Abstract

Excerpted From: Isabel M. Skilton, Brignoni-ponce and the Establishment of Race-based Immigration Enforcement, 31 Washington International Law Journal 292 (Winter, 2022) (143 Footnotes) (Full Document)

Immigration law is selectively enforced and adjudicated on the basis of race--focusing on who is perceived to be a danger to the community based on the color of their skin and their country of origin. In the United States, Latin Americans, particularly those of Mexican decent, have frequently been targeted and profiled by immigration enforcement. In 1975, the United States Supreme Court legitimized race-based immigration enforcement in United States v. Brignoni-Ponce. The Court held that “Mexican appearance” could be a factor, though not the sole factor, to consider when determining whether it was appropriate to stop and search a vehicle within the 100-mile United States border. Through Brignoni-Ponce, the Supreme Court labeled those who did not fit the white mold as “foreign,” condoned disparate policing standards, and ultimately weakened the Fourth Amendment right to be free from unreasonable search and seizure for all individuals of “Mexican appearance.” When Brignoni-Ponce was decided, only four percent of the United States population was Latin American. Today, the demographics of the United States have dramatically diversified. White Americans make up sixty-two percent of those living in the United States and Latin Americans make up eighteen percent of the United States population--both authorized and unauthorized. Any rationale for immigration enforcement that boils down to an ethnic or race-based appearance is unrealistic, unworkable, and illogical. Most importantly, it is discriminatory and harmful to those who are forced to bear the weight of heightened surveillance and policing.

Brignoni-Ponce remains a stronghold of the racist United States immigration system, arming immigration enforcement and the courts with a rationale and legal basis to continue perpetuating disparate and unconstitutional treatment of immigrant communities. The legitimation of disparate enforcement is evident in deportation rates for Black immigrants and immigrants of color in the United States. Today seventy-six percent of Black immigrants are deported on criminal grounds, compared to the average of forty-five percent of immigrants as a whole. For a searingly horrific example one need look no further than the 2021 wholesale deportation of Haitian refugees by immigration enforcement on horseback--echoing scenes from our nation's gruesome and shameful history of extrajudicial lynching and murder of Black communities.

This comment analyzes the impacts of race-based discrimination and provides alternatives which may cabin the impact of Brignoni-Ponce. Section I briefly explores the history of Latin Americans, particularly Mexicans, within the United States and how these populations have been impacted by United States immigration policies and race-based immigration enforcement mechanisms. Section II assesses how the holdings in Terry v. Ohio and Brignoni-Ponce permit immigrant enforcement to stop individuals on the basis of race and how those rulings have been interpreted by lower courts. Finally, Section III analyzes the flaws of Brignoni-Ponce and explores alternatives to alleviate the harm the Supreme Court has condoned. Ultimately, this comment proposes heightened standards to authorize the stop and visual search of a car though a roving patrol through the requirement of probable cause instead of reasonable suspicion.

[. . .]

In the beginning of this comment, I asked whether United States v. Brignoni-Ponce should be overruled. Throughout, I argued that the United States Supreme Court legitimized race-based immigration enforcement in Brignoni-Ponce. By legitimizing race-based immigration enforcement the Supreme Court drastically impacted race-based discrimination in two ways. First, the Supreme Court weakened the Fourth Amendment right to be free from unreasonable searches for those who are perceived by immigration officials to be of “Mexican appearance” by holding that “Mexican appearance” could be a factor, though not the sole factor, to consider when determining whether it is appropriate to stop and search a vehicle within the 100-mile United States border. Second, Brignoni-Ponce, armed immigration enforcement and the courts with a rationale and legal basis to continue perpetuating disparate and unconstitutional treatment of immigrant communities.

However, Brignoni-Ponce is not the sole force lowering the standard of search and seizure and thereby legitimizing a race-based immigration enforcement system. In Terry v. Ohio, the Supreme Court lowered the protections provided by the Fourth Amendment through the establishment of the reasonable suspicion standard. The reasonable suspicion standard requires less than probable cause, thereby prioritizing law enforcement's ability to search and seize over an individual's constitutional right to be free from surveillance and policing. Coupled with Brignoni-Ponce, which subsequently allowed race and ethnicity to be a factor in determining whether reasonable suspicion was established in the context of a roving patrol conducted by CBP, a legal basis for race-based immigration enforcement was created.

The elimination of the legal basis for race-based immigration enforcement will requires the unlikely overruling of Brignoni-Ponce. As such, to limit the disparate treatment and discrimination those of “Mexican appearance” face, Fourth Amendment protections should be strengthened by requiring a warrant to stop and search vehicles during roving patrols. Warrants and the probable cause required to issue a warrant cannot be facially based on race or ethnicity. While raced-based policing will not be eliminated through increased Fourth Amendment protections for those subject to roving patrols, or through the overruling of Brignoni-Ponce altogether, even a dilution of the Supreme Court's ruling is a worthwhile move against discrimination on the basis of race, ethnicity, or the mythical concept of “Latinidad.”