Customs officials to avoid racial profiling unless necessary to protect compelling government interest

The Acting Commissioner of Customs & Border Patrol has issued a directive prohibiting “invidious” racial profiling at Customs.  The memo, released on February 6, 2014 represents CBP’s attempt to comply with the Department of Homeland Security’s directive prohibiting government law enforcement in all spheres from engaging in racial profiling.

Under the CBP memo, Acting Commissioner Thomas Winkowski affirms CBP’s commitment to the “fair, impartial and respectful” treatment of travelers entering the United States.  He directs CBP officals from relying on racial or ethnic stereotypes except in the most “exceptional” circumstances.  The memo notes that racial profiling must also be “narrowly tailored” to promote a legitimate government interest.

At the same time, the memo expressly allows for consideration of an individual’s nationality in interacting with travelers.  The CBP memo states that someone’s country of origin is clearly tied to government interests and places no restrictions on its consideration.  The memo states that CBP officials may consider national origin when deciding whether to subject the person to additional scrutiny, searching and/or investigation.

It seems as if this wide open hole would allow for the precise racial profiling that the memo claims to prohibit.  For example, while it might be a violation of the policy to consider the fact that someone is Arab when assessing them as a threat to the U.S., the CBP officer would have free reign to consider the fact that the person was from Egypt or Saudi Arabia.  Or, CBP could not consider that someone is Hispanic, but could subject someone to additional inspection because they come from Colombia, where there is a heavy drug trade.  Is this not just an end run around the racail profiling prohibition?