Prohibit profiling in immigration enforcement: close the loophole now!
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Day by day needless profiling haunts the lives of untold numbers of individuals, families and communities across the United States. Last week, the National Queer Asian Pacific Islander Alliance (NQAPIA) submitted a widely supported Policy Guidance  to the U.S. Department of Homeland Security (DHS) to prohibit profiling on the basis of race, ethnicity, national origin, color, religion, language, sexual orientation, and gender identity. After a year of relentless advocacy by NQAPIA, staff from the President's Domestic Policy Council requested the model guidance language.

In this time of political uncertainty and uneasiness, the administration’s dismantling of the National Security Entry-Exit Registration System - which gave rise to the “special registration” that targeted Muslims and devastated immigrant communities after the Sept. 11 attacks - was welcomed by advocates. Now it is critical to take the next step.

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It is no secret that people from communities of color, including those from Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities of color whom NQAPIA represents, have faced an unprecedented acceleration of violence and continue to be mistreated and singled out at airports, local neighborhoods, and peaceful gatherings.

Now is the time for President Obama and the DHS to build upon the elimination of the National Security Entry-Exit Registration System and close the loophole to prohibit profiling in immigration enforcement. Now is the time for the DHS to issue the guidance they have been promising for over a year.

Currently there is no policy against profiling in immigration enforcement.  The U.S Department of Justice issued a guidance in 2014 barring profiling, but exempted the Department of Homeland Security and its agencies. As a matter of federal public policy, it is actually permissible for TSA, ICE, and CBP to assert that someone is a threat based on no other information other than what is profiled. This is simply unacceptable.

For the past year, racial justice and immigrant rights advocates have been pushing to close this gaping loophole. To assist in this effort, NQAPIA developed model guidance language to enact desperately needed protections against profiling.

The model guidance prohibits DHS and its agencies from using race, ethnicity, gender, national origin, language, religion, sexual orientation, or gender identity as the sole basis for monitoring, investigating, stopping, detaining, questioning, or searching an individual, or placing an individual into detention or removal proceedings.

It further details:
  • Examples of inappropriate uses of profiling in border security, national security, and state and local law enforcement.
  • A complaint process for addressing allegations of profiling.
  • A remedy for when inappropriate profiling is used, calling for resulting detention or deportation to be deemed improper and revoked. This would mirror already existing practices in criminal proceedings where wrongfully obtained evidence is suppressed.

Racial profiling has been used in federal programs that have ravaged communities of color such as the “War on Drugs,” “War on Terror,” and in immigration enforcement abuses that created laws like Arizona’s SB1070 and other collaborations between Immigration Customs and Enforcement (ICE) and local law enforcement.

Profiling has been widely rejected both on moral grounds and because of its ineffectiveness. Republican President George W. Bush issued the first set of federal guidance barring profiling in law enforcement in 2003.  There is widespread and bipartisan support against profiling and support for closing the DOJ loophole. During 2016 over a thousand postcards and hundreds of e-petition signatures were delivered to DHS Secretary Jeh Johnson demonstrating support for the end of profiling in DHS.

There is no time more urgent than now to close the profiling loophole and end illegal profiling. We urge the President to take immediate action on this issue.

Glenn Magpantay is Executive Director of National Queer Asian Pacific Islander Alliance (NQAPIA)


The views expressed by authors are their own and not the views of The Hill.