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Lupe S. Salinas and Fernando Colon-Navarro

Reprinted from: Lupe S. Salinas and Fernando Colon-Navarro, Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat , 37 Thurgood Marshall Law Review 5 (Fall, 2011) (290 Footnotes Omitted)


Not all Latinos are undocumented persons, and not all undocumented persons are Latinos. Throughout the history of Latino presence and immigration to the United States, the open welcome extended by many Americans eventually developed into rejection and an effort to terminate the invitation. Persons of Mexican ethnicities were initially welcomed when the growing nation implemented its manifest destiny policy in the 1840s and later when the nation's railroad construction and agricultural needs surfaced.

Later, in the 1940s, Mexicans who were admitted as braceros (guest workers) via an Act of Congress provided the labor needed to get our nation through World War II. These foreigners continued to be employed even after the war ended. The effort continued until 1964 since the farmers and ranchers welcomed this labor. Most recently, in the 1980s, persons of other Latino descents were welcomed, or perhaps tolerated, in response to our obligation under international law of providing refuge to persons who became victims of persecution in their home nations.

The American effort to obtain ownership of additional Mexican territory, including New Mexico and California, led to the humiliation of the Mexican people. Mexico, completely crushed, would nonetheless sign a peace treaty whereby it would cede 55 percent of its territory to the United States and yet still be paid 15 million dollars.

Prior to the entry of the United States into Texas, an issue developed in the eyes of South Carolina Senator John C. Calhoun. What will we as a nation do with all those non-white people of mixed blood? America later decided to grant American citizenship to Mexicans who requested it as well as to those who remained beyond one year and who did not go south of the new border with Mexico. The racial conflict centered on whether Mexicans and other mestizos could be considered white, an issue which appeared in federal court in 1897, when a Mexican petitioned to become a naturalized citizen of the United States. While the court grappled with the question, it declared the applicant eligible to become an American citizen, notwithstanding the provision which at that time limited the right of naturalization to free white persons.

Officially, then, the courts declared that Latinos are white, at least for purposes of certain legal rights. However, society clearly did not consider Mexicans to be white persons. Anglo Americans continued to engage in racist practices that resulted in the victimization of Latinos. In one exemplary case, Manuel Dominguez, a signer of the California constitution and a county supervisor from Los Angeles, responded to a subpoena. However, the opposing Anglo lawyer alleged that Dominguez had Indian blood and was therefore ineligible as a witness under California law.

Based on this history, it is not surprising that racial conflicts continue to this day, 150 years later. It is also with this history in mind that we address the issues surrounding the topic of Racial Profiling as a Means of Thwarting the Alleged Latino Security Threat.

In Part II, the authors address the concept of racial profiling and its impact on the Latino population. In Part III, we discuss the Fourth Amendment constitutional foundations for the concept of reasonable suspicion and racial profiling. Part IV centers on the alleged security threat that the Latino population presents and the myths that are associated with this claim. In Part V, the authors urge the federal government in particular and the various state and federal branches of government in general to abide by the constitutional standards that our Supreme Court has enunciated over the years in making sure that all persons are free from unreasonable searches and seizures. The authors urge that the myths that have dominated this immigration debate be seen for what they are-fabrications and untruths-and recommend that these issues be studied and reviewed with the goal of developing an immigration policy that is as fair as possible. One definite objective of any immigration reform should include eliminating the waiting period for any immediate family such as parents, children and siblings.