Reduced Overtime Hours Stymies Border Patrol (Arizona)

The U.S. Border Patrol has quietly reduced its current force of available agents along the U.S.-Mexico border by cutting the overtime hours they can work even as the Obama administration is asking Congress for hundreds of millions of dollars to hire 1,000 new agents, and Congress and the public are clamoring for beefed-up border security.

Several rank-and-file and senior agents told The Washington Times that a new overtime directive issued at the agency's Washington headquarters will limit their ability to get their jobs done, reduce coverage during peak smuggling periods and allow more criminals to avoid apprehension.

"By lowering the statutory overtime cap nearly 15 percent through the current administrative restrictions, top-level managers in the Border Patrol are depriving Americans of desperately needed coverage along the border at a time of national crisis," said T.J. Bonner, a veteran agent who heads the National Border Patrol Council, which represents all 15,000 of the agency's nonsupervisory agents.

Because of the nature of the job, most Border Patrol agents average at least two hours overtime a day and the agency, as part of its ongoing recruitment effort, has promised what it called an "excellent opportunity for overtime pay." The overtime cutback comes at a time that violence against the agents, according to Department of Homeland Security records, is up 31 percent this fiscal year.

More than 200 Border Patrol agents have been assaulted since October, mostly with rocks. On June 8, one agent fatally shot a 15-year-old during a rock attack.

Reality vs. Myth: SB1070

Make it illegal in the State of Arizona for an alien to not register with the government, thus being an “illegal alien” (already the case at the federal level: 8 USC 1306a; USC 1304e)

Allow police to detain people where there is a “reasonable suspicion” that they’re illegal aliens (see the recent court case Estrada v. Rhode Island for an idea of what “reasonable suspicion” might entail)

Prohibits sanctuary cities (already prohibited at the federal level, 8 USC 1373) and allows citizens to sue any such jurisdiction

Reality vs. Myth: SB1070

Myth No. 1: The law requires aliens to carry identification that they weren’t already required to carry.

Reality: It has been a federal crime (8 United States Code Section 1304(a) or 1306(e)) since 1940 for aliens to fail to carry their registration documents. The Arizona law reaffirms the federal law. Anyone who has traveled abroad knows that other nations have similar requirements. The majority requests for documentation will take place during the course of other police business such as traffic stops. Because Arizona allows only lawful residents to obtain licenses, an officer must presume that someone who produces one is legally in the country. (See News Hour clip 3:45 seconds in)

Myth No. 2: The law will encourage racial profiling.

Reality: The Arizona law reduces the chances of racial profiling by requiring officers to contact the federal government when they suspect a person is an illegal alien as opposed to letting them make arrests on their own assessment as federal law currently allows. Section 2 was amended (by HB2162) to read that a law enforcement official “may not consider race, color, or national origin” in making any stops or determining an alien’s immigration status (previously, they were prohibited in “solely” considering those factors). In addition, all of the normal Fourth Amendment protections against racial profiling still apply.

Myth No. 3: “Reasonable suspicion” is a meaningless term that will permit police misconduct.

Reality: “Reasonable suspicion” has been defined by the courts for decades (the Fourth Amendment itself proscribes “unreasonable searches and seizures”). One of the most recent cases, Estrada v. Rhode Island, provides an example of the courts refining of “reasonable suspicion:”

A 15 passenger van is pulled over for a traffic violation. The driver of the van had identification but the other passengers did not (some had IDs from a gym membership, a non-driver’s license card from the state, and IDs issued from the Guatemalan Consulate). The passengers said they were on their way to work but they had no work permits. Most could not speak English but upon questioning, admitted that they were in the United States illegally. The officer notified ICE and waited three minutes for instructions.

The SB1070 provision in question reads:
“For any lawful contact made by a law enforcement official or agency of this state . . . where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”

Myth No. 4: The law will require Arizona police officers to stop and question people.

Reality: The law only kicks in when a police officer stopped, detained, or arrested someone (HB2162). The most likely contact is during the issuance of a speeding ticket. The law does not require the officer to begin questioning a person about his immigration status or to do anything the officer would not otherwise do.

Only after a stop is made, and subsequently the officer develops reasonable suspicion on his own that an immigration law has been violated, is any obligation imposed. At that point, the officer is required to call ICE to confirm whether the person is an illegal alien.

The Arizona law is actually more restrictive than federal law. In Muehler v. Mena (2005), the Supreme Court ruled that officers did not need reasonable suspicion to justify asking a suspect about their immigration status, stating that the court has “held repeatedly that mere police questioning does not constitute a seizure” under the Fourth Amendment). Source = http://www.numbersusa.com/dfax?jid=475466&lid=9&rid=123&series=tp06MAY10&tid=999725

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