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Excerpted From: Kevin R. Johnson, The Case Against Race Profiling in Immigration Enforcement, 78 Washington University Law Quarterly 675 (Fall 2000) (339 Footnotes) (Full Document)

KevinJohnson“You know, Anne,” he said quietly, “when I am with a Hmong or a French or an American person, I am always the one who laughs last at a joke. I am the chameleon animal. You can place me anyplace, and I will survive, but I will not belong. I must tell you that I do not really belong anywhere.”

-Jonas Vangay, Hmong refugee and longtime U.S. resident.

The public and the courts have begun a long overdue reconsideration of race profiling--the formal and informal targeting of African Americans, Latinos, and other racial minorities for investigation on account of their race--in criminal law enforcement. Race, however, remains central to the enforcement of the United States immigration law, particularly in the southwestern part of the country. In fact, the Supreme Court proclaimed in 1975 that “Mexican appearance” constitutes a legitimate consideration under the Fourth Amendment for making an immigration stop.

At first blush, reliance on “Mexican appearance” in immigration enforcement might not appear problematic given the widespread belief that the overwhelming majority of undocumented persons in the United States come from Mexico. In fact, however, only about one-half of the undocumented persons in this country are Mexican nationals. Unfortunately, the popular misperception adversely impacts U.S. citizens or lawful permanent residents of Latin American ancestry who are subject to immigration stops in the hunt for undocumented persons. U.S. citizens or lawful permanent residents bear the brunt of race-based immigration enforcement, which cuts to the core of their belonging to the national community.

Although the Supreme Court has not revisited this area of law in recent years, at least one court of appeals has questioned the continued lawfulness of reliance on race in immigration enforcement. The need for re-evaluation has become readily apparent. Indeed, the armed seizure of Elian Gonzalez in Miami at the break of dawn by the Immigration & Naturalization Service (INS) for a fleeting moment focused public attention on the question of whether the agency's enforcement methods comport with the Fourth Amendment. Race-based enforcement deserves special scrutiny because it disproportionately burdens persons of Latin American ancestry in the United States, the vast majority of whom are U.S. citizens or lawful immigrants. Generally speaking, whether they are U.S. citizens, lawful immigrants, or undocumented aliens, persons of Latin American ancestry or appearance are more likely than other persons in the United States to be stopped and interrogated about their immigration status. A popular stereotype characterizes Latinos as “foreigners” potentially subject to removal from the country. Because ninety percent of the persons deported from the country are Latin American when closer to half of the undocumented population is Latino, race profiling in immigration enforcement helps reinforce and legitimate this inaccurate stereotype of Latinos as perpetual “foreigners.”

The public and legal endorsement of race-based immigration stops conflict with the deep suspicion of racial classifications in virtually every other body of public law. Under modern Equal Protection doctrine, the Supreme Court has held that racial classifications are constitutionally suspect and subject to strict scrutiny. The Court has prohibited states from using classifications based on overbroad gender stereotypes, remarkably similar to the generalizations used daily in race-based immigration enforcement. Nevertheless, not until recently has any arm of the U.S. government seriously questioned this practice.

Race-based immigration enforcement, while in some ways unique in its express use of racial classifications, also constitutes part of a body of immigration law replete with disparate racial impacts cloaked in facial neutrality. As the prevailing wisdom would have it, Congress has removed the last vestiges of invidious discrimination from the immigration laws. Certainly the predominant civil rights consciousness helped move immigration law in this direction. However, the hypertechnical immigration laws still discriminate on the basis of race in ways that frequently are hidden or obscured. For example, the laws establish per-country ceilings on the number of immigrants eligible for admission each year that create long waits for potential immigrants from certain developing countries populated by people of color; a diversity visa system that, through a complicated formula, masks a strong preference for immigrants from northern Europe; a public charge exclusion that disparately impacts poor and working people from developing nations; and a variety of removal grounds that adversely affect discrete immigrant communities of color. All of the foregoing inhibit immigration from Latin America. The operation of the immigration laws generally deserve careful scholarly investigation.

Although focusing on race profiling in immigration enforcement, this Article analyzes issues that implicate civil rights concerns cutting to the core of equal citizenship and full membership for Latinos, and other minority groups, in the national community. Part II of this Article summarizes criticisms of race profiling in criminal law enforcement and analyzes the law that, although offering somewhat flawed remedies, prohibits exclusively race-based criminal law investigatory stops. Part III analyzes the impact on immigration law enforcement of the Supreme Court decisions permitting consideration of race to justify stopping an individual. Part IV sketches the civil rights implications of racially discriminatory immigration enforcement.

This Article contends that the Supreme Court should prohibit the INS from using race profiling in immigration enforcement. National origin minorities stereotyped as “foreign,” especially Latinos and Asians, stand to benefit immensely from this reform in the law, while the costs to immigration enforcement would likely be minimal. Although the nation as a whole endorses controlling undocumented immigration, race-based immigration enforcement fails to achieve that goal. Mere legal prohibition in all likelihood would not immediately end race profiling; barring the INS from using race profiling, however, would at least begin the difficult task of purging racial considerations from border enforcement. As is true in the realm of race-based criminal law enforcement, prohibition of the express use of race would shift our focus to efforts to enforce the legal norm. The removal of race from the litany of factors used by the INS to identify undocumented persons would represent a step forward in ensuring full membership and equal citizenship for Latinos and other national origin minorities in the United States.

[. . .]

In 1975, the Supreme Court held that the Border Patrol could consider race as one factor to justify an immigration stop. The dramatic growth of the Latino community, the vast majority composed of U.S. citizens and lawful immigrants, and the Court's deep and growing commitment to color-blindness in its constitutional jurisprudence, require reconsideration of that ruling. The enduring commitment of the Equal Protection Clause to equal treatment for all people justifies the preclusion of the consideration of race in immigration law enforcement, even if racial discrimination may in some loose way facilitate immigration enforcement. Race-based immigration enforcement tangibly harms persons of Latin American ancestry residing lawfully in the country as U.S. citizens or lawful permanent residents, and stigmatizes all Latinos in the United States.

The law prohibits race profiling in criminal law enforcement for precisely these reasons. The injuries caused by Border Patrol consideration of “Hispanic appearance” in the enforcement of immigration law do not differ substantially from those resulting from race-based criminal law enforcement. Race profiling in both criminal law and immigration law should be outlawed because of the harms it imposes on racial minorities.

Race profiling in immigration enforcement reveals an unpleasant truth about the status of Latinos in U.S. society. As presumed foreigners, Latinos have often received diluted civil rights protections. The disparity between the civil rights protections afforded to Latinos and other U.S. citizens and lawful residents is exemplified by the lawfulness of race profiling in immigration law enforcement and the unlawfulness of race profiling in criminal law enforcement. The consideration of race, a suspect classification under the equal protection doctrine, should also be suspect in immigration enforcement. The Supreme Court hopefully will repair the damage that it did to Latinos in Brignoni-Ponce and prevent race from justifying an immigration stop under the Fourth Amendment. Fundamental equality principles demand no less.

Associate Dean for Academic Affairs of the School of Law and Professor of Law and Chicana/o Studies; Director, Chicana/o Studies Program, University of California at Davis. J.D., Harvard University (1983); A.B. (Economics), University of California at Berkeley (1980).

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