Strangers on a Train

U.S. Border Patrol agents are boarding Amtrak to question passengers in Rochester, raising concerns among everyone from immigrants to civil-liberties advocates

By Darryl McGrath

“What is your citizenship?”

The uniformed man walked down the aisle of the train, stopping at each seat and posing the question to passengers over and over again.

“What is your citizenship?”

About 10 minutes earlier, Amtrak’s Lake Shore Limited had pulled out of the Rochester station en route to Albany on an afternoon in late May. Passengers stirred, looked out at railyards and warehouses, and then settled back for one more inexplicable delay on an overnight ride from Chicago that was already behind schedule. Then the man in the khaki uniform entered the car and began questioning passengers, with no explanation, as people watched, riveted by his progress down the aisle.

“What is your citizenship?”

He paused to examine the documents of a French-speaking woman, passed over a sleeping blonde woman without disturbing her, but did question the brown-haired, brown-eyed woman awake next to her. He checked the passport of a young man who spoke accented English.

The man was a Border Patrol agent of U.S. Customs and Border Protection, which is a division of the federal Department of Homeland Security. Three months ago, Border Patrol agents started making frequent random searches—up to several times a week—on the Lake Shore Limited during stops in Rochester and, occasionally, in Syracuse. The Lake Shore Limited, which runs between New York City and Chicago, never crosses the United States-Canada border, but in both Rochester and Syracuse, it is within the 100-mile margin of the border inside the United States in which these agents can operate.

During the incident in late May, a number of passengers observed that the train was outside of the Rochester station whil the search was going on. While the possibility that federal agents are actually halting passenger trains between stations is worrisome to civil-liberties advocates, the Border Patrol insists that this particular search was slightly out of the ordinary. According to Border Patrol spokesman Mike Przybyl, the agents boarded at the Rochester station platform, and the Amtrak crew thought they had already completed their search and gotten off at the station. It wasn’t until the train was well under way that the crew realized the agents were still on board, and stopped the train so that they could disembark.

“As policy and normal operations, unless it’s an emergency, we don’t stop a public conveyance,” Przybyl said.

The Border Patrol opened a satellite office outside of Rochester 18 months ago, as part of the agency’s increased operations following the September 2001 terrorist attacks. Agents started the unannounced searches of the train without informing Amtrak about the stepped-up enforcement. Since then, agents have removed an unknown number of people from the Lake Shore Limited, most of them for questions about their immigration status, Amtrak officials say.

As word of the searches and seizures has spread, so have concerns about the incursion of federal authority into the everyday lives of U.S. citizens. A number of attorneys in upstate New York say they also fear that innocent people could be swept up in the Amtrak searches, especially in a region that has a large population of immigrants—many of them Latin American farm workers and not all of them prepared to unexpectedly defend their immigration status on a train that is not crossing the border.

Now the word is getting out in the immigrant communities of upstate New York: If you’re illegal, for God’s sake, don’t get on Amtrak. And if you’re legal, be sure you can prove it, right there on the train.

Sandy Cuellar Oxford, chair of the Black and Latino Democratic Committee in Sullivan County, is sending that message to farm workers and advocacy groups for upstate immigrant communities, following the arrest of a good friend on the Lake Shore Limited in late May. He was an El Salvadoran native who had become such an established part of his adopted hometown of Liberty that few people who knew him realized that he had been living without a green card for more than a decade. When Oxford last got word of him, he was in a federal detention center in Batavia, awaiting deportation to El Salvador. His brother’s murder there during the civil war in the 1970s prompted his decision to come to the United States in the first place, Oxford says.

Oxford, a native-born U.S. citizen whose mother was a Columbian immigrant, says she would think twice about traveling the Lake Shore Limited nowadays.

“If I don’t have my license with me, what would they do with me?” she asks. “I’m native-born, and I look like an absolute immigrant.”

Even those whose immigration status is in order can find it jarring to unexpectedly be questioned by an armed federal agent, especially when the questions come not at the usual border checkpoints or an airport, but on a train 30 miles from the invisible border that cuts through Lake Ontario.

Border Patrol officials say the Amtrak searches are nothing out of the ordinary and that agents have had a longstanding practice of searching trains at the station in Depew, just outside of Buffalo.

“I think any perception of an increase in enforcement can be attributed to the fact that we have agents in Rochester that we didn’t used to have,” says Border Patrol Spokesman Mike Przybyl. “The agents there are all seasoned agents, and they look at this as part of their regular patrol.”

Amtrak is cooperating with the Rochester searches, after some initial exasperation over the fact that Border Patrol started them without so much as a by-your-leave to Amtrak.

“We understand there’s a need for them to be doing what they’re doing,” says Karina Romero, an Amtrak spokeswoman. And, given that there have been terrorist bombings of commuter and passenger trains in England, Spain and India in the last few years, she says, “Rail security is a huge issue for the United States right now. What we want our passengers to know is that we’re doing this to keep them safe.”

But for passengers such as the young man whose passport was examined by the agent on that May afternoon, the Rochester searches are terrifying, not reassuring. He was a Brazilian college student in the United States on a three-month fund-raising effort for an aid organization. A customs official at the airport in Atlanta had mistakenly entered his length of stay on his passport as six months, and that official’s handwritten correction had caught the border-patrol agent’s eye. The student said afterward that he feared he might be taken off the train and detained for further questioning.

“They basically can do whatever they want with you,” he said.

Actually, they can’t, Przybyl says. No agent would remove a passenger from the train solely on appearance or that passenger’s refusal to answer the citizenship question. Despite that assurance, the practice of regularly searching trains traveling the interior of the country is still such uncharted territory that even experienced immigration attorneys can’t say what would happen if an irate passenger blew off an agent’s questions aboard Amtrak, in a fit of pique falling under the category, “I’m mad as hell and I’m not going to take it anymore.”

“Can they stop people? Yes,” says Joanne Macri, an immigration attorney in Buffalo who is also on the board of the New York State Defenders Association, which seeks to improve legal representation for indigent clients.

“Can people refuse? Yes. Now, if you refuse, is the refusal enough evidence for them to pick you up? That’s where their training kicks in,” Macri says. “I think the refusal can possibly lead to a suspicion that someone is in the country illegally. They’re trained at trying to see an individual and determine if it’s indignation or evasiveness.”

Macri’s work has brought her into regular contact with Customs—which handles checkpoints at the U.S. borders—and Border Patrol, which has historically worked within the 100-mile interior margin of the border. (Prior to the creation of the Department of Homeland Security, the two functions operated separately under different federal agencies: Customs was assigned to the Treasury Department, and Border Patrol was under the Justice Department.) And over the years, Macri has developed an adversarial respect for the unapologetically efficient way that Border Patrol agents do their job. But she also has some concerns about this visible increase of their presence.

“The bottom line is, they’ve been around for a long time,” she says. “What they’re doing is extending their jurisdiction, within their legal rights. I respect the fact that authority must exist, as an attorney and an individual. But one of the things that concerns us is the possibility for abuse.”

Teresa Miller, a law professor at the State University of New York at Buffalo, sees the train searches as a step further along what she calls a “slippery slope” of increased federal supervision over ordinary citizens traveling in their own country.

“I find it very troubling that citizens could now be required to carry identification to prove that they are citizens,” Miller says.

And while both Amtrak and the Border Patrol defend the necessity of the searches, they may end up discouraging people from using trains, just as energy costs are hitting an all-time high, says David Peter Alan, an attorney in South Orange, N.J., and a nationally known advocate for public-transit systems. Alan chairs the Lackawanna Coalition, a rail-advocacy group in New Jersey, and sits on the board of the Rail Users’ Network, a national rail-advocacy group.

Alan happened to be riding the Lake Shore Limited in May, on the same train as the young Brazilian student whose passport raised questions. Alan was sitting in a lounge car talking with crew members when the Border Patrol was on the train, but agents never approached him. He isn’t happy about the searches in Rochester, given that Amtrak is already the target of considerable criticism by the federal government, and any situation that could further reduce Amtrak’s usage will just add fuel to the argument that it isn’t fulfilling its mission.

“It is intrusive, it is invasive,” Alan says of the searches. “And people are going to think, ‘If I’d taken the car, I wouldn’t have to go through this.’ ”

Searches of trains have long been used by other governments as a way to root out undesirables and fugitives. During World War II, trains traveling through Vichy France were often death traps for Jews trying to escape Nazi Europe on false documents. There are few places to run and hide on a train, and getting off a train that is stopped any distance from the platform without being detected is virtually impossible.

Miller recalled traveling on a train in Luxembourg a decade ago. She was part of a group of passengers from different countries who were chatting amiably together, and one of those passengers was from Turkey. An official began moving through the car to check documents, and stopped to question the Turkish passenger.

“All of a sudden, his answers were not satisfactory, and they hauled him off the train,” Miller says. “It was very chilling. They waited until the train had just left the station. It’s a very different feeling to have something like that happen in the United States. So it sounds like it’s a paradigm shift, a different way of thinking.”

The New York Civil Liberties Union has received one complaint from an Amtrak passenger about the border patrol searches, says Executive Director Donna Lieberman. That complaint alerted the NYCLU to the practice, and the agency is trying to gather more information about it now.

“It appears to be yet another example in a growing list of concerns about people’s ability to move about without government interference,” Lieberman says. “This is a matter of deep concern, and we’re trying to get to the bottom of what this means, in terms of both policy and practice.”

Jonathan Gradess, executive director of the New York State Defenders Association, had a more blunt reaction: The terrorists have won, he says, if people are willing to submit to interrogations without warning and other agencies are willing to help the government pursue such policies.

“We have examples all over the state where the cops are in cahoots with the Department of Homeland Security,” Gradess says. “Everybody since 9/11 has been going crazy. The other thing is, if I’m a terrorist, and I hear this is going on, the first thing I’m going to do is move into the interior of the country.”

Gradess’ group has seen a growing pattern in which local law enforcement officials in upstate New York act as willing extensions of federal immigration and Border Patrol agencies. Without a memorandum of understanding between local and federal authorities specifically setting out such an arrangement, this practice is at best questionable, Gradess says.

But Gradess says that examples of such informal cooperative arrangements abound: The judge who dismissed a case before it had been adjudicated so that the defendant could be turned over to immigration authorities; the police officers who asked the Latino- looking occupants of a car to show a green card before they asked for a driver’s license; and the local law-enforcement officials who asked the Department of Homeland Security, of all places, to provide an interpreter for a Spanish-speaking arrestee.

“I think this is fascism, or it is incipient fascism, because we are creating a police state,” Gradess says.

Amtrak officials were baffled when the searches started in early spring and more than a little exasperated at the delays they caused.

“They never used to board that train, and it doesn’t cross the border,” Amtrak spokeswoman Karina Romero said in June, just before Amtrak police met with Border Patrol officials. “We didn’t even know it was going to happen. The on-time performance had been affected.”

Border Patrol officials met with Amtrak police June 27—at the request of Amtrak—to discuss the Rochester searches. By the time Amtrak requested the meeting, the searches had been under way for at least two months.

Besides the Lake Shore Limited, several Amtrak trains travel an east-west route each day through upstate New York. One of these, the Maple Leaf, crosses the border into Canada at Niagara Falls. Passengers on the Maple Leaf have always been required to go through Customs at the border, but Border Patrol has never searched the Maple Leaf or the other Empire Service trains on their way across upstate, Romero says. Prior to the Rochester searches, Border Patrol searched the Lake Shore Limited only very rarely, she says.

The Border Patrol is not conducting searches of Amtrak trains in the Southwest, Romero says. The only Amtrak train operating within the Border Patrol’s 100-mile margin of the U.S.-Mexico border is the Sunset Limited, when it goes through El Paso, Texas. The Border Patrol does not search the Sunset Limited, Romero says, and she does not know why. She surmises that it might be because Amtrak has strict requirements for the identification that passengers can use to buy a ticket (top choices: a passport or a U.S. driver’s license), and that part of the country is more likely to have immigrants who just “swam across or just came across” and do not possess the required identification.

Also, a number of the Amtrak stops in the Southwest are in desolate locations—sometimes marked only by a bench and a shelter. That makes it less likely that an illegal immigrant would walk to such a station stop and then stand there in the desert heat, possibly as the only person waiting to get on board, Romero says.

However, based on information that Amtrak police learned at their June 27 meeting with Border Patrol, the Rochester searches are likely to continue, Romero says. Amtrak does not keep records on how many people have been removed from the Lake Shore Limited. The searches are still done at random, without any announcement explaining who the Border Patrol agents are, or what they are doing on the train, and Amtrak has no plans to provide those explanations during the searches.

“I think that’s probably crossing a line right now we’re not prepared to cross,” Romero says. “I’m not sure how the Border Patrol would feel about our making that kind of announcement.”

For all the talk about rail safety, however, there are aspects to rail travel that cannot be controlled as easily as with airline travel. Amtrak crew members say they have seen Border Patrol agents remove a passenger but leave his luggage in the overhead rack on the train. All luggage going onto an Amtrak train is supposed to have an identification tag with the owner’s name, Romero says, but at least some passengers boarding a train last May did so without ever tagging their luggage.

Luggage involves a judgment call for Border Patrol agents. They sometimes remove the luggage belonging to a passenger they are taking off the train, if they can readily identify it, Przybyl says. Sometimes they allow the luggage to remain on board with the person’s companions, once they have searched it. And sometimes, luggage can be identified only by searching it—a situation that gets into questions of probable cause, especially if agents need to search several bags on the train belonging to different people.

All of this adds up to making train travel a difficult and annoying experience, and may not be the most effective way to guarantee safety, says David Peter Alan, the transit advocate who was on the Lake Shore Limited in May.

“I think good security is checking the tracks, checking the infrastructure,” he says. “That could be far more effective than checking the passengers.”

The Rochester Amtrak searches appear to have attracted little attention, if any, in New York’s congressional delegation. Sen. Charles Schumer’s office did not respond to a request for a comment. The office of Rep. Jim Walsh, the Republican whose 25th congressional district includes Syracuse, had not heard about the searches, and spokesman Dan Gage says it was difficult to comment on them because “we don’t know enough about Border Patrol operations to say what’s most effective, what’s most efficient.”

The office of Congresswoman Louise Slaughter, the Democrat whose district includes Rochester, also was unfamiliar with the searches. Slaughter’s staff, however, noted that she has introduced legislation into the House immigration bill that would require the Department of Homeland Security to develop a comprehensive plan for securing the northern border.

“There are clear inconsistencies in northern border security efforts,” Slaughter said in a statement released by her office. “We need a comprehensive, coordinated strategy for securing the U.S.-Canadian border—a one-size-fits-all approach just won’t work.”

For now and the indefinite future, passengers riding the Lake Shore Limited can expect random searches by Border Patrol agents and occasional seizures of passengers in Rochester. And that still begs the question: What happens if someone politely just refuses to disclose their citizenship?

An agent who was asked that question on that train ride in May replied that people have the right as citizens to refuse to answer questions. When asked how the agent would know who was a citizen exercising that right, and who was not, the agent replied that the training that Border Patrol agents receive helps them assess a person’s status.

Jonathan Gradess, of the New York State Defenders Association, is interested in seeing what happens if someone tests that agent’s assertion.

“I think there comes a time in the life of nations when people need to resist illegitimate authority,” he says. “And I think people need to resist this. At some point, people need to stand up and say, ‘No.’ ”

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