Abstract

Excerpted From: Jasmine B. Gonzales Rose, The Colonial Borders Within: Racial Profiling, Language, and Civil Juries, 59 University of California in Davis Law Review 2677 (June 2026) (211 Footnotes) (Full Document)

“U.S. Citizen! U.S. Citizen!”, I screamed, waving my U.S. passport as I was roughly half-carried, half-dragged by an armed Immigration and Naturalization Service (INS) officer. What had prompted this violence? It was merely speaking Spanish while looking Latina. And yes, I had spoken with a heavy accent: a Standard American English Accent. Yet a simple Spanish-language reply to a fellow traveler’s question, along with my face, was enough to make me foreign, forcibly removed from the U.S. citizen customs line and dragged to the foreigner customs line at the San Diego International Airport. That moment epitomized the U.S. Latine experience for me. Even a Chicana of indigenous heritage is perpetually foreign on soil that used to be Mexico. Proper documentation does not shield us from harassment, physical force, and the never-ending presumption that we do not belong. To be Latine in the United States is to have your presence perpetually questioned and policed.

Over a decade later, I landed my first law teaching position and relocated to San Diego. That is when the bad dreams returned. In these dreams, immigration police were coming for me. Terrified that I would be deported and separated from my young daughter, I struggled to prove I belonged -- to prove I was ““American.” Confirmed by my real-life experience, I knew a passport was not enough. So I would frantically search for the wedding photograph of my tatarabuelos that I had admired as a child and which my grandmother had photocopied and placed in family-book binders for all her children and grandchildren. In the old sepia photograph, the bride is wrapped in a traditional Taos Pueblo manta, the woven blanket draped over her head and shoulders as her veil. Her features are similar to my own -- almond eyes, strong cheekbones, a straight nose, and full lips. Beside her, the groom looks much the same, but his dark hair is cut short -- the mark of a Hispano rather than an “Indio.” Surely, I thought, that would show I looked “American” -- indigenous American even.

I was mistaken to dream the photograph could save me. These are the very features that Immigration and Customs Enforcement (ICE) and other immigration enforcement officers are hunting for. The target is not our foreignness, but the racialized markers of our mestizo indigeneity and a Spanish language that predates English in a country that, in large part, was once Mexico and in some areas, such as the Southwest, could still be considered Latin America. This is the operation of colonial borders within -- maintained through racial profiling, language policing, and the systematic exclusion of Latines from spaces of self-government, such as juries.

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This Article builds on the scholarship of Kevin R. Johnson, whose work has long illuminated how immigration law and constitutional doctrine have enabled the subordination of Latines through racial profiling, language discrimination, and exclusion from civic institutions, like juries. His analyses of juror exclusion and the importance of a diverse judiciary underscore how the composition of civil and criminal factfinders shapes both recognition of harm and the remedies afforded. Long before the current period of intensified, abusive immigration enforcement, his scholarship traced the historical roots of these practices, examined their contemporary manifestations, and revealed the ways in which the law itself has sanctioned their persistence. In honoring that work, this Article seeks not only to document a moment of crisis, but to emphasize a broader truth: the most enduring borders in U.S.-American life are not always at the nation’s edge, but are embedded within its laws, its institutions, and its legal and social understanding of who belongs.

This Article proceeds in four parts. Part I examines the terror of the present moment, as ICE abuses against Latines unfold and intensify. Part II analyzes the legal protections available -- but underutilized -- for Latines in the United States, highlighting existing protections under the Fourth, Fifth, and Fourteenth Amendments. Part III explores the fault lines in our legal system and society, identifying racial profiling, language discrimination, and the failure to recognize colonialism as structural problems that allow such abuses to persist and worsen. Part IV considers some of the safeguards needed to contain these harms and reduce their recurrence.

[ . . . ]

Donald Trump has repeatedly warned of an amorphous “enemy from within” threatening the nation’s stability and democracy. Yet there is no evidence of such a threat beyond his own Administration’s disregard for the Constitution and rule of law. True internal dangers lie in the colonial borders within -- the legal, institutional, and social mechanisms that continue the logic of conquest inside our nation’s interior by treating Latines as foreigners and criminal outsiders in lands that were once part of Latin America.

Unlike territorial borders, colonial borders within are not drawn on maps or enforced only at the nation’s edge. They operate internally, through law and legal institutions, by marking certain populations as perpetually foreign, suspect, and subordinate even when they are citizens and longstanding members of the polity. These borders are enforced through racial profiling, language policing, citizenship hierarchies, and exclusion from civic institutions. Their function is not to regulate entry, but to preserve colonial and racial hierarchies after conquest has formally ended. As a result, Latines are rendered perpetual foreigners within their own country of birth -- judged not by conduct or character, but by racialized appearance, language, accent, and occupation.

While the current immigration enforcement abuses are plainly forbidden under existing constitutional doctrine, the law has nonetheless enabled their persistence. It has done so by tolerating reliance on racialized appearance as a factor in suspicion, by treating language and accent as racially neutral rather than as core markers of racial, ethnic, and national origin identity, and by erasing the historical reality of conquest and colonization. This erasure matters. When history is denied, Latine appearance, culture, and Spanish language are miscast as foreign rather than domestic, transforming identity itself into evidence of illegality and rendering citizenship an insufficient shield against suspicion and state violence.

The current legal landscape -- including Brignoni-Ponce and Justice Kavanaugh’s concurrence in Noem v. Vasquez Perdomo -- stands in stark contrast to what the United States strives to be. Our constitutional project endeavors to reject empire and colonization, promises equality without regard to race, ethnicity, or national origin, and aspires to judge individuals as individuals rather than as racialized caricatures. Yet by tolerating racial and linguistic profiling, failing to protect language as a civil rights concern, and limiting access to factfinders who reflect the communities most affected by state violence, the law converts constitutional guarantees of equal protection, due process, and freedom from unreasonable seizures into fragile abstractions -- rights that exist in theory but are easily cast aside by unprincipled executive and state action.

The consequences of these “colonial borders within” extend far beyond immigration stops and seizures; they shape the civil justice system itself. When Latines are excluded from civil juries through language and citizenship barriers, the law deprives itself of factfinders capable of recognizing the full scope of harms produced by immigration enforcement abuses. Most civil rights litigation unfolds in the shadow of who will ultimately judge or determine the case. Jury pools that do not reflect the community distort not only verdicts, but also settlements, summary judgment decisions, and the valuation of dignitary, psychological, and community-based injuries. A legal system that systematically excludes those most affected by these harms cannot fully see, name, or remedy them. Moreover, as Kevin Johnson has recognized, the lack of diversity on the bench compounds this blindness, further reducing the likelihood that courts will appreciate the lived realities and structural inequities confronting Latines.

The fear that animates my dreams -- and now defines the lived reality of millions -- is not born of foreignness, but of limited legal protection and overlooking the nation’s colonial history. In my dreams, I believed that proof of belonging could be found in a photograph, in ancestry, or in evidence of indigeneity itself -- a reflection of a deeper promise that “American”-ness, once shown, would protect. The present moment reveals the illusion of that promise. Latines are targeted not because they are foreign, but because the legacies of centuries of conquest, colonization, and U.S. intervention are ignored under our laws and erased from collective memory. Language, accent, and indigenous or Hispanic features -- traits that long predate English, Anglo immigration and the modern border -- are treated as evidence of illegality. In this way, internal colonial borders convert law into an instrument that enforces hierarchy rather than equality. Dismantling these colonial borders within requires more than condemning abuse at the border’s edge; it demands confronting how law itself constructs foreignness, allocates suspicion, and withholds civic power. Until the law can imagine and accept Latines as fully U.S.-American -- historically, culturally, and constitutionally -- the promise of equality will remain not a reality but a deferred ideal. The time has come to recognize and dismantle the colonial borders within, and to reorient legal doctrine toward a vision of belonging grounded not in racialized suspicion, but in historical truth and constitutional equality.

Professor of Law, Boston University.