Judge Finds Link Between Reward and Citizen's Stop

, New York Law Journal

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A border patrol agent checks a vehicle for people who are in the U.S. illegally.
A border patrol agent checks a vehicle for people who are in the U.S. illegally.

ALBANY - A federal judge said he finds it "altogether plausible" that a U.S. Office of Border Patrol policy of rewarding agents for arresting immigrants living in the country illegally could have led to the improper detention of a U.S. citizen with an Hispanic surname whose suit is pending before him.

Northern District Judge Lawrence Kahn rejected a government motion to remove Kevin Oaks, the agent-in-charge of the Border Patrol's upstate New York regional office, as a defendant in Gerardo Vazquez-Mentado's claim for violation of his Fourth and Fifth Amendment constitutional rights over his arrest and detention in Oswego in 2009.

At this stage of the litigation, Kahn said he finds persuasive the allegations contained in a 2013 report by the Brennan Center's Immigrant Rights Clinic at New York University School of Law and Families for Freedom.

The report detailed that between 2006 and 2011, the Border Patrol's Buffalo Sector rewarded agents with vacation, cash bonuses and gift certificates to retail stores based on the number of arrests of people suspected of being in the country illegally.

Specifically, the study showed that 12 U.S. citizens and 278 others who were later found to be lawfully present in the United States. were arrested by Border Patrol agents in Rochester between 2006 and 2010.

"The causal link between the Reward Policy and the illegal arrests is founded on the reasonable and well accepted proposition that you get what you pay for," Kahn wrote from Albany in Vazquez-Mentado v. Buitron, 5:12-cv-0797 on Jan. 29.

The judge added, "It is altogether plausible that some causal relationship exists between: (1) a policy that exclusively or primarily rewards high arrest numbers; and (2) a number of ensuing arrests without probable cause—alas, where one thing (making arrests) is rewarded and another (avoiding arrests without probable cause) is not, law enforcement officers will tend to do more of the former and less of the latter."

Kahn wrote that there is "nothing inherently problematic" about the Border Patrol setting high arrest goals as part of an initiative to find immigrants living in the U.S. illegally. But the submissions by Vazquez-Mentado and the government so far contains no information that suggests the Border Patrol balanced its quest for arrests with a requirement that agents have probable cause to stop suspects, Kahn said.

"A Fourth Amendment violation is stated where, as here, a plaintiff alleges that high arrest totals were incentivized with significant financial rewards, those incentives were not counteracted by rewards aimed at ensuring the legality of arrests, and a pattern of illegal arrests (including the plaintiff's) resulted," Kahn wrote.

The judge said he was not persuaded to dismiss Oaks as a defendant because, as the government argued, awards to Border Patrol agents in the Oswego office were not detailed in the Brennan Center-Families for Freedom report as were those given to agents based in the patrol's Rochester office.

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