Two U.S. Border Patrol agents recently followed a family they saw in Bangor into the Goodwill thrift store on Stillwater Avenue.
The family “appeared to be of Central-American origin,” a Border Patrol agent wrote in federal court records, and the agents “overheard several people speaking Spanish” inside the store. Then, the agents approached the people and asked where they were from.
Eventually, they arrested one member of the group, 31-year-old Mateo Carmelo-Bartolo of Guatemala, on a charge that he re-entered the country illegally. He was previously deported in 2007 and 2010, and told agents he had returned in 2013, according to a court affidavit written by Border Patrol Agent Matthew McLellan in support of Carmelo-Bartolo’s arrest.
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The Sept. 19 arrest jumps out to experts in immigration law not because the federal agents appeared to use race and language as the basis for questioning someone, but because they apparently admitted to it in court documents.
In the affidavit, McLellan explicitly mentioned the Central American appearance of Carmelo-Bartolo and his relatives, along with the fact that they were speaking Spanish. He did not provide any other reason for why the agents followed them into the thrift store and approached them — even though the Supreme Court has ruled that immigration authorities cannot target people solely based on their racial appearance.
“It’s not surprising that they’re relying on race,” said Kevin Johnson, an expert on immigration law who serves as dean of the University of California, Davis School of Law. “It’s somewhat surprising that they’re admitting to relying on race.”
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Emma Bond, a staff attorney with the American Civil Liberties Union of Maine, said, “It’s chilling to hear that federal law enforcement agencies openly admit they approach people because of the color of their skin or the language they’re speaking.”
“That’s racial profiling, and people shouldn’t have to live in fear that law enforcement is going to target them and their families,” she said.
A New England spokesman for U.S. Customs and Border Protection, Michael McCarthy, declined to say whether there were any other grounds for agents to stop Carmelo-Bartolo’s family, citing an agency policy of not “commenting on pending litigation.”
He also did not respond to questions about how frequently agents use racial appearance or spoken language as the initial basis for approaching suspects, or what the two agents were doing in Bangor, almost 100 miles from the nearest Canadian border.
McLellan’s affidavit only said they were assigned to do surveillance in Bangor on Sept. 19 and were “conducting patrol activities between transportation hubs.” It didn’t say where they first saw Carmelo-Bartolo’s family.
At the time of his arrest early on a Thursday evening, Carmelo-Bartolo was with his wife, his brother, his sister-in-law and two children, all of whom are from Guatemala, the affidavit said.
After he was taken to the Border Patrol station in Houlton, Carmelo-Bartolo told agents that he had come to the country to work and provide for his wife, according to McLellan. The other people told the agents that they had been arrested by Border Patrol in El Paso, Texas, earlier this year and were already scheduled to appear in immigration court.
Carmelo-Bartolo’s criminal case is now pending in federal court in Bangor. His attorney, Ronald Bourget of Augusta, did not respond to requests for comment. No upcoming hearings are listed in his court file.
Carmelo-Bartolo could file a motion to suppress any questioning that resulted from the agents taking note of his race, so the court would not be able to take that information into account in ruling on his case, according to Johnson. The agents also noted another factor for approaching the family that could make the evidence more legally admissible — that its members were speaking Spanish — but Johnson said that a court could take the view that “language is tightly related to race.”
“The burden is very high on noncitizens to show that it was an egregious violation of their constitutional rights,” he said. “But that doesn’t mean that in some cases noncitizens don’t prevail, because sometimes they do.”
Randy Capps, a director of research at the nonpartisan Migration Policy Institute, said that it’s unusual for U.S. Customs and Border Protection to send its already limited northern border staff to do other types of enforcement in places such as Bangor and that the recent arrest probably does not signify a larger change in how the agency operates.
“I would question if this is part of their regular duties, or just some people they happened to find who looked suspicious because they looked Central American,” he said. “That’s where the potential racial profiling comes in.”
The Houlton sector of U.S. Customs and Border Protection covers the entire state of Maine. Its agents manage border crossings and perform regular patrols along the Canadian border. They also have the legal authority to set up random checkpoints within 100 miles of the border to check the immigration status of drivers and passengers, as they sometimes do on Interstate 95. More controversially, they also visit transit hubs such as the Bangor Transportation Center on Union Street to question bus passengers about their citizenship, a practice that has been the target of lawsuits from the ACLU.
In general, the Houlton sector has accounted for a tiny portion of the federal agency’s immigration enforcement. It apprehended just 52 undocumented immigrants last year, compared with tens of thousands in almost every sector along the Mexican border.
Jason Owens, who took over as the Houlton sector’s chief patrol agent early this year, told the Portland Press Herald in August that he wants to increase checks at transit hubs and traffic checkpoints, such as a recent three-day checkpoint on Interstate 95 in Sherman.