By: Anna Dellit
Edited By: christine mao and luke vredenburg
President Biden recently ordered the Department of Justice and Homeland Security to revise their anti-discrimination policies by November 21 2022. This follows criticisms regarding the loopholes of the 2014 anti-discrimination policies that “allow federal law enforcement to profile people based on race, religion, ethnicity, and national origin in certain contexts.” [1] Senator Cardin, the author of the End Racial and Religious Profiling Act (ERRPA) and the Law Enforcement Trust and Integrity Act (LETIA), urges the DHS and DOJ to heed to Biden’s order due to the fact that “Discriminatory profiling is unjust in its targeting of minority communities, ineffective in stopping criminal or terrorist activities, inconsistent with American values, and wasteful of limited government resources.” [2] In a letter to Alejandro Mayorkas, the Secretary Department of Homeland Security, Senator Cardin lists five revised guidelines to eliminate discriminatory profiling, including “Explicitly apply updated DOJ and DHS guidance to federal law enforcement agencies, as well as state and local law enforcement agencies that participate in joint operations or partnerships with federal law enforcement agencies.” [3] This is extremely important, as the ACLU of Michigan found “that although people of Latin American origin make up only 16.8% of Michigan’s foreign-born population, 84% of all noncitizens apprehended by Border Patrol there were originally from Latin America.” [4] Religion similarly evokes discriminatory profiling at the borders and airports. Abdirahman Aden Kariye, a Muslim from Minnesota who sued U.S. officers after continually being questioned about his religion when he traveled, found the experience stressful and intimidating enough to “stop wearing a Muslim cap known as a kufi, and to stop carrying religious texts when he travels internationally to avoid additional scrutiny.” [5] The unsolicited questioning and investigation to determine if he was a “safe person” based on his religion is unconstitutional. [6]
Secretary Alejandro Mayorkas has the responsibility of setting the framework to makediscriminatory profiling impermissible across all local and federal levels. This includes wrongfully putting someone on a terrorism watchlist, tagging someone as a security risk, and investigating someone without evidence of criminal activity. These discriminatory practices cause consequences for people in terms of immigration, travel, employment, and can be seen as violation of their rights. [7] This all follows the discontinuation of the “China Initiative,” a form of discriminatory profiling against Asian Americans that were put in place during the Trump administration. “China Initiative” was a “national security program designed to focus resources on prosecuting economic espionage and trade secret theft by Chinese government agents” that ultimately led to“increasingly targeted fundamental research scientists of Chinese ancestry.” [8] The initiative led to wrongful investigations into academic scientists and professors with Chinese ancestry for minor paperwork errors. While the initiative was denounced and extinguished earlier this year,Senior Staff Attorney of the ACLU’s National Security Project Patrick Toomey believes that its termination “won’t prevent discrimination from seeping into the FBI’s investigations of Asian Americans and others going forward. Getting rid of the name is not enough. To ensure this discriminatory program comes to an end once and for all, the Biden administration must fundamentally reform the longstanding Justice Department policies that enable racial profiling in the name of national security.”[9] The continuation of discriminatory profiling across different ethnicities, races, and nationalities, harms the integrity of the United States in its ability to protect its citizens, and detracts from any anti-discriminatory efforts moving forward. Biden’s order to the Department of Justice and Homeland Security is a first step in a long process to ensure the dignity and safety of all people in America.
Notes:
“ACLU Commends Biden Administration for Ending Discriminatory ‘China Initiative," but Fundamental Reforms Are Still Needed.” American Civil Liberties Union, February 7, 2022.
https://www.aclu.org/press-releases/aclu-commends-biden-administration-ending-discrim inatory-china-initiative-fundamental.
Cardin, Benjamin L. Letter to Secretary Alejandro Mayorkas and Attorney General Merrick Garland. “Urge DHS and DOJ to Adopt Stronger Guidance Against Discriminatory Profiling,” November 17, 2022.
https://www.cardin.senate.gov/wp-content/uploads/2022/11/Cardin-to-DHS-DOJ-re-Profi ling-Guidance-11.17.2022.pdf
“Discriminatory Profiling.” American Civil Liberties Union, November 8, 2022. https://www.aclu.org/issues/national-security/discriminatory-profiling.
German, Michael. “End of Justice Department's 'China Initiative' Brings Little Relief to U.S. Academics.” Brennan Center for Justice, September 10, 2022.
https://www.brennancenter.org/our-work/analysis-opinion/end-justice-departments-china initiative-brings-little-relief-us.
Patel, Faiza. “Discriminatory Profiling Needs to End at Homeland Security.” The Hill. The Hill, September 10, 2022.
https://thehill.com/opinion/civil-rights/3637216-discriminatory-profiling-needs-to-end-at homeland-security/.
Yang, Maya. “Muslim Americans Sue over US Border Officers' 'Invasive' Questions on Religion.” The Guardian. Guardian News and Media, March 26, 2022.
