US border agents charged with rights abuse. Customs, INS forces walk legal tightrope in bid to catch illegals and drug smugglers

Charges that members of the United States Customs Service and the Immigration and Naturalization Service regularly discriminate against, and sometimes even brutalize, Hispanics along the US-Mexico border are denied by agency officials. But critics say that INS agents systematically fail to inform illegal aliens of their rights and the Customs Service uses its powers for political intelligence gathering and illegal seizures. They also charge that American citizens who appear to be Hispanic are harassed.

Customs and INS spokesmen point out the growing burden of trying to stem illegal immigration and drug smuggling. While admitting that mistakes are made, they dispute the extent of civil rights violations charged.

Making the charges are numerous lawyers and watchdog groups. Louis Menendez, a federal public defender in Laredo, Texas, says there is ``a cowboy cop mentality that translates into: `Let's clear the streets, make busts, and let the courts sort it out.'''

Mr. Menendez adds: ``There is a problem with drugs and with illegal immigration. But in the same soup there is also a problem with lack of constraints.''

Another public defender, a colleague of Menendez, Joe Sepeda, says bluntly, ``The Constitution ends in San Antonio.''

But Harold Ezell, INS commissioner for the Western region, says: ``I think these claims about civil rights abuses are ridiculous. I believe those who say that civil rights are being violated are the same people who say borders should be wide open and we shouldn't have any laws to protect them.''

The agents who control the border are under tremendous strain. In 1987, about 190 million aliens and citizens passed through points of entry from Mexico into the US. There were 1,550 Customs and INS agents to handle the flow. They must not only sift the illegals from the lines, but try to stem the flow of narcotics. About 2,900 Border Patrol agents cover the area around and between ports of entry, though there will be 600 more added to the Border Patrol by the end of this year.

Civil rights activists say they are hearing of more cases of abuse than ever before. They blame the increase, in part, on the 1986 Immigration Reform and Control Act. Among other things, the act increased manpower and doubled the agency's budget. Activists predict that after the INS completes its amnesty program for illegal aliens, more money will be channeled to enforcement and that this will lead to more abuses. Much of the law governing border agents remains unclear, say the critics, thus giving agents unchecked discretion. They also have extraordinary powers to control smuggling and illegal immigration.

Elsewhere in the US, the Fourth Amendment protects against warrantless searches and seizures. But on the border, agents are not bound by ``probable cause'' - the standard requiring that law-enforcement officials have a reasonable suspicion of wrongdoing before acting.

``The balance between individual rights and the government's right of effective immigration-law enforcement is heavily weighed toward the latter,'' says Maria Jimenez, director of an immigration law-enforcement monitoring project of the American Friends Service Committee. At stake, critics say, are such freedoms as the right to political opposition.

In January, the New York City-based Center for Constitutional Rights disclosed information obtained through the Freedom of Information Act showing that the Federal Bureau of Investigation had conducted an extensive surveillance of Americans opposed to Reagan administration policies in Central America. Some Americans have discovered that the FBI collected that kind of information from searches by Customs agents.

Two and a half years ago, Adam Eigner, a 24-year-old University of Michigan student, was on his way home from studying Spanish in Nicaragua when a Customs agent took him aside at Dallas-Fort Worth international airport. Mr. Eigner says the agent opened and searched his luggage as another agent went through his papers, which included a letter of acceptance to his language school and a receipt for medical supplies he had delivered, legally, to a Nicaraguan aid organization. Without explanation, Eigner says, one of the agents walked away with his papers.

Eigner says he waited an hour for the return of the documents and then raced to catch his connecting flight. A year and a half later, to his astonishment, copies of his papers - stamped SECRET - turned up in an FBI file obtained by the Center for Constitutional Rights. An attached memo showed two copies had been disseminated to each of 15 FBI bureaus.

Eigner is not alone, says Mike Ratner of the Center for Constitutional Rights. Since August 1984, the center has received 71 reports of people who have had books, personal letters, notes, and address books taken or copied after border or custom checks. These reports include people who have discovered documents missing after checks. The group estimates that less than one-third of incidents are reported to it. Other people have had their names recorded in the computerized Treasury Enforcement Communication System, which border officials use to keep track of criminal suspects who might try to enter the US.

At least 100 Americans have complained that FBI agents have paid visits to their homes or offices and that they were faced with IRS audits soon after their return from Nicaragua, the Center for Constitutional Rights says.

Despite statements made by Customs agents under oath that in 1986 there was a ``Nicaragua alert'' in the Treasury's computer system, the agency denies it has had a policy to target Americans returning from Nicaragua. Those returnees are more carefully scrutinized because they are returning from a country that is under a trade embargo, US Customs spokesman Dennis Shimkoski said.

After being told of the type of documents copied and distributed in the Eigner case, however, Mr. Shimkoski admitted that the Customs agents who seized them overstepped their authority.

According to Shimkoski, Customs agents need to know 400 to 1,000 complex laws involving 40 different agencies to do their jobs. Asked to clarify policy, he himself needed several hours of repeated queries to officials at Customs headquarters in Washington, D.C. ``This really is a problem,'' he said. ``We've got so many laws on the books they [the agents] have to enforce. Frankly, I don't know how they do it.''

Despite the vast number of regulations already on the books, there are gaps, says David Cole, also at the Center for Constitutional Rights. For instance, he points out that until the public-interest firm sued the agency in 1986 on behalf of a Kansas City journalist and a Los Angeles nurse, Customs had no written directives on scrutiny of documents. The decision on whether or not to seize documents was left to the discretion of agents, he said. Only after the lawsuit did the agency develop directives to specify what types of documents agents can legally scan, copy, seize, and disseminate.

``Agents have no right to look into your political views, personal correspondence, literature, or books unless they are seditious or evidence of a crime,'' says Andy Silverman, a law professor at the University of Arizona in Tucson and an expert on immigration law. ``Someone who has a letter about how wonderful the Sandinistas are can bring it in, because citizens still have First Amendment rights at the border. But if it is a letter setting up an operation to blow up a nuclear plant in the US - well, that's a little different.''

Despite the new directives, Mr. Cole believes the seizure policy is still vulnerable to abuse. As Customs spokesman Shimkoski confirms, agents rarely obtain court orders necessary to permanently legally seize documents. In addition, the directives impose no restraints on the Customs Service's practice of sharing information obtained from temporarily seized documents with other federal agencies. As a result, the directives do not curb FBI visits and Internal Revenue Service audits that critics suspect are prompted by information collected by Customs.