Is the use of language other than English &#39;Reasonable Suspicion&#39; for detention?
<p>The <a href="https://www.aclu.org/know-your-rights/border-zone/" rel="noreferrer">ACLU indicates</a>:</p>

<ul>
<li>Generally, an immigration officer cannot detain you without “reasonable suspicion.”</li>
<li>An immigration officer also cannot search you or your belongings without either “probable cause” or your consent. </li>
<li>An immigration officer cannot arrest you without “probable cause.”</li>
</ul>

<p>Media outlets (<a href="https://time.com/5682949/montana-border-patron-spanish-video-lawsuit/" rel="noreferrer">Time Magazine</a>) reports two women, who were born in the U.S. and are citizens,  were speaking to one another in Spanish while standing in line to buy eggs and milk in a convenience store in Havre. The agent, Paul O’Neill, entered the store, overheard them and <strong>kept them in the parking lot for approximately 40 minutes while he checked their identifications</strong>.</p>

<p>“Ma’am, the reason I asked you for your ID is because I came in here and I saw that you guys are speaking Spanish, which is very unheard of up here,” O’Neill said in the video.</p>

<p>Did the agent have "reasonable suspicion" to detain the women based on language (assume he did not understand Spanish for this exercise)?</p>

<p>What precedent, if any, is there to justify such a lengthy detention?</p>

<p>It is intuitively crazy to think that speaking Spanish in Montana is evidence of a crime. Still, we will have to wait to see what the courts rule, if it goes that far. We should start with <a href="https://supreme.justia.com/cases/federal/us/392/1/" rel="noreferrer">Terry v. Ohio</a>, 392 U.S. 1, which found that</p>

<blockquote>
  <p>in justifying the particular intrusion, the police officer must be
  able to point to specific and articulable facts which, taken together
  with rational inferences from those facts, reasonably warrant that
  intrusion. The scheme of the Fourth Amendment becomes meaningful only
  when it is assured that, at some point, the conduct of those charged
  with enforcing the laws can be subjected to the more detached, neutral
  scrutiny of a judge who must evaluate the reasonableness of a
  particular search or seizure in light of the particular circumstances.
  And, in making that assessment, it is imperative that the facts be
  judged against an objective standard: would the facts available to the
  officer at the moment of the seizure or the search "warrant a man of
  reasonable caution in the belief" that the action taken was
  appropriate?</p>
</blockquote>

<p>The Montana officer did "articulate" a reason, in saying "Ma’am, the reason I asked you for your ID is because I came in here and I saw that you guys are speaking Spanish, which is very unheard of up here". In articulating an excuse, the officer has not passed the test of providing "rational inferences from those facts". Of course, the law also does not require an officer to explain his reasoning to the suspect. In <em>Terry</em>, the officer</p>

<blockquote>
  <p>had never seen the two men before, and he was unable to say
  precisely what first drew his eye to them. However, he testified that
  he had been a policeman for 39 years and a detective for 35, and that
  he had been assigned to patrol this vicinity of downtown Cleveland for
  shoplifters and pickpockets for 30 years. He explained that he had
  developed routine habits of observation over the years, and that he
  would "stand and watch people or walk and watch people at many
  intervals of the day." He added: "Now, in this case, when I looked
  over, they didn't look right to me at the time."</p>
</blockquote>

<p>The reasoning in these cases is quite parallel: an appeal to a subjectively felt unusualness of a circumstance. There may be a factual dispute over how often Spanish (or Nakhota) is spoken in public in Havre, but we may assume that Spanish is spoken much less often than English. Still, a well-grounded belief that a person speaks Spanish (let us stipulate that it is fluent) is not at all evidence that a person has committed a crime. The inference is no more rational than McFadden's inference from "I don't know you" to "You must be a criminal". </p>

<p>See <a href="https://supreme.justia.com/cases/federal/us/422/873/" rel="noreferrer">US v. Brignoni-Ponce</a>, 422 U.S. 873, which held that</p>

<blockquote>
  <p>an officer whose observations lead him reasonably to suspect that a
  particular vehicle may contain aliens who are illegally in the country
  may stop the car briefly, question the driver and passengers about
  their citizenship and immigration status, and ask them to explain
  suspicious circumstances... To allow roving patrols the broad and
  unlimited discretion urged by the Government to stop all vehicles in
  the border area without any reason to suspect that they have violated
  any law, would not be "reasonable" under the Fourth Amendment...The
  Fourth Amendment therefore forbids stopping persons for questioning
  about their citizenship on less than a reasonable suspicion that they
  may be aliens.</p>
</blockquote>

<p>The court has</p>

<blockquote>
  <p>refused to find that Mexican ancestry alone supported such a "founded
  suspicion"</p>
</blockquote>

<p>Speaking Spanish is as much evidence of foreign ancestry as speaking English is (referring to the Nakhota situation, ethnic Nakhota speak English all the time, but <em>they</em> do not have foreign ancestry). See also <a href="https://caselaw.findlaw.com/us-9th-circuit/1374519.html" rel="noreferrer">US v. Manzo Jurado</a></p>

<blockquote>
  <p>Given...inability to speak English, proximity to the border, and
  unsuspicious behavior - law enforcement lacked reasonable suspicion
  that Appellant and his co-workers were in this country illegally.</p>
</blockquote>

<p>Moreover, the Manzo Jurado event took place in Havre MT. So the factual question of whether hearing Spanish spoken in Havre is already on the record. Not only is it spoken in Havre, it is spoken by an individual who spoke no English, and it was found by the court to not constitute reasonable suspicion.</p>

<p>Given that the USA is a nation of immigrants I don't see that speaking a foreign language 'probable cause' for detention. As more than likely as these women will live close to or within a an ethnic community. Hence I see there being no 'reasonable suspicion' but I do see an element of prejudice here.</p>
<p>In fact recently, in the UK, an army barracks has been used as a detention with personnel assigned to aid the immigrants asked to sign a non-disclosure agreement and Bella Sankey, of Detention UK accused the authorities of a cover-up, saying:</p>
<blockquote>
<p>The Official Secrets Act is there to protect state secrets and national interests and to target people who have arrived in the UK looking for sanctuary ... we have heard of cases of self-harm, suicide ... and unsanitary and cramped conditions ... and this means we need more, not less information about this reckless experiment.</p>
</blockquote>
<p>Exactly.</p>

united-states immigration detention