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Arivaca residents demand BP stop interfering with checkpoint monitors

Arivaca residents believe an effort to observe and document alleged abuses at a Border Patrol checkpoint near the town has been inappropriately blocked by agents. 

On Wednesday,  the American Civil Liberties Union sent a letter to Tucson Sector Chief Manuel Padilla demanding that border agents “immediately cease interfering with lawful protest and monitoring of the Arivaca Road checkpoint and respect the civil rights of all residents and motorists at Border Patrol checkpoints.” 

Arguing that interference by Border Patrol agents violates the First Amendment rights of the monitors, the ACLU may sue the agency, according to James Lyall, an ACLU staff attorney based in Tucson. 

Starting on Feb. 26, members of the group People Helping People in the Border Zone have watched the checkpoint, 25 miles north of the U.S.-Mexico border, at least three times a week. However, according to the letter, agents at the checkpoint have harassed the monitors by repeatedly threatening to arrest them and blocking their view with vehicles. 

In response to a request for comment the agency emailed a statement that issues mentioned in the letter are “currently under investigation” but that the agency would not discuss matters “under the investigative process.” 

Residents claim that the checkpoint is a source of racial profiling, invasive searches, verbal harassment, and even physical assault. The checkpoint’s placement on the main road between Arivaca and Interstate 19 means that residents may have to pass through the checkpoint twice a day. 

On March 1, residents returned to the checkpoint for observation but were greeted with new barriers, which blocked pedestrian access on both sides of the road and included a sign “Border Patrol Enforcement Zone - No Pedestrians Beyond This Point.” Border Patrol agents have also, according to residents, parked their vehicles to block their view, and on one occasion left vehicles idling for at least four hours, exposing the monitors to exhaust fumes. 

The next week, on March 7, the group received an email from Border Patrol agent Roger San-Martin, which stated that “Agents have the right to perform their duties without impediment by individuals who are on scene. The decision on where monitors can stand/sit without interfering with agents and traffic is that of the agents and not the monitors.” 

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San-Martin also cited safety concerns, noting that “agents cannot and will not allow the monitors to establish ground in areas where the agents feel the monitors may be at risk should a confrontation arise between agents and those they may be trying to arrest.” 

Art Del Cueto, the president of the Tucson Sector’s Border Patrol union, Local 2544 of the National Border Patrol Council, agreed. 

“It is a potential area for danger when people refuse to stop at the checkpoint or drive erratically and agents have to launch a pursuit,” he said. 

However, the ACLU argues that by pushing the monitors back creates an  “unacceptable risk of viewpoint discrimination.” According to the U.S. Supreme Court, filming the actions of law enforcement officers is protected. Moreover, the ACLU noted, monitors and protestors are engaged in political speech, which is “guaranteed the highest level of protection under the First Amendment.” 

“Border Patrol agents at the Arivaca Road checkpoint cannot evade the First Amendment by decreeing that an arbitrary 150-feet area within a public right of way is a ‘operations zone’ or a ‘controlled area’ from which individuals must be excluded for ‘safety reasons,'" wrote the ACLU in the letter. 

“There are a thousand reasons why we don’t want people to take pictures,” said Del Cueto, “We don’t know who they are or why they’re taking pictures. They could be someone trying to figure out our schedules, our routes, when we use the dogs.” 

Del Cueto argued that residents should use the agency’s system to handle complaints, noting that the Department of Homeland Security’s Inspector General’s office handles complaints and not Border Patrol itself.

“I can’t think of a clearer demonstration for the agency’s lack of regard for public accountability,” said Lyall. 

Agents he said, have created a safety hazard by establishing the barrier requiring pedestrians to cross into the road in order to pass the checkpoint.

Since last July, the group of Arivaca residents have pushed for the removal of the checkpoint. In December, they submitted a petition signed by more than one-third of the town’s 695 residents to Padilla in December. And, in January the ACLU sent an administrative complaint to the Department of Homeland Security citing abuses at the checkpoint. 

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According to Lyall, DHS has responded only to say the agency is investigating the claims.

In time with the letter from the ACLU, People Helping People also released a video they claim shows a Border Patrol agent harassing a woman at the checkpoint. The women was sent to a secondary inspection after she refused to answer the agent’s question, “Is this your car?” 

The unidentified woman, whose face is blurred, took the video using a cellphone. “Do I have to answer that?” she asked.

“Well, I can put you into secondary and wait for a canine,” the agent said. 

Two agents, one of whom later identified himself as a supervisory Border Patrol agent, arrived at the window. The woman asked, “Can I have your name and badge numbers?” 

“We ask the questions around here ma’am,” the unidentified agent responded. 

The video continued as the agent lectured her about the necessity of the checkpoint. 

“This is a checkpoint. Do you understand? Okay, I want to tell you something, whatever your rejection is, or to whatever is going on here, let us investigate and we can be on our way. We don’t have time for this, there are criminals here, okay? If you have a political or an emotional situation, I don’t want to hear about it. Let me see your ID.” 

After the woman left the car, the camera was covered by a leather portfolio, but the agent can be heard as he lectured her for several more minutes about the checkpoint, citing cartel members and the deaths of people in the desert. Nearly eight minutes into the confrontation, he said, “You don’t have to agree with it. When there’s an over-inspection and you feel like we’re taking something away, but that’s not what we’re doing."

In the letter sent to DHS, Lyall notes that while the U.S. Supreme Court found in the 1976 case United States v. Martinez-Fuerte that immigration checkpoints are permissible, this is only true so long as the stops are brief and the vehicle’s occupants are only required to answer brief questions and "possibly the production of a document evidencing a right to be in the United States.”

However, Lyall wrote, "local residents are often forced to undergo searches and detentions ranging far beyond 'limited' citizenship inquiries” and are often detained in secondary inspection area for unjustified reasons."

The agency, Lyall said, remains unaccountable. 

Despite a GAO report from 2009 that found problems with the checkpoint oversight, Lyall wrote that "The experiences described by the residents of Arivaca—and those listed below—are not unique; rather, they are consistent with numerous reports of rights violations across the state and throughout the southwest, and have become more common as Border Patrol has expanded at an unprecedented rate.” 

“People are upset or frustrated and they don’t want to deal with these questions,” said Del Cueto. “The agents are people too, but we have a job to to and we’ve sworn to protect the country and that’s what we’re doing.” 

Observers will continue to watch the checkpoint, three times a week in four-hour shifts.

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Paul M. Ingram/TucsonSentinel.com

On Feb. 26, Border agents ordered monitors and protestors back more than 100 feet from the checkpoint. The barrier was increased after the first day to include signs and barriers keeping pedestrians from walking along the road in both directions.