In the wake of an incident involving two women who were stopped by a Border Patrol agent because they were speaking Spanish, legal experts consulted by Univision advise all foreigners, with or without authorization to live in the United States, including citizens or permanent legal residents, to always carry identification with them in case it is requested by authorities.
Last Wednesday two women, Ana Suda and Mimi Hernandez, both U.S. citizens, were questioned by a Border patrol agent after going to buy milk and eggs at a gas station in Montana, located about 20 miles from the Canadian border. The Border Patrol agent requested to see their papers saying "it has to do with you guys speaking Spanish in the store in a state where it's predominantly English speaking." (The US census shows only 1.4% of the Montana population speak Spanish)
The agent denied his actions were the result of racial profiling and the agent appeared to conduct himself in a polite and non-aggressive manner.
The women were able to demonstrate that they were US citizens and were not arrested. One of them used a cell phone to record the incident which has raised questions in the immigrant community.
Legal or not?
The US Customs and Border Protection (CBP) has a nondiscrimination policy that prohibits "the consideration of race or ethnicity" in its screening and law enforcement activities. But the policy is vague, and states that agents "may use race or ethnicity when a compelling governmental interest is present."
A Border Patrol spokesperson told Univision News that agents "have the authority to question individuals, make arrests, and take and consider evidence. Decisions to question individuals are based on a variety of factors for which Border Patrol agents are well-trained. This (Montana) incident is being reviewed to ensure that all appropriate policies were followed.”
In an emailed statement, the spokesperson added that Border Patrol agents "are committed to treating everyone with professionalism, dignity and respect while enforcing the laws of the United States. 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."
The importance of carrying ID documents becamemore imperative, lawyers say, after President Donald Trump signed two executive order Jan 25, 2017: one related to construction of a borer wall and the other regarding so-called 'sanctuary cities,' which decreed that the large presence of undocumented immigrants constituted "a threat to national security and public safety.
"They can ask for papers," says Alex Galvez, an immigration attorney who practices in Los Angeles, California. "What they cannot do is stop a person using only the argument that he did it because the individuals he arrested looked undocumented," he added. "Nor can they argue that the detention was carried out because they spoke in Spanish. Technically that is not legal. It's like saying that I stopped you because you look Latino."
Gálvez also said that "those affected in this case can to sue arguing that their constitutional rights were violated in a civil rights trial. "
Jaime Barrón, an immigration attorney who practices in Dallas, Texas said "simply speaking in another language cannot be an illegal act, that could be discrimination." he added; "for the time being we don't know what criteria the agent used. We must review if there were other consequences when he asked the woemn for their papers," he added.
Barrón said he has lived on the border for a long time and it was common to see Border Patrol agents in the city, but it's unusual for them to ask people for papers because they are speaking in a language other than English."
Better to be prepared
As a result of this incident, the lawyers advise the immigrant community to make sure to have evidence with you at all time to show you have right to be in the country. Permanent or temporary residents should always have an identification handy to show that they are legally in the United States, they say.
"It's always a good idea to carry ID," says Víctor Nieblas, an immigration lawyer and past chair of the American Immigration Lawyers Association (AILA). "There are laws that indicate, for example, that legal permanent residents need to have their geen card with them at all times."
The Jan 25, 2017 executive orders outlined a new policy priority to deport all 11 million undocumented persons, "although some are more of a priority than others," warns Nieblas.
"Those who can show that they have been in the United States for more than two years and have no criminal record, are able to contest their cases. Carrying ID is always a good idea in these drastic times, as well as reeceipts than can show uninterrupted presence. You must have proof of rent, children's schooling, bank accounts, receipt for electricity and water. All that is useful," he explained.
However, for undocumented persons, showing a passport is not always advisable.
"I wouldn't want undocumented people to carry a passport at the moment they are detained, because if the arrest is carried out by an agent from the Immigration and Customs Enforcement (ICE), they will immediately be able to confirm their identity and undocumented status, which can accelerate the deportation process," he added.
"Ideally, they should carry with them any other document that does not show that they are a foreigner," he said. "The goal is not to help immigration officials identify them and remove them as soon as possible, as required by Trump's executive orders."
On the other hand, showing a passport can also help a person in those cities or jurisdictions that provide certain types of protections to the undocumented. Everything depends on where the person lives and where they ask for documents," said Nelson Castillo, a lawyer in Los Angeles, California.
Lawyers all strongly advise against use of false identity documents such as driver's license, passport or social security card. Use of false documents is a crime that will result in accelerated be deported in an accelerated manner.
Spanish speakers in the US
There are 41 million native Spanish speakers in the United States, according to census data - roughly 13% of the population. The number of native Spanish speakers has more than doubled since 1990.
Among non-Hispanics, Spanish is also America's most spoken foreign language, according to the Pew Research Center.