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Border Patrol memo contradicts Greyhound on bus raids

UPDATED: Fri., Feb. 14, 2020

A worker, right, speaks with a Customs and Border Protection agent seeking to board a Greyhound bus headed for Portland, Ore., at the Spokane Intermodal Center on Feb. 13, 2020. Washington Attorney General Bob Ferguson has sued the bus line over how it checks passengers’ immigration status at the facility. (Nicholas K. Geranios / AP)
A worker, right, speaks with a Customs and Border Protection agent seeking to board a Greyhound bus headed for Portland, Ore., at the Spokane Intermodal Center on Feb. 13, 2020. Washington Attorney General Bob Ferguson has sued the bus line over how it checks passengers’ immigration status at the facility. (Nicholas K. Geranios / AP)
By Gene Johnson Associated Press

SEATTLE – A Customs and Border Protection memo obtained by The Associated Press confirms that bus companies such as Greyhound do not have to allow Border Patrol agents on board to conduct routine checks for illegal immigrants, which is contrary to the company’s long insistence it has no choice but to do so.

Greyhound, the nation’s largest bus carrier, has faced pressure from the American Civil Liberties Union, immigrant rights activists and Washington Attorney General Bob Ferguson to stop allowing sweeps on buses within 100 miles of an international border or coastline.

They say the practice is intimidating and discriminatory and has become more common under President Donald Trump. Border Patrol arrests videotaped by other passengers have sparked criticism, and Greyhound faces a lawsuit in California alleging that it violated consumer protection laws by facilitating raids.

Some other bus companies, including Jefferson Lines, which operates in 14 states, and MTRWestern, which operates in the Pacific Northwest, have made clear they do not consent to agents boarding buses.

The memo obtained by the AP was dated Jan. 28, addressed to all chief patrol agents and signed by then-Border Patrol Chief Carla Provost just before she retired. It confirms the legal position that Greyhound’s critics have taken: The Constitution’s Fourth Amendment prevents agents from boarding buses and questioning passengers without a warrant or the consent of the company.

“When transportation checks occur on a bus at non-checkpoint locations, the agent must demonstrate that he or she gained access to the bus with the consent of the company’s owner or one of the company’s employees,” the memo states. An agent’s actions while on the bus “would not cause a reasonable person to believe that he or she is unable to terminate the encounter with the agent.”

Border Patrol officials have previously said agents do seek the consent of the bus driver before boarding and questioning passengers. Bill Kingsford, the operations officer for the Border Patrol’s Spokane, Washington, sector, said Thursday before the memo he had never seen that policy in writing.

In response to criticism over the past two years, Greyhound has said it does not support or “consent” to the bus searches, but that federal law left it no choice. The company said the immigration sweeps make for delays, missed buses and unhappy customers.

Greyhound’s parent company, FirstGroup PLC, said last summer: “We are required by federal law to comply with the requests of federal agents. To suggest we have lawful choice in the matter is tendentious and false.”

After being alerted to the memo by the AP, Greyhound said it appreciated the Border Patrol “clarifying” its policy. It reiterated it does not consent to the searches, but refused to say whether it would prohibit agents from boarding its buses.

“We were unaware of USBP’s memo clarifying their practices regarding transportation and bus check operations,” the company said. “We are pleased there appears to be greater context about these practices as we have publicly stated we do not consent to these searches and maintain that position.”

The statement said it would continue to request guidance from the Border Patrol. “Our goal is to ensure that our passengers and drivers feel safe and secure when riding with us, and we’ll continue to make that our top priority.”

Spokane City Council President Breean Beggs and Council Member Kate Burke said they saw the memo as affirming of a 2018 ordinance that restricted the U.S. Border Patrol’s search of buses and access to city property not open to the public, which includes the Greyhound bus station at the Spokane Intermodal Center.

The ordinance requires immigration enforcement to obtain a warrant or permission from the mayor to enter city property that has been designated as a nonpublic area, such as the Spokane Intermodal Center. Greyhound buses as well as the loading area for the buses are nonpublic areas because only employees or those who have purchased bus tickets are allowed to be in those areas.

Former Spokane Mayor David Condon said city employees didn’t have the authority to prevent immigration officials from entering city property. The agency did not change its practices after the ordinance was passed, and city spokesperson Marlene Feist said Border Patrol has not sought permission from the Mayor Nadine Woodward to enter the Intermodal Center.

The leaked Border Patrol memo doesn’t change anything for how the Spokane Border Patrol Sector operates, either, according to Kingsford. He said agents still go to the Intermodal Center and ask drivers for permission to search the bus.

“If they tell us we can, we go on and do our job,” Kingsford said.

Beggs said he plans to check in with city’s legal department about the status of the city ordinance in light of the leaked memo.

“The City Council has been trying to uphold the Constitution on this,” Beggs said. “City Council was protecting all passengers, not just some passengers. My kids have ridden the Greyhound, and they don’t want to be searched.”

Burke said Woodward needs to take a stand on the issue by declaring that the searches are wrong and the Border Patrol isn’t welcome there.

Newly elected City Council member Michael Cathcart said he believes in protecting people’s rights against unreasonable searches and seizures but doesn’t think local officials have the authority to override federal immigration law. He said he also believes the 100-mile border zone is unconstitutional, despite being held up by the Supreme Court.

“There should be no fishing expeditions,” said Cathcart, who added he wants Spokane to be a welcoming place for everyone.

Advocates said the memo could give them additional leverage.

“This puts the pressure on Greyhound,” said Matt Adams, legal director of the Northwest Immigrant Rights Project. “Are you going to stand up and protect your customers or are you going to collaborate with the government and turn over your passengers to the Border Patrol?”

ACLU chapters in 10 states – California, Washington, Vermont, New York, New Hampshire, Michigan, Florida, Maine, Texas and Arizona – wrote to Greyhound in 2018 to express their concern with passengers being pulled off buses and arrested.

In several cases, they said, it appeared passengers had been singled out and questioned based on having dark skin or foreign accents.

The Border Patrol denies that, saying all passengers are questioned.

“Greyhound must take a firm stance – issue a public statement, add signage to buses and stations, train and empower employees, etc. – to make it abundantly clear that the company as a whole does not consent to these searches,” said Andrea Flores, deputy director of policy at the ACLU’s Equality Division.

The Border Patrol says the bus checks are an important way to find undocumented immigrants, human trafficking or drug smuggling. The memo said agents still can observe passengers boarding and exiting buses and question them outside the buses.

Washington’s Democratic attorney general has threatened legal action, saying Greyhound’s acquiescence to the Border Patrol causes travel delays as well as alarm and confusion for patrons – in potential violation of state consumer protection law.

He asked Greyhound last year to take several steps, including posting stickers on its buses notifying the Border Patrol it does not consent to searches, but the company has declined to do so.

Other bus companies contacted by the attorney general’s office have placed stickers on their doors noting the company does not consent to searches or have given drivers placards to hand to agents explaining the refusal.

“This memo is consistent with what my office has been saying all along to Greyhound,” Ferguson said in a statement. “Unfortunately, Greyhound continues to demonstrate indifference to the legal rights of its customers. If Greyhound refuses to recognize their legal obligations, then we will be forced to take action.”

Under then-President Barack Obama, Customs and Border Protection in late 2011 began cutting back on so-called “transportation checks,” especially along the U.S.-Canada border, amid criticism it amounted to racial profiling. The agency told agents to keep away from bus and train stations entirely unless they had “actionable intelligence” about someone who had recently entered the country illegally. It also said such operations had to be cleared with Border Patrol headquarters in Washington, D.C.

The Trump administration returned authority to the chief agents in each Border Patrol sector to approve the operations, and they have been on the rise, the agency says.

The agency has especially faced criticism for conducting the checks on buses far from the border.

In Spokane, just under 100 miles from Canada, arrests at the city’s bus depot rose from 35 in 2017 to 84 last year, according to data obtained by the University of Washington’s Center for Human Rights. Bus routes there run east and west and don’t cross the border.

Among those arrested in Spokane last year was Portland comedian Mohanad Elshieky, who was removed from a Greyhound bus as he returned home from a performance. Elshieky, a Libyan citizen who was granted asylum in the U.S. in 2018, said he was detained for 20 minutes, even though he had two forms of identification showing he was in the country legally.

Border Patrol agents allegedly called Elshieky a lying “illegal.”

Elshieky’s attorneys filed a federal lawsuit Friday for false arrest in U.S. District Court for the Eastern District of Washington. He is represented by the Northwest Immigrant Rights Project, the ACLU of Washington and the law firm of Davis Wright Tremaine LLP, according to a news release.

“The rights and protections of our laws and the Constitution apply to our client and every traveler through Washington,” Lisa Nowlin, staff attorney for the ACLU of Washington, said in a statement. “No one should face fear and intimidation because of their perceived race or ethnicity.”

Spokesman-Review reporter Jared Brown contributed to this report.

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