Race Profiling in Immigration Enforcement
By Kevin R. Johnson
Author's Note: This article is adapted from an article entitled "The Case Against Race Profiling in Immigration Enforcement," 78 Washington University Law Quarterly (forthcoming 2001).
Policymakers and the courts have finally begun a long overdue reconsideration of race profiling, the formal and informal targeting of African Americans, Latinos, and other racial minorities for police stops on account of their race. Many state and local law enforcement agencies currently are under investigation for engaging in this illegal practice. Alleged criminal propensities of African American and Latino men cannot justify a lawful police stop. Rather, the law requires individualized suspicion. Now, policymakers face the daunting task of enforcing the law to eliminate the use of race in routine police stops.
In stark contrast to the prohibited use of race profiling in criminal law enforcement, the U.S. Supreme Court stated in 1975 that "Mexican appearance" constitutes a legitimate consideration under the Fourth Amendment for stopping a person to verify his or her immigration status. (See United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).) Such race profiling in immigration enforcement disproportionately burdens persons of Latin American ancestry, the vast majority of whom are U.S. citizens or lawful immigrants. The harms range from embarrassing and humiliating the persons stopped to undermining the status of all Latinos in U.S. society. Race-based immigration enforcement contributes to the fact that 90 percent of the people deported from the country are of Latin American origin (U.S. Dep't of Justice, Immigration and Naturalization Service, "INS Sets New Removals Record," Nov. 12, 1999), when only about one-half of the undocumented population is Latino. (U.S. Dep't of Justice, 1998 Statistical Yearbook of the Immigration and Naturalization Service 240 (2000) (Table I).) This helps reinforce and perpetuate the erroneous stereotype that all Latinos are "foreigners."
In United States v. Montero-Camargo (208 F.3d 1122 (9th Cir. 2000) (en banc), the U.S. Court of Appeals for the Ninth Circuit disregarded the contrary language in Brignoni-Ponce and held that the Border Patrol cannot lawfully consider "Hispanic appearance" in deciding to make an immigration stop. The court based its holding on that fact that "Hispanic appearance" is a weak proxy for immigration status. It also relied on the fact that under the current interpretation of the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court has made it clear in recent years that all racial classifications are constitutionally suspect. (See, e.g., Adarand Constructors, Inc. v. Peņa, 515 U.S. 200 (1995) (invalidating a program using racial classifications in an effort to increase government contracting with minority businesses).)
The Lawfulness of Race Profiling in Immigration Law Enforcement
In Brignoni-Ponce (422 U.S. 873, 885-87 (1975)), the Supreme Court held that an immigration stop by the Border Patrol violated the Fourth Amendment because Border Patrol officers relied exclusively on "the apparent Mexican ancestry" of the occupants of an automobile. The Court further stated, however, that "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in an immigration stop (emphasis added).This critical sentence from Brignoni-Ponce has shaped immigration enforcement in the United States over the last twenty-five years. In support of its reasoning, the Court relied on the government's allegation that 85 percent-as we shall see, an inflated estimate lacking evidentiary support-of undocumented immigrants in the United States come from Mexico. (Brignoni-Ponce, 422 U.S. at 879.) By emphasizing that a Border Patrol officer may consider race along with other factors in deciding whether to conduct an immigration stop, the Supreme Court opened the door to Border Patrol reliance on race and little more than a hunch that a brown person is undocumented.
The Undocumented Immigrant Profile. With the leeway afforded by Brignoni-Ponce, the Immigration & Naturalization Service (INS) often employs crude, undocumented immigrant profiles, with race as the touchstone. (See, e.g., United States v. Cruz-Hernandez, 62 F.3d 1353, 1355-56 (11th Cir. 1995); United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992), amended, 997 F.2d 1306 (9th Cir. 1993).) In one lawsuit in which plaintiffs alleged that the INS engaged in a pattern and practice of race-based stops, INS officials testified that an officer might properly rely, along with Hispanic appearance, on a "hungry look" and the fact that a person was "dirty, unkempt, " or "wears work clothing." (Nicacio v. INS, 797 F.2d 700, 704 (9th Cir. 1985).)
By affording vast discretion to the Border Patrol, the Supreme Court invites race to dominate immigration enforcement. As one study concludes, Border Patrol "[o]fficers can easily strengthen their reasonable suspicion for an interrogation after they have begun talking to an individual. . . . It is easy to come up with the necessary articulable facts after the fact," which is commonly known within the Border Patrol as "'canned p.c.' (probable cause)." (Edwin Harwood, "Arrests Without Warrant: The Legal and Organizational Environment of Immigration Law Enforcement," 17 U.C. DAVIS L. REV. 505, 531 (1984) (emphasis added).)
Courts rarely find that stops fail to satisfy the Supreme Court's minimal requirements. Although civil remedies exist for race-based immigration enforcement, the evidentiary and other requirements (see, e.g., Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc) (dismissing on justiciability grounds case alleging INS pattern and practice of race discrimination in border stops)) in proving such claims are difficult to satisfy and serve as formidable barriers to suit.
The Need for Change. The deficiencies in existing law that permit the Border Patrol to consider race in immigration stops demand change. The "Hispanic" or "Mexican" appearance classification is dramatically overbroad and includes citizens and lawful immigrants as well as unlawful ones. Moreover, the dignitary harms suffered by Latinos lawfully in the United States that are caused by race-based immigration enforcement require reform in the law.
Over-Inclusiveness. In allowing the Border Patrol to consider "Mexican appearance" in immigration stops, the Supreme Court relied on the government's assertion that 85 percent of the undocumented population in the United States was of Mexican ancestry. According to the best current INS estimates, however, Mexican citizens comprise only about one-half of the undocumented population, a far cry from the unsubstantiated estimate relied on by the Court in 1975.
In any event, rather than focusing on the percentage of undocumented persons of Mexican ancestry in the country, the Supreme Court should have considered the percentage of Latinos in the entire population in the United States, including citizens and lawful immigrants. This represents the population at risk for injuries caused by race profiling in immigration enforcement.
The percentage of Hispanics in the country has grown substantially over the twenty-five years since the Court decided Brignoni-Ponce. In 1997, nearly 30 million people of Hispanic ancestry, more than 11 percent of the total U.S. population, lived in the United States (U.S. Dep't of Commerce, CURRENT POPULATION REPORTS: THE HISPANIC POPULATION IN THE UNITED STATES: MARCH 1997 (update) Bureau of the Census (1998)), an increase from 14.6 million people representing 6.5 percent in 1980 (U.S. Dep't of Commerce, STATISTICAL ABSTRACT OF THE UNITED STATES (1999), at 19). As of October 1997, however, only a little more than 3 million undocumented Mexican and Central American immigrants lived in the United States (U.S. Dep't of Justice, 1998 STATISTICAL YEARBOOK, at 240 (Table I)). An admittedly crude estimate from these figures reveals that the vast majority (roughly 90 percent) of the Latinos in the United States are lawful immigrants or citizens.
The negative impacts of race profiling in immigration enforcement promise to expand as the Latino population increases. The Bureau of the Census projects that by 2050, Hispanics will constitute nearly 25 percent of the U.S. population. (U.S. Bureau of the Census, CURRENT POPULATION REPORTS-POPULATION PROJECTIONS OF THE UNITED STATES BY AGE, SEX, RACE, AND HISPANIC ORIGIN: 1995 TO 2050, at 13 (1996) (Table J).)
The Dignitary Harms. Reliance on group probabilities as the justification for stopping an individual runs afoul of fundamental principles of human dignity at the core of the Equal Protection Clause of the Fourteenth Amendment. Race-based stops are based on probabilities, not individualized suspicion. Resulting harms, including but not limited to emotional turmoil, humiliation, embarrassment, and physical abuse, fall almost exclusively on innocent racial minorities, particularly Latinos.
That the Border Patrol targets persons of "Hispanic appearance" almost invariably contributes to the fact that close to 90 percent of the removals are of Mexican and Latin American citizens, even though they constitute only about one-half of the total undocumented population in the United States. Similarly, race-based enforcement reportedly has led to the unlawful arrest, and sometimes even deportation, of U.S. citizens of Mexican ancestry in the border region. It may well contribute to Border Patrol and other violence against undocumented immigrants and other people of Mexican heritage. (See American Friends Service Committee, HUMAN AND CIVIL RIGHTS VIOLATIONS ON THE U.S. MEXICO BORDER 1995-97 (1998); Amnesty International, UNITED STATES OF AMERICA: HUMAN RIGHTS CONCERNS IN THE BORDER REGION WITH MEXICO (1998).)
Conclusion
The pattern and practice of race profiling in immigration deeply harms and marginalizes the Latino community as a whole. It singles out Latinos as a group for immigration inquiries and reinforces their perceived suspect status in the United States. This unlawful practice must end if Latin American citizens and legal immigrants are to be accorded the rights that they are entitled to under the Constitution.
Kevin R. Johnson is associate dean for academic affairs and director of the Chicana/o studies program at the University of California, Davis. He is a member of the ABA Coordinating Committee on Immigration.
