2 women were detained solely for speaking Spanish. Now they’re suing the Border Patrol.

The two American women are accusing the agency of criminalizing Spanish.

Two Montana women are suing US Customs and Border Protection officers for detaining them at a gas station last year because they were speaking Spanish — the latest legal challenge to the agency’s broad authority to patrol the border zone.

Ana Suda and Martha Hernandez were questioned in May by a uniformed officer as they waited in line to buy eggs and milk at a convenience store in Havre, Montana — a tiny town 35 miles from the US border with Canada. The officer then detained the two women, who are American citizens, for 30 to 40 minutes outside by his patrol car.

Suda filmed the heated encounter on her cellphone, making headlines across the country when it went viral on social media.

Both women are nurse’s assistants and have been living and working in Havre for several years, according to the lawsuit filed Thursday in Montana federal court. The American Civil Liberties Union, which is representing the plaintiffs, says the Border Patrol officer violated their constitutional right to equal protection (and treatment) under the law, as enshrined in the Fourteenth Amendment.

Their lawyers also say the matter amounted to an illegal search and seizure under the Fourth Amendment. Their argument boils down to this: Detaining someone solely for speaking Spanish is the same thing as stopping someone solely because of their race — which is illegal.

The lawsuit says that the experience was “humiliating” to both women and that their families have since been shunned by members of the community.

“Ms. Hernandez and Ms. Suda no longer feel comfortable speaking Spanish in public, and fear that if they do so, or otherwise express their Latinx identity, they will be stopped and questioned by CBP agents,” their lawyers wrote in the complaint.

A spokesperson for US Customs and Border Protection declined to discuss the allegations with Vox on Thursday.

The case will test the agency’s broad powers to patrol the US border zone — any area within 100 miles of a land or water border — and to stop and question people they suspect of being in the country illegally. The Supreme Court has generally upheld this practice, with a few exceptions. The lawsuit also challenges long-held stereotypes about what Americans are supposed to look like and sound like in an era of fierce anti-immigrant rhetoric.

An unusual case

Suda, who was born in El Paso, Texas, had been living with her husband and their two children in Havre since 2014. Hernandez, who was born in California, had been living there since 2010 with her own family, and both worked as nurse’s assistants at the hospital in town. Havre is a predominantly white community, but has a growing Latino population, according to the lawsuit.

After going to the gym together one evening, Suda and Hernandez stopped to buy eggs and milk at the local Town Pump gas station. They were both chatting in Spanish as they waited in line to pay when a uniformed Border Patrol agent, Paul O’Neal, asked them where they were born. “Are you serious?” Suda replied, according to the lawsuit. “Dead serious,” O’Neal allegedly responded.

They told him they were born in Texas and California, and O’Neal asked them for their drivers’ licenses. They handed over their IDs and O’Neal led them outside to stand by his patrol car in the parking lot. The two women grew angry, and Suda began filming the incident

In the video, which has been viewed at least 40,000 times on YouTube, the agent calmly explains that he stopped the women because they were speaking Spanish in an area where few people do.

That upset Suda and her friend, who say they felt unfairly targeted because of their race, and because the agent seemed to be criminalizing the Spanish language. The officer asked the women to put their hands on the hood of his patrol car, and had them wait for 30 to 40 minutes until backup arrived. They were eventually released.

“There was no legitimate reason for Agent O’Neal and other CBP agents to detain Ms. Suda and Ms. Hernandez. Speaking Spanish does not establish reasonable suspicion to justify a stop and detention, much less probable cause for an arrest,” wrote their lawyer, Alex Rate, an attorney with the ACLU in Montana.

If the case gets to trial, it could determine whether or not Border Patrol agents have the authority to stop and question people in huge swaths of the country as they go about their daily lives — an alarming power that could lead to racial profiling.

Most Americans live in the so-called border zone

Recent videos of Border Patrol agents boarding Greyhound buses and Amtrak trains in Florida and New York to question passengers about their citizenship status have gone viral on social media, prompting outrage over the perceived violation of constitutional rights and fueling anxiety about an anti-immigrant crackdown.

Suda’s case is even more unusual, as she was stopped while buying groceries. The Fourth Amendment gives Americans a certain right to privacy and protection from unreasonable government intrusions and searches. But near a US border, the bar for what is considered a “reasonable” stop is far lower than for the rest of the country. Border Patrol agents can question anyone within 100 miles of a US land or coastal border about their immigration status, as long as they have a “reasonable suspicion” that the person may be in the country illegally.

Most Americans live in this so-called 100-mile zone. It covers all of Florida and most of New York state. It covers several other states entirely — including New Jersey, Delaware, and Rhode Island — the nation’s capital, and the country’s largest cities, including New York City and Los Angeles.

Suda and her friend were stopped in a town that is 35 miles from the Canadian border. And in this zone, Border Patrol agents have a lot of freedom to ask people about their immigration status.

It’s legal for agents to ask a person about their citizenship status, with some exceptions

Congress gave immigration agents enormous power when they passed the Immigration and Nationality Act of 1946. The law granted immigration agents the authority “to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” and to “board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle.” However, they could only do this “within a reasonable distance” from an external US boundary.

At first, that distance was just 25 miles. But in 1953, the Department of Justice published a rule redefining a reasonable distance to “a distance of not exceeding 100 air miles of any boundary of the United States.” In 2013, a group of senators tried to shrink the 100-mile zone to 25 miles along the northern border. The provision was added to a bipartisan immigration reform bill that passed the Senate that year, but a similar bill never made it through the House.

Over the years, the Supreme Court has upheld Border Patrol agents’ authority to stop and search people in the border zone, while also defining some limit to their powers. For example, the Court has ruled that agents must have probable cause to believe that someone committed an immigration violation to search their car in a border zone, but they only need a reasonable suspicion (a lower standard of proof) to stop and question them. If they establish a roadside checkpoint within the border zone, they can stop and question anyone who drives through about their immigration status.

Agents are even allowed to consider race as a factor in stopping someone, as long as that person’s race is not the sole reason for doing so.

In United States v. Brignoni-Ponce, a 1975 Supreme Court case, the Court ruled that it was a violation of the Fourth Amendment for Border Patrol agents to stop a car only because the driver looked Mexican. But while the Court agreed that “apparent Mexican ancestry” does not, on its own, justify reasonable suspicion that a person is undocumented, the justices did rule that it is a “relevant factor.”

To justify a stop, the Court said an agent needs several reasons to pull over a car near the border, such as observing a heavily loaded van or a car with an unusual number of passengers. That could also include “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In other words, race can be part of the equation.

It’s hard to know how often these stops happen

The Department of Homeland Security doesn’t publish data on how many people agents stop and question in the border zone, only how many people they detain. In 2017, Border Patrol agents arrested 310,531 people at checkpoints and roving patrols across the country. This includes people apprehended trying to cross the border illegally.

Details of these arrests are scarce, and immigrant rights groups have repeatedly tried to get more information through Freedom of Information Act requests.

In 2012, Families for Freedom, a legal aid group for immigrants in New York, succeeded in suing the agency for records related to immigration arrests at bus and train stations in the state.

What they discovered was alarming: At one bus station in the Rochester area, Border Patrol agents mistakenly arrested 300 people with legal status from 2006 to 2010. That included immigrants with green cards and visitors with tourist visas. It also included 12 American citizens, according to a 2013 report from the group.

Border Patrol agents eventually released everyone who had legal status, but the practice has outraged civil liberties groups.

Lawyers for the American Civil Liberties Union have repeatedly criticized the 100-mile zone, saying that it subjects nearly two-thirds of the US population to Border Patrol’s “so-called investigatory detention and warrantless searches.”

Suda and Hernandez’s case is one of the most extreme scenarios yet, considering that they were stopped in a store, not in a car or bus that could be coming from the border.

If Suda and Hernandez win their case, Border Patrol officers would have to think twice before stopping people buying groceries on their way home.

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