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. (Scott Olson/Getty Images)

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.

Both were under the command of Oaks and the Border Patrol’s Buffalo Sector station, which is in charge of six offices in 25 counties and two states along the U.S.-Canadian border, Kahn said.

“It is entirely plausible that, if officers in one USBP [U.S. Border Patrol] Buffalo Sector station were induced by the Reward Policy to frequently arrest without probable cause, officers in another were as well,” Kahn wrote.

Name Misspelled

Vazquez-Mentado was pulled over while driving with his wife and two children near his home in Oswego. Border Patrol agents Morgan Buitron and Javier Lorenzo, contended that he was Gerardo Vasquez-Mentado, who had been arrested in Texas in 1993 whom authorities believed to be in the U.S. illegally.

Agents ignored Vazquez-Mentado’s protestations that, as his driver’s license indicated, his name was spelled differently than the man they claimed they were seeking. Vazquez-Mentado’s pistol permit also failed to convince them of his identity.

Vazquez-Mentado, who had been a U.S. citizen since 1998, was released about 90 minutes after his vehicle was pulled over when his wife brought his Naturalization Certificate and U.S. passport to the Oswego Border Patrol office.

Advocates for those in the United States illegally say Vazquez-Mentado’s treatment reflects a Border Patrol policy of aggressively requesting to see the “papers” of people they stop near U.S. border areas on the unfounded suspicion of entering the country illegally.

Walter Ruehle, an attorney for the Legal Aid Society of Rochester who represents Vazquez-Mentado, said his client was “definitely pleased” with Kahn’s ruling and hoped it strengthens his claim as the case moves toward trial.

David Irving of the Worker Justice Center of New York’s office in Rochester is Ruehle’s co-counsel.

Katherine Goettel of the U.S. Justice Department’s Office of Immigration Litigation in Washington is defending the Border Patrol.

According to the Brennan Center-Families for Freedom report, which was largely based on Border Patrol policy disclosures gleaned from earlier litigation, the reward program for agents began in 2003.

Cash bonuses for high arrest rates in the Buffalo sector ranged from $1,500 to $2,500 a year in 2009 to 2011. Agents also earned vouchers for up to $100 a piece for use at retailers such as The Home Depot, and they also could receive vacation time.

Last year, Kahn rejected the government’s attempt to dismiss based on the argument that agents were acting in good faith when they mistook Vazquez-Mentado for the similarly named Vasquez-Mentado.

“In a nation of immigrants and a nation where individual liberties are sacrosanct, such a result would be unacceptable,” Kahn wrote (NYLJ, June 13, 2013).

Since Kahn’s earlier ruling, Vazquez-Mentado filed an amended complaint that included information from the Brennan Center-Freedom for Families report.

Families for Freedom is a Manhattan-based group that provides legal services to immigrants facing deportation.