US to Continue Racial, Ethnic Profiling in Border Policy

WASHINGTON - The Obama administration will soon issue new rules curtailing the use of profiling, but over the objection of civil rights groups, federal agents will still be allowed to consider race and ethnicity when stopping people at airports, border crossings and immigration checkpoints, according to several government officials.

The new policy has been in the works for years and will replace decade-old rules that banned racial profiling for federal law enforcement, but with specific exemptions for national security and border investigations. Immigration enforcement has proved to be the most controversial aspect of the Obama administration's revisions, and law enforcement officials succeeded in arguing that they should have more leeway in deciding whom to stop and question.

The administration is set to release the new rules in the midst of nationwide protests over recent decisions in New York and Ferguson, Mo., not to prosecute white police officers for the deaths of unarmed black men. President Obama and Attorney General Eric H. Holder Jr. have sought to calm tensions between law enforcement and minorities.

The new rules expand the definition of prohibited profiling to include religion, national origin, gender, sexual orientation and gender identity. They will cover local police assigned to federal task forces, but not local police agencies. They eliminate the broad exemption for national security, but F.B.I. agents will still be allowed to map neighborhoods and use that data to recruit informants from specific ethnic groups.

The debate over racial profiling in immigration enforcement, however, has delayed the release of the new rules for months. Mr. Holder, who was leading the policy review, told colleagues that he believed that border agents did not need to consider race or ethnicity. But the Department of Homeland Security resisted efforts to limit the factors it can consider when looking for illegal immigrants. Department officials argued that it was impractical to ignore nationality when it came to border enforcement.

'The immigration investigators have said, 'We can't do our job without taking ethnicity into account. We are very dependent on that,' ' said one official briefed on the new rules. 'They want to have the least amount of restrictions holding them back.'

The effects of any rule change could be felt far from the border with Mexico or Canada. Federal agents have jurisdiction to enforce immigration laws within 100 miles of the borders, including the coastlines, an area that includes roughly a third of the United States, and nearly two-thirds of its population. Federal agents board buses and Amtrak trains in upstate New York, questioning passengers about their citizenship and detaining people who cannot produce immigration papers. Border Patrol agents also run inland checkpoints looking for illegal immigrants. Senator Richard J. Durbin, Democrat of Illinois, has called the existing rules 'a license to profile.'

Under the new rules, agents in those instances will still be allowed to consider race, national origin and other factors that would otherwise be off limits, according to several officials who spoke on condition of anonymity because they were not authorized to discuss the draft rules. In an apparent nod to its critics, the administration will conduct a separate review into how agents conduct screening, border interdiction and inspections, the officials said.

The leeway in the rules reflected the fact that Border Patrol agents face challenges that F.B.I. agents and drug investigators do not, one senior official said. 'They have a very short period of time to make an assessment as to whether further inquiry needs to be given,' he said. The rules will included new training requirements and will require federal agents to keep records on complaints they receive about profiling, several officials said.

The Obama administration's revisions come on the heels of the president's decision to grant legal status to millions of immigrants who entered the country illegally. The new rules are likely to upset some of the advocacy groups that pushed hardest for that action. 'Of course we are disappointed,' said Tanya Clay House, the public policy director of the Lawyers' Committee for Civil Rights Under Law, which has lobbied the administration on racial profiling for several years but has not been officially notified of the new rules. She said racial profiling is ineffective, both in general and at the border.

Mr. Holder, the nation's first black attorney general, has spoken forcefully against racial profiling. He has recounted being stopped by police as a college student and as a federal prosecutor. But while law enforcement officials were generally supportive of his efforts to broaden protections for minorities, Mr. Holder ran into objections on the issues of national security and border protection.

F.B.I. agents opposed a wholesale ban on considering race and nationality in terrorism investigations. They said, for example, that an agent investigating the Shabab, a Somali militant group, must be able to find out whether a state has a large Somali population and, if so, where it is.

The Justice Department was prepared to announce its revisions to the racial profiling rules earlier this year, but the White House intervened and ordered a broad review that included the Department of Homeland Security, the parent agency of the Border Patrol. Because Mr. Holder cannot, on his own, tell another cabinet department what rules to follow, the new guidelines amount to months of negotiations between the Justice Department, Homeland Security and the White House. The broad exemptions for national security and immigration were eliminated, but several provisions remain.

The rules - both the current version and the revisions - offer more protection against discrimination than the Supreme Court has said the Constitution requires. The court has said that border agents may not conduct roving traffic stops simply because motorists appeared to be of Mexican descent, but agents at checkpoints may single out drivers for interviews 'largely on the basis of apparent Mexican ancestry.' The court ruled that the government's interest in protecting the border outweighed the minimal inconvenience to motorists.

But Representative Beto O'Rourke, the Texas Democrat who represents the border city of El Paso, said that because the United States was so diverse, such policies unnecessarily expose millions of people to being stopped. 'How can race help a Border Patrol agent or customs officer do a better job in a city like El Paso, where 85 percent of the people are Hispanic?' Mr. O'Rourke said.

Last year, the Border Patrol settled a racial-profiling lawsuit in which Washington state residents accused border agents of racial profiling while making traffic stops near the Canadian border. The government admitted no wrongdoing but agreed to retrain its agents on the profiling rules.

Like the existing rules, the new guidelines prohibit federal agents from relying on broad stereotypes - that members of a certain race are more likely to deal drugs than others, for example. But the authorities can consider race when responding to specific leads, such as when a witness describes a gunman as tall, white and blond.