2 US citizens confronted by Border Patrol agent for speaking Spanish settle lawsuit

Two U.S. citizens have settled a lawsuit with Customs and Border Protection after they were detained by a Border Patrol agent who heard them speaking Spanish at a convenience store in Havre, Montana, and demanded that they show identification.

The monetary settlement was announced on Tuesday by the American Civil Liberties Union, which filed the lawsuit on behalf of the two women alleging their constitutional rights were violated.

The amount of the settlement was not disclosed at the request of the two women, said Cody Wofsy, a staff attorney with the ACLU Immigrants' Rights Project in San Francisco. 

The case shows that the attitudes of some agents in the Border Patrol are "completely out of step" with the growing number of Spanish speakers in all parts of the United States, Wofsy said.

"To have this idea that because our clients were speaking Spanish, that that told the agent anything at all about who they were, where they were from, what their immigration status was, just speaks to a complete misunderstanding of the diversity and demographics of our country," Wofsy said.

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A CBP spokesman said in a written statement that the settlement should not be construed as an "admission of liability or fault on the part of the United States.”

CBP has a nondiscrimination policy that prohibits the consideration of race or ethnicity in law enforcement, investigation and screening activities "in all but the most exceptional circumstances," the statement said

The agency's standards of conduct also prohibit bias-motivated conduct and explicitly forbids employees from acting in a manner "which improperly takes into consideration an individual's race, color, age or sexual orientation."

CBP officers and agents are trained to enforce U.S. laws uniformly and fairly and they do not discriminate based on religion, race, ethnicity, sexual orientation, religion, sex, national origin, disability or union membership or union activities, the statement said.

“CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe," the statement said.

Texts from agent's phone contained racist and derogatory language

The two women, Ana Suda and Martha "Mimi" Hernandez, were standing in line waiting to pay for groceries in May 2019 when Paul O'Neill, a Border Patrol agent, approached them, commented on Hernandez's accent and asked where they were born. The women told O'Neill they were born in Texas and California, respectively.

The agent then ordered them to show identification, and they handed him their valid Montana driver's licenses.

"Ma'am, the reason I asked you for your IDs is because I came in here I saw that you guys were speaking Spanish which is very unheard of up here," the agent told the women outside the store after one of them took out her cellphone and began recording the incident, according to the lawsuit.

Suda and Hernandez were both born in the United States, Suda in El Paso and Hernandez in El Centro, California.

They grew up speaking Spanish and are fluent in English and Spanish. 

Hernandez moved to Havre in 2010, Suda in 2014. At the time, they worked as certified nurse assistants at the Northern Montana Care Center in Havre, a town of about 10,000 people in north-central Montana near the Canadian border. 

"We stood up to the government because speaking Spanish is not a reason to be racially profiled and harassed. I am proud to be bilingual, and I hope that as a result of this case CBP takes a hard look at its policies and practices," Suda said in a written statement. "No one else should have to go through this again."

Evidence uncovered through the lawsuit revealed text message exchanges from O'Neill's cellphone that contained racist and derogatory language.

In one exchange, a text message reads, "Haha hey man what's going on?"

"Busy working to the max..thank God for Trump the national constipation has been relieved were (sic) back to doing some good numbers..Quit harassing little beaner girls..," the reply says followed by three crying face emojis. The text contains a derogatory slur for people of Mexican descent. 

According to the ACLU, the lawsuit also revealed that O'Neill belonged to a now-defunct secret Facebook group called the "I'm 10-15" where Border Patrol agents and former agents exchanged derogatory comments and jokes about the deaths of migrants and Latino members of Congress visiting a detention facility in Texas. 

The ACLU also obtained a video statement of a CBP supervisor admitting that Border Patrol agents routinely treated people speaking Spanish with suspicion in Havre, which is predominantly white but has a growing Latino population.

"I didn't see anything harassing about it," the CBP supervisor says, referring to the Border Patrol agent's actions at the convenience store. "You know, even on the video, it was like — What are you complaining about? You are from El Paso. You do this every day."

"It is a small place," the CBP supervisor continues. "And we have a lot of agents here, and nobody really has much to do. In reference to that, I was sitting at the mall off duty with my family. I'm sitting there at the restaurant, I look up it's — There's two Mexicans. Maybe I should call about this. I start reaching for my phone and about 20 feet behind them was another agent, right behind them on the phone.   

"And it's — really it's like that. If there is somebody speaking Spanish down here, it's like all of a sudden you've got five agents swarming in like 'What's going on?' So Havre is kind of like that."

The two women have left Havre for fear of their families' safety after receiving local backlash for coming forward and speaking out against the Border Patrol agent's actions, Caitlin Borgmann, executive director of the ACLU of Montana, said in a statement.

Reach the reporter at daniel.gonzalez@arizonarepublic.com or at 602-444-8312. Follow him on Twitter @azdangonzalez.

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