on the totality of the case, but granted the
ACLU’s motion to stop the Border Patrol from conducting similar operations while the case
moved through the courts.
“I think that it’s pretty clear that half of a century of really established law is being upheld. It’s
unfortunate that this is a cause for celebration. It’s not legal to snatch people off the street for
looking like farm workers or day laborers,” said Elizabeth Strater, vice president of United
Farm Workers.
California Attorney General Rob Bonta agreed. “That’s existing law, and the judge’s order
reflects existing law.”
“You can’t just indiscriminately stop people and search them without any appropriate
reasonable suspicion or probable cause or without a warrant,” Bonta said at a news
conference in San Diego on Monday about conditions in ICE detention. “So, it sounds like the
judge had seen enough and wanted to issue an order. “
The injunction is in effect in the jurisdiction of California’s Eastern District, which spans the
Central Valley from Redding to Bakersfield.
After the January sweep, the man who led it, Chief Patrol Agent Gregory Bovino, said his
agents specifically targeted people with criminal and immigration histories. However, a
CalMatters investigation revealed that the Border Patrol had no criminal or immigration
history on 77 of the 78 people it arrested.
The court also ordered the Border Patrol to document every stop and provide reports within
60 days. During oral arguments on Monday, the government attorney said doing so would be
burdensome to Border Patrol agents. Judge Thurston rebuked the government, saying: “They
have to make a report for every arrest, not sure what the burden is.”
According to sworn declarations filed in court by those detained, Border Patrol agents
slashed tires, yanked people out of trucks, threw people to the ground, and called
farmworkers “Mexican bitches.”
Border Patrol attorneys characterized those examples as actions of individual agents, and not
reflective of a policy from the agency.
Thurston disagreed. “The evidence is that this was wide scale” and not limited to individual
agents, she said.
Border Patrol agents receive new training
Border Patrol attorneys didn’t offer evidence of their own to dispute the evidence presented
by the ACLU, including stopping people based on their race and warrantless arrests. They
tried to persuade Thurston that the order would not be necessary because the agency is
already taking steps to retrain its officers. In a previous court filing, government attorneys
said Border Patrol had issued guidance to retrain the El Center sector’s 900 agents on the
Fourth Amendment in order to prevent warrantless arrests.
At Monday’s hearing, Thurston questioned why guidance would even be necessary since
agents are trained on the Fourth Amendment in the academy.
Government attorneys told the judge 270 agents have received the training. Thurston asked
for details on how the training was being carried out. “Shift by shift?” she said. But
government attorneys said they did not know.
The packed courtroom was contentious at times. U.S. Department of Justice attorney Olga Y.
Kuchins argued that the Border Patrol’s sweep in Kern County, known as “Operation Return
to Sender” wasn’t standard policy. “This two-day operation does not a policy make,” she
said.
Thurston asked how many days were needed for an operation to be taken as policy, and on
what authority the government was relying on to establish this operation could not be
interpreted as part of Border Patrol policy.
“Do you know of that authority?” Thurston said.
“I don’t know of that authority,” Kuchins said.
The injunction also compels the El Centro Sector to provide proof within 90 days, and every
30 days thereafter, that agents involved in these operations have been trained on these rules.
“This ruling is a powerful recognition that what happened in Kern County and surrounding
area in January was illegal,” said Bree Bernwanger, ACLU senior staff attorney.
She called it a “powerful reminder that law enforcement agents – including immigration –
cannot stop you, detain you because of the color of your skin.”
Another immigration sweep
Even after government attorneys pledged to retrain agents on the Constitution, El Centro
sector traveled more than 200 miles north to Pomona last week and rounded up day laborers
outside a Home Depot, an action reminiscent of the Kern County raid.
Witnesses say federal agents arrived in unmarked vehicles around 8:30 a.m. and quickly
surrounded the Home Depot parking lot on South Towne Avenue.
“When they saw that a critical mass was gathered, they executed the raid,” said Alexis
Teodoro, a Worker Rights Director with the Pomona Economic Opportunity Center.
According to U.S. Customs and Border Protection, agents arrested 10 and placed them into
removal proceedings. No other agencies were involved, said Michael Scappechio, a
spokesman for U.S. Customs and Border Protection. Advocates are adamant that more than
20 people were initially taken into custody, based on piecing together the accounts of
different witnesses about what happened.
Federal officials defended their actions, saying agents were initially targeting a single
individual with an active arrest warrant. During the operation, nine other people were also
taken into custody. Some of those detained had prior charges, including child abuse, assault
with a deadly weapon, immigration violations, and DUI, said Hilton Beckham, the assistant
commissioner for CBP’s office of public affairs.
Jesus Domingo Ross, 38, was standing on a street corner looking for work near the Home
Depot in Pomona last week when, he said, agents appeared from all sides, grabbed him and
threw him to the ground.
“I panicked,” he said, describing the moment he realized he was in custody of U.S.
immigration authorities. “Just with everything you’re seeing on the news right now, I really
panicked because we didn’t know what was going to happen.”
He spoke to CalMatters on Saturday night during visiting hours at the Imperial Regional
Detention Facility in Calexico, where he is now being held.
“I’m trying to keep my confidence in God to carry me through this,” he said quietly.
