Guest post by Annie Lai, Assistant Clinical Professor, University of California, Irvine School of Law and co-counsel for plaintiffs in Ortega Melendres v. Arpaio. This post is the fourth instalment of the Border Criminologies Themed Week on Race and Border Control organised by Prof Yolanda Vázquez.

sheriff
In recent years, Maricopa County, Arizona Sheriff Joe Arpaio and his agency have become a cautionary tale for those who support greater involvement by state and local officials in the enforcement of United States immigration laws. Once boasting the most expansive 287(g) agreement with the federal government to cross-certify local officers to make immigration arrests, today the embattled agency is a symbol of what can go wrong.

In May 2013, in a case called Ortega Melendres v. Arpaio, the agency was found by a federal judge to have engaged in unlawful and systematic racial discrimination against Latinos in its immigration sweeps and other traffic patrols. In his zeal to appease voters who didn’t like the ‘dark-skin[ed]’ ‘illegals’ standing on street corners or working in restaurants, Arpaio had led his agency into serious legal trouble and broke its trust with Latino residents. Based on these constitutional violations, the judge placed the agency under multiple injunctions and ordered sweeping reforms. Today, implementation continues under the watchful eye of a court-ordered monitor.

By 2000, consensus had grown in law enforcement circles that racial profiling was morally wrong and counterproductive. In 2003, the Department of Justice released guidelines generally prohibiting the use of race and other characteristics by federal law enforcement agencies. Why, then, did Maricopa County embrace racial profiling in its immigration operations in 2007?

The Ortega Melendres case offers an important lesson in the way the Sheriff’s Office’s practices can be linked to border exceptionalism. As Jennifer Chacón explains, courts have given federal agents who police the nation’s borders significantly greater authority to stop and question people than other law enforcement agents. For example, in a 1975 Supreme Court case called Brignoni-Ponce, the Court held that border agents could rely on ‘apparent Mexican ancestry’ as one factor among several when stopping motorists for suspected unauthorized presence. Although a subsequent case from the Ninth Circuit Court of Appeals, which covers Maricopa County, ruled that demographic changes and legal developments had made race an inappropriate factor to consider in border interdiction, the outdated federal approach in Brignoni-Ponce was incorporated into 287(g) training that was passed on to hundreds of Maricopa County Sheriff’s deputies.

According to the training manual:

Deputies adopted this training in their day-to-day patrol activities and it was Latino residents well into the interior of the country who would bear the brunt of this expansion of border exceptionalism. Predictably, the training had application long after the agency’s 287(g) field authority expired in November 2009. The Sheriff resisted the notion that loss of such authority meant that he could no longer enforce immigration laws. Numerous other jurisdictions with 287(g) agreements would have been affected as well, their officers trained to racially profile.

hunger strike
It’d be easier to say that the 287(g) training was the problem. But while the 287(g) training played a role, from the moment the US-Mexico border was introduced to the American consciousness, race had been part of the story. Beyond its physical existence, the border held significance as a racial boundary. As Mae Ngai describes, during this period the Mexican ‘illegal alien’ was something of a specter, ‘both fulfilling and fueling nativist discourse.’ When border control methods moved into the interior, then, it’s not surprising that calls for racial exclusion would follow. Racial difference becomes a convenient, though harmful, marker for outsider status.

In December 2014, the Department of Justice released new guidelines on the use of race and other characteristics in federal law enforcement activities. There had been hope that the Administration would close the loopholes allowing federal agents to profile at or near the border. But that did not come to pass. So long as the border exception remains, it gives other agencies and even private actors a license to profile. Racial minorities will continue to experience discrimination in communities across the country.

Themed Week on Race and Border Control:

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How to cite this blog post (Harvard style):

Lai, A. (2015) Interior Enforcement and the Racial Construction of the Border. Available at: http://bordercriminologies.law.ox.ac.uk/interior-enforcement/ (Accessed [date]).