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.
II. Racial Profiling and the Latino Population
A. Racial Profiling Defined
Racial Profiling is the discriminatory practice some law enforcement officials engage in when they target individuals for suspicion of crime based on the individual's race, ethnicity, religion, or national origin. Criminal profiling generally involves stereotyped and inexplicable or unreasonable reliance on a group of characteristics that police associate with criminal activity. For example, racial profiling utilizes the race of a person to determine which drivers to stop for minor traffic violations, practices commonly referred to as driving while black or brown.
One of the nation's earliest anti-Latino racial profiling enactments appeared as the 1855 California Vagrancy Act, popularly known as the Greaser Act. The statute targeted only persons commonly known as Greasers' or the issue of Spanish and Indian blood . . . and who go armed and are not peaceable and quiet persons. One glossary of ethnic terms defines greaser as an epithet for mestizo, Mexican, or Spanish-speaking.
Anti-profiling policies traditionally prohibit focusing on a person as a suspect on the basis of her race, color, ethnicity or national origin. An exemplary profiling law today bars law enforcement agencies from reliance on ethnicity, color, national origin, political affiliation, language, sexual orientation, gender, gender identity, disabilities or medical conditions as reasons to stop or search people. When a police stop is based on suspect classifications such as race and ethnicity, the constitutional protections of the Fifth Amendment's due process clause (federal agents) and the Fourteenth Amendment's equal protection clause (state agents) are triggered.
In an amicus curiae brief presented to the Supreme Court, lawyers for the Mexican American Legal Defense & Educational Fund (MALDEF) described the Latino racial profiling issue in the following language:
It is not a crime to be of Mexican descent, nor is a person's Mexican appearance a proper basis for arousing an officer's suspicions. Those broad descriptions literally fit millions of law abiding American citizens and lawfully resident aliens. . . .
A person's racial or ethnic background or appearance is a neutral factor in appraising probable cause or reasonable suspicion, and to permit law enforcement officers to base their decision to stop or search an automobile on the racial or ethnic appearance of the occupants would be to sanction the very same discriminatory law enforcement condemned in Yick Wo v. Hopkins, as violative of the Equal Protection Clause of the Fourteenth Amendment. . . . This discrimination is inevitable if Border Patrol agents enjoy unfettered discretion to search whatever vehicles they choose, since they will naturally continue to focus on drivers of Mexican descent or who are of Mexican appearance, or whose passengers meet these criteria, as the most likely targets for routine or random vehicle searches.
Later discussions will detail some horrific experiences, which American citizens and resident aliens have suffered as profiling victims.
B. The Impact of Racial Profiling on America's Latino Population
Racial profiling of Latinos occurs today, and it has occurred well before Arizona's Senate Bill 1070 (SB 1070) appeared in April 2010. In fact, profiling of Mexicans dating back to the early years of the twentieth century has been documented extensively by historians and others. The Mexican identity problem even led to hate crimes in Patchogue, New York, a quiet Long Island suburb, where some misguided local youth went out on the town with the stated purpose of finding Mexicans to beat up. African Americans and other identifiable minorities have also been subjected to these dangerous and sometimes fatal attacks and to humiliating detentions and interrogations over the years.
Recently, our nation's Department of Justice asked the Eleventh Circuit Court of Appeals to stay a lower court's order upholding parts of an Alabama immigration statute, which seeks to protect local communities from the alien influx. In its emergency motion for a temporary injunction, the Obama administration argued that the new state law invites discrimination against many foreign-born citizens and lawfully present aliens. The nation's official advocates engaged in a major blunder in their pleadings by overlooking American-born citizen victims who have been and will continue to be adversely impacted by this extremely degrading profiling. We only need to consider the 2010 deportation of a United States citizen.
Two of the many provisions of Arizona's SB 1070 require that an officer: (1) make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States; and (2) requires the officer to verify the immigration status of any person arrested prior to releasing that person. The requirement to investigate a person's status upon suspicion that they are illegal has contributed to the national debate over racial profiling. Entitled the Support Our Law Enforcement and Safe Neighborhoods Act, the Arizona statute clearly dictates a state policy of attrition through enforcement among all state and local government agencies in Arizona.
Examples of Latino racial profiling are quite revealing. Arizona has been a site of several notorious cases of discrimination. Judge Jose Padilla, a Maricopa County Superior Court judge, has been questioned twice since he became a judge in 2006. The interrogations were prompted by no other apparent reason than his Latino appearance. He never informed the officer of his work nor received a ticket for the alleged violations. However, he did complain to the police department involved. These incidents occurred even though the state of Arizona had settled a lawsuit against police officers in 2006 where the proof indicated that vehicles driven by Latinos and Blacks were significantly more likely to be searched than those driven by Whites.
Another dreadful example involves Chandler, Arizona and their local police cooperation with the Tucson Border Patrol Sector in July 1997. The so-called Chandler Roundup operation resulted in many civil rights complaints that epitomize racial insults Mexican Americans and legal residents experience during immigration raids. The constitutional basis for police encounters with individuals should concentrate on the identification of specific illegal behavior that allows a reasonable suspicion temporary detention or a probable cause seizure. Instead, in Chandler the Mexicanness of an individual provided the justification for the police stops and the subsequent questioning as to status. The following excerpt provides an indication of the humiliation experienced by Latinos:
Public outrage focused on the selective discriminatory law enforcement summarized in the following quote, They were looking for dark-skinned workers speaking Spanish.Media coverage uncovered numerous incidents of Mexican Americans and legal residents who were harassed and intimidated during the joint operation. For instance, Venecia Zavala was approached by an officer and asked for proof of citizenship while she was walking to her car after shopping at a Chandler supermarket. Celso Vazquez, a Mexican national and a legal U.S. resident, was driving in the same area when a Chandler officer pulled him over and asked for his papers. The encounter concluded when he showed his title and registration. Juan Gonzales was asked to show proof of citizenship while he was pumping gas into his car alongside an Anglo couple who were not questioned by police. A lot of my white friends have been in this country as long as I have. So how come I'm treated differently? . . . How come I have to prove I'm a U.S. citizen? That's just not right.
Additional proof that Mexican appearance became the criminal behavior for the stops in Chandler centered on the computer-printed Record of Deportable Alien form that was used by immigration agents in which the words Mexico and/or Mexican had already been typed in the boxes requiring information.
After the Attorney General's investigative report, the City of Chandler issued a report which analyzed complaints made by seventy-one Latinos. Of the forty-one stops that recorded citizenship status, eleven were U.S. citizens of Mexican ancestry, fifteen were Latino legal residents, one was a permanent resident, three had work permits, one had a green card, and eleven were undocumented. In other words, 73 percent of these recorded stops involved persons entitled to be in the United States.
The Chandler Police Chief defended his policing tactics during the five-day raid by asserting that the procedures were no different than everyday experiences of all U.S. citizens crossing the border. After all, the chief added, Every time you go to San Diego, they stop you and ask you if you're a U.S. citizen. Is it a violation to ask a person if they're a U.S. citizen? I don't think so. The chief unfortunately disregards the obvious in trying to justify illegal actions: Chandler is 120 miles away from the border! The City of Chandler eventually settled a lawsuit arising from this illegal activity.
A final Arizona example involves the unreasonable seizure case of Julio and Julian Mora by Maricopa County Sheriff's Department officers. Julio Mora, an American citizen, and Julian Mora, his father, a thirty-year resident alien, were detained on suspicion of undocumented status and fraudulent documents. According to the ACLU, Julian Mora was driving to work when, without provocation, a police vehicle from Arpaio's agency cut in front of him and forced an abrupt stop. The complaint claims:
Although the deputies had no reason to believe that the Moras had broken any law or were in the country unlawfully, they transported the Moras to Handyman Maintenance, Inc. (HMI), where MCSO was conducting a raid that morning. For the next three hours, the Moras were held at HMI, where they were denied food and water and forbidden contact with the outside world. They were not released until they were interrogated.
In April 2011, the federal district court granted Mora's summary judgment motion in part with respect to the Fourth Amendment claim asserted as to the County's liability under the Civil Rights Act for the unconstitutional stop and arrest of the Moras. In July 2011, Maricopa County bailed out and settled with the Moras.
Arizona does not possess a monopoly on racial profiling and discriminatory treatment. Other regions of the country contribute to despicable profiling. Even a person of the stature of a Nick Valencia, a national news desk editor and former head of the CNN Spanish Desk, can be singled out by certain Americans for anti-Latino discriminatory treatment. While attending a musical festival in Atlanta, Georgia, Valencia met a group of visitors from Mexico City. He began speaking Spanish with them. He then heard an Anglo woman tell him to go home, adding Vete in Spanish, perhaps in case he did not understand English. Obviously offended, Valencia later reflected over this incident:
My Mexican friends remind me that I am American first, Mexican second and that my English is better than my Spanish. Yes, I tell them. But I can never walk into a room and be white.Evidently, to some the brown color of my skin means I'm not even American. My friends and family tell me what I experienced that night is a microcosm of what is happening to Latinos across the country. You don't have to look hard to find it. In news stories, in political discourse, on talk radio, in everyday conversation it seems it has become OK to treat Latinos in a negative and antagonistic way-whether they are new immigrants or longtime Americans. The anti-immigration legislation sweeping across the United States has made this plain.
In June 2010, teenager Luis Alberto Delgado, an American citizen born in Houston, was detained by a South Texas deputy sheriff and handed over to a U.S. Border Patrol agent after a traffic stop. Delgado has a limitation in English since he moved to Mexico when he was a youngster after his mother divorced his father. During the stop, he produced an American birth certificate and a Social Security card, but the federal agent accused him of producing false documents. After lengthy questioning over several hours, where Delgado kept asking to be taken before a judge, Delgado relented and signed the agent's paperwork as a means of finding some other approach to his dilemma of facing an incredulous investigator. He remained in his deported status for nearly three months before immigration officials finally allowed his return.
Puerto Rican Americans, legislatively declared citizens regardless of birth in Puerto Rico, also suffer at the hands of immigration authorities who operate on suppositions as opposed to facts. In Chicago, Illinois, Eduardo Caraballo spent three days in jail when he was arrested as a suspect in the theft of a vehicle. He was able to make bail promptly, but his immigration problems then began. He faced deportation on suspicion of being in the country without authority. Similar to the speculations engaged in by federal agents with Luis Alberto Delgado in Texas, the agents developed doubts about Caraballo by asking him specific questions about Puerto Rico that he could not answer to their satisfaction. His inability to answer them was based on the fact that Caraballo was brought by his mother to the mainland United States when he was eight months old, and he travelled only once to Puerto Rico.
Luis Gutierrez, Member of Congress from Chicago, stated:
You know what this proves to you? That in Arizona, they want everybody to be able to prove they're legally in the country. They want everybody to prove that they're an American citizen. Here we had an American citizen, that the federal government, not state authorities, but the federal government, with all their technology and all their information capacity that they have, could not determine, for more than three days, his status as an American citizen.
. . . .
. . . [Immigration agents] can't just judge people by their color or their features, by the way they look, they should actually investigate thoroughly, and they should do that before they put the hold on somebody.
How many more Americans have to suffer from incompetent or callous agents? Why do Latinos in general and dark-skinned people have to suffer unreasonable seizures, which the Fourth Amendment ostensibly prohibits?
III. Fourth Amendment Constitutional Foundations for Racial Profiling
A. Search and Seizure Jurisprudence
Unfortunately and surprisingly, the bases for America's racial and ethnic profiling problems can be traced to rulings issued by our Supreme Court. These rulings essentially and collectively state that an officer has a right to make a temporary detention based on reasonable suspicion or a traffic stop even if that stop was primarily for the basis of checking out possible criminal behavior for which the officer lacked reasonable suspicion or probable cause.
We begin first, however, with Terry v. Ohio, the landmark opinion, which created the reasonable suspicion exception to the probable cause standard of the Fourth Amendment. McFadden, a plainclothes Cleveland, Ohio police officer, had been a detective for thirty-five years, thirty of which included an anti-shoplifting assignment in the downtown sector. He observed Terry and two other men engage in behavior, which led him to believe that they were planning a robbery.
McFadden explained that he had developed routine habits of observation and in this case when I looked over they didn't look right to me at the time. He saw one of the men leave the other one and walk down the street past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. The second man repeated these actions. This occurred almost a dozen times. These two men then met up with a third man.
After this had gone on for over ten minutes, the two men walked off together, heading west on down another street, following the path taken earlier by the third man. By this time, Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window, he suspected the two men of casing a job, a stick-up, and decided to investigate further. In making this move, he admitted his fear that they may have a gun.
McFadden approached the three men, identified himself as a police officer and asked for their names. When the men mumbled something in response to his inquiries, Officer McFadden grabbed Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun.
At this point, the officer ordered all three men to enter the store. As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz.
Terry was charged with carrying a concealed weapon and he moved to suppress the evidence, asserting that the stop and frisk was an unreasonable search and seizure. The Supreme Court allowed the search that developed from the detention and frisk of Terry and his partners even though the officer lacked probable cause to arrest the suspects at the time of the stop. The Court stated:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.
In Whren v. United States, the Court responded to allegations of a possible pretextual traffic stop by District of Columbia officers in a neighborhood noted for its high drug activity. The officers in the unmarked car became suspicious after witnessing a truck waiting at a stop sign for more than twenty seconds. During this stop, the youthful driver of the truck was seen looking down towards the passenger's lap.
The police made a turn and headed back towards the suspicious vehicle. The truck then turned without signaling and sped off at an unreasonable speed. The police caught up to the vehicle at a stop light. As the officer stepped up to the truck window, he observed two large bags of what he believed to be crack cocaine in Whren's hands.
Whren alleged that the stop was not justified by probable cause and that the officers' reasons for approaching the vehicle were pretextual. Whren conceded that the officer had probable cause for violations of the traffic code. Whren and his partner in crime, both of African American descent, asserted that a traffic violation should not suffice since officers will succumb to utilizing traffic stops to discover other law violations in the absence of probable cause or even reasonable suspicion and might select motorists to stop based on an impermissible factor such as the race of the car's occupants.
The Supreme Court ruled that an officer can stop a vehicle if he has probable cause to believe that a traffic violation has been committed. In addition, the evidence discovered would be admissible, even if the officer made the stop with the purpose of discovering criminal activity.
B. Mexican Appearance and Reasonable Suspicion of Illegal Alien Status
Racial profiling occurs when law enforcement personnel suspect illegal activity by using a person's physical appearance or the stereotypical perceptions of an ethnic or racial group. In United States v. Brignoni-Ponce, the Court addressed the permissibility of an officer on a roving patrol to stop a vehicle and question its occupants when the only ground for suspicion is that the occupants appeared to be of Mexican ancestry. In rejecting this police practice, the Court added that, except at the border and its functional equivalents, roving patrol officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. The Supreme Court deemed the stop and interrogation to be not reasonable under the Fourth Amendment, adding that law enforcement's legitimate needs do not require such interference with lawful traffic:
Roads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well. . . . To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.
Furthermore, the Court observed that significant numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry and emphasized that, even though Mexican appearance [is] a relevant factor, standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.
C. The Browning of America and the Brignoni-Ponce Danger to Constitutional Rights
In 1975, the Justice Department contended in Brignoni-Ponce that the public interest in enforcing conditions on legal alien entry justified stopping persons who may be aliens for questioning about their citizenship and immigration status. This same effort is being made today across the United States in an effort to protect our border from criminals who are damaging our nation's economic and national security. In carrying out this effort, local and federal agents are engaging in practices that result in unreasonable seizures. Our nation has never compromised the United States Constitution and it should not begin to do so against groups that have been historically subjected to discriminatory treatment, particularly the Latino population.
Terry introduced the public to the concept of reasonable suspicion. Under this law enforcement investigative tactic, an officer may stop a vehicle or confront a pedestrian if the officer has sufficient information, based on specific and articulable facts, to suspect that the driver or the pedestrian is engaged in a possible crime or violation of law. This minimal knowledge is required before the officer can detain a person for more than a temporary period of time and/or conduct a frisk or pat down of the suspect.
Brignoni-Ponce extends this standard to the immigration enforcement agent. Today, with the advent of federal-state cooperative agreements under Section 287(g), the same standard is available for thousands of police officers across the nation in their collaborative effort with the federal government. Referred to as the Driving While Mexican case, Brignoni-Ponce not only allows ethnic appearance but also other factors, which could collectively lead agents to find reasonable suspicion based upon specific articulable facts. For instance, agents can consider the characteristics of the area where they encounter a vehicle, its proximity to the border, and their knowledge of alien traffic in the area. According to the Court, law enforcement can also take into account any of the following criteria: (1) the behavior of the driver (e.g. erratic driving or attempts to evade officers); (2) the type of vehicle and its transportation use (e.g. station wagons with large compartments for fold-down seats or spare tires); or (3) a vehicle's outward appearance (e.g. one heavily loaded or carrying an extraordinary number of passengers). In a not-too-convincing comment, the Court mentioned the Government's claim that some officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut!
IV. Mexicophobia and the Alleged Latino Security Threat
For decades this nation has been debating the threat posed by the Mexican influx and the browning of America. In the 1990s, Harvard professor Samuel P. Huntington expressed concerns about the growing Latino population, the changing face of America, and the clash of civilizations. Huntington seems to imply, the development of different religions will be a threat to civilizations. The development of many different kinds of religions, such as Buddism, Christianity and Islam, have created divisions and the divisions themselves are a danger to civilization. From this, we can imply that he may have a problem with the growth and development of different languages. Logically, since Europe is struggling with the acceptance of the Muslim religion and America is struggling with the existence of many different languages as a civilization there may be a rising conflict.
Unfortunately, this prejudicial thinking has fed the reservoir of hate that remains as a vestige of America's past. It has resulted in hate crimes against Mexicans in places like Pennsylvania and New York, states usually identified as symbols and bastions of liberty. It has created this Mexicophobia which has in turn led to claims and myths which cloud the immigration debate.
A. They Take Jobs from Unemployed Americans!
There is a renewed debate over whether undocumented immigration has a positive or negative effect on the economy of the United States. This debate is partly fueled by uncertainty and unawareness. The differences between native-born citizens and undocumented immigrants are often obvious. There are differences in culture, language, and education. In reality, these differences benefit the economy because instead of these two groups competing against each other, they complement each other.
Recently, Alabama enacted perhaps the most strident state immigration law to date. The passage has led to an exodus of immigrant workers, both undocumented and resident aliens who fear being jailed if they cannot convince police authorities of their lawful status. Many business people in the housing and agricultural arenas questioned the legislative wisdom. First, many Americans do not care for the back-breaking and menial salaries for working in the tomato and other agricultural harvest. Second, the 2011 tornados which razed several cities, including Tuscaloosa, created the need for workers to rebuild.
In March 2005, there were approximately 7.2 million unauthorized immigrants in the United States. This amounts to 4.9 percent of the 148 million workers in the nation. While the percentage of undocumented immigrants participating in the labor force is small, a common misconception is that they take our jobs! A majority of undocumented workers take low-wage and low-education jobs in employment sectors like construction, the service industry, production, installation, repair, and agriculture.
Immigrants are different from native-born workers in various ways. Generally, undocumented workers are younger, dominant in a language other than English, and unfamiliar with American culture. In addition, an estimated 32 percent of undocumented workers enjoy less than a ninth grade education. In contrast, among unemployed Americans, only 1.3 percent have less than a 9th grade education. An additional 17 percent of undocumented immigrants have attained an educational level between the 9th and 12th grades, but they have not graduated from high school.
The Urban Institute reported in March 2007 that there was a 6 percent drop in the number of native-born adults without high school diplomas between the years 2000-2005. This percentage is offset by a 22 percent increase of undocumented immigrants without a high school diploma. This study determined that the overall U.S. labor force is becoming better educated, despite the entry of so many less-educated immigrants. These differences between undocumented immigrants and native-born individuals explain what leads each group to search for jobs in different levels of the market.
A study conducted by the Center for American Progress found that it is highly unlikely that native-born Americans can fill the jobs held by undocumented workers. It is argued that if undocumented workers were taken out of American society, more low-skilled jobs with higher wages would become available for native workers. In fact, data indicate that the result would actually be a major shock to the economy, resulting in a shortfall of approximately 2.5 million low-skilled workers. This shortage of workers would hurt industries like agriculture, domestic services, and construction where the undocumented laborer is concentrated.
Economists point to two important facts that lead to the need for undocumented or at least some form of immigrant workers. First, the undocumented worker is supplying a skill level that is much in demand. Second, most Americans are too educated to work as chambermaids, roofers, and agricultural workers. The added diversity to the workforce of complementariness of skills is good for the economy as a whole because the undocumented immigrant performs services that would otherwise be more expensive or unavailable. Industries like lawn services and nail salons have led to increased use of these providers, services that were once only available to the wealthier Americans.
An example of this phenomenon of labor concentration occurred in the agricultural market. In 2004, a crackdown on illegal immigration resulted in a shortage of workers in the lettuce fields located in the Western region of the United States. This shortage of labor resulted in a $1 billion dollar loss to the lettuce industry when the fields remained un-harvested. Raising wages was more costly to the growers then leaving their crops to rot. Even in Vermont, there is a need for foreign workers. The Governor of Vermont, James Douglas, commented in 2006 that undocumented aliens work the dairy farms of Vermont, and he quickly added that they address a severe farm labor shortage in the state. State agriculture officials estimate the number at 2,000.
The agriculture industry is one that has grown on the backs of the undocumented. The industry, driven by a need for seasonal labor, uses a workforce that is a little more than one-half undocumented. The average hourly wage of agricultural field workers, $9.06, has remained at approximately 50 percent of the average wages of production workers in the non-farm sector. Recently Alabama enacted one of the most restrictive immigration laws aimed at punishing employers for hiring undocumented workers. It has been reported that this immigration law has resulted in a significant shortage of legal workers creating serious problems to the Alabama economy.
B. Undocumented Immigrants Drain Our Healthcare System
The General Accounting Office (GOA) published a report in May 2004 that focused on the correlation between undocumented immigrants and their impact on hospitals' uncompensated care costs. The GOA was not able to collect sufficient data because hospitals do not usually collect immigration status information from patients. The GOA found that:
The impact of undocumented aliens on hospitals' uncompensated care costs remains uncertain. Determining the number of undocumented aliens treated at a hospital is challenging because hospitals generally do not collect information on patients' immigration status and because undocumented aliens are reluctant to identify themselves.
This lack of information makes it difficult to determine the number of undocumented immigrants that are treated by hospitals. If hospitals question individuals in regards to their immigration status, they may face a civil rights violation. Title VI of the Civil Rights Act of 1964 provides: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The GOA found that the relationship between undocumented immigrants and hospitals' uncompensated care costs would continue to be difficult to determine unless more reliable information is available.
The RAND Corporation, a nonprofit organization that conducts research and analysis, conducted a study that measured undocumented immigrants' use of medical care in comparison to the rest of the population. This study found that undocumented immigrants use less medical care services than would be expected, in relation to their representation in the U.S. population. The RAND Corporation used the Los Angeles County 2000 survey that focused on adults between the ages 18-64. LA County was used because the distribution of types of immigrants is very similar to that of the United States as a whole. The survey report contains detailed information on immigrants' legal or visa status, health status, type and amount of health care used, and health insurance. The LA County study differs from the method used in the GAO's study because the LA County study surveyed the individuals in the sampling group, and the GOA surveyed the hospitals.
The RAND Corporation used statistics from the LA County survey and from the 2000 census. The study compared statistics between native-born individuals and foreign-born individuals. The foreign-born were then broken down into subcategories, which included: U.S. citizens, permanent residents, undocumented immigrants, and temporary legal immigrants. The RAND study found that undocumented immigrants are generally younger than the native-born and other immigrants. They are also healthier and less likely to suffer from chronic illnesses. The study also found that hospitalization rates were lower for foreign-born men and women as compared to the native-born. Only 11 percent of undocumented immigrants had been in the hospital within the two previous years, 58 percent had seen a doctor within the past year, 32 percent had never had a checkup, and 17 percent had never seen a doctor. The study found that hospital and doctors' visits were more common among both native-born and foreign-born women, probably due to pregnancy. But only 2 percent of the undocumented males had been hospitalized within the previous two years, 40 percent never had a check-up, and 23 percent had never seen a doctor. The RAND study found that the total national medical costs for the year 2000 was about $429 billion for those ages 1864. Of this total, $37 billion, or 8.5 percent, is attributed to the foreign-born population, and $6.5 billion or only 1.5 percent is attributed to undocumented immigrants.
The RAND Corporation translated these figures into taxes paid per household to finance medical care. In 2000, $89 billion was spent by the public sector to provide care for adults ages 18- 64. This cost the 105 million households in the U.S. $843 per household in 2000. However, only a total of $11 dollars was attributed to the cost associated with undocumented immigrants.
C. Undocumented Students and the Educational Budget Drain
In 1982, the United States Supreme Court found that a state's denial of a free public education to any student on the basis of citizenship was unconstitutional. In Plyler v. Doe the Supreme Court noted that: (1) there was no explicit congressional statement excluding illegal immigrant children from free education; (2) the state's argument of preserving limited resources for education for lawful residents was insufficient; and (3) there was insufficient basis to support the state's claim that it had an interest in protecting itself from an influx of illegal immigration. The Supreme Court further explained that there was no evidence that illegal immigration placed a burden on the Texas economy and this local attempt to combat illegal immigration was ineffective.
California, Texas, New York, Florida, Illinois, and New Jersey are the states with the highest concentrations of illegal immigrants. The Urban Institute's estimates, based on U.S. Census data, are that there are 1.6 million children of illegal immigrants under the age of 18 in the United States. In Texas, a former Comptroller of Public Accounts estimated the cost of educating the state's undocumented immigrant children at $957 million for 2004 2005. Another study by the Federation for American Immigration Reform (FAIR) puts the cost of educating undocumented immigrant children in Texas at $4 billion. The United States Department of Education reported the total expenditures for educating all Texas children at $30.9 billion for 2003 2004. With the current data, from the Texas Comptroller of Public Accounts and FAIR, total expenditures for educating Texas' illegal immigrant children are between 3 percent and 5.4 percent of the total cost of educating all Texas children.
This evaluation seems to re-enforce the reasoning of the Supreme Court in Plyler that preserving limited resources for education of lawful residents is insufficient. The cost to each of the 23 million Texans is eleven to twenty cents a day to educate the undocumented children of Texas. In our society the benefits of educating all children outweighs the costs of educating children of undocumented immigrants by providing a more productive group of citizens.
D. Undocumented Immigrants Present a Threat to America's Security
One example of the effective use of fear can be seen in the recent debate on immigration reform. Why are we as a country unable to reach some kind of consensus as to how to address the presence of millions of undocumented persons in this country? The author and conservative commentator Linda Chavez directly answers this question. In a column addressing the issue, Ms. Chavez states that the debate is all about [f] ear of the other'-of those who look or sound different, who come from poor countries with unfamiliar customs-has been at the heart of every immigration debate this country has ever had. Ms. Chavez went on to state:
Some people just don't like Mexicans-or anyone else from south of the border. They think Latinos are freeloaders and welfare cheats who are too lazy to learn English. They think Latinos have too many babies, and that Latino kids will dumb down our schools. They think Latinos are dirty, diseased, indolent and more prone to criminal behavior. They think Latinos are just too different from us ever to become real Americans.
She concluded by explaining that this fringe group of Americans, fewer than 10 percent of the general population, will never succumb to reason. In a stunning admission considering her conservative activism, Chavez described some of the members of this group:
Unfortunately, among this group is a fair number of Republican members of Congress, almost all influential conservative talk radio hosts, some cable news anchors-most prominently, Lou Dobbs-and a handful of public policy experts at organizations such as the Center for Immigration Studies, the Federation for American Immigration Reform, NumbersUSA, in addition to fringe groups like the Minuteman Project.
Certainly, the growth of the Latino population fuels this Hispanophobia. The total United States population reported by the 2000 Census was 281,400,000, with Latinos comprising 12.5 percent of that total (approximately 35 million). Fueled by immigration and high birth rates, Latinos in 2005 reached the number one position among ethnic minorities at 42.6 million. The 2010 Census revealed the Latino population grew to 50.5 million. As a result of this growth, the politically connected group that Chavez described blames Latino aliens for their unemployment. This generates animosity toward all persons of Latino descent, including citizens and resident aliens.
The public, encouraged by conservative talk show hosts, incessantly complain about the illegal alien problem, even stirring up a national debate to free two border agents who shot a smuggler even though they were convicted after the agents conspired to conceal the truth. Many resident aliens and citizens of Latino descent complain that their attempts to become acculturated are aggravated by constant contact with the alien invasion.
Political figures also exacerbate animosity against the alien community by misstating facts and sometimes plainly lying. In an interview with Fox News after the passage of SB 1070, Arizona Governor Jan Brewer explained that the law was needed due to the crime generated by the migrants: We cannot afford all this illegal immigration and everything that comes with it, everything from the crime and to the drugs and the kidnappings and the extortion and the beheadings. She provided more details, as to how law enforcement agents had found headless bodies in the desert, a claim the Arizona Guardian investigated and found to be completely false.
In an editorial in the Washington Post, the columnist remarked:
Brewer's mindlessness about headlessness is just one of the immigration falsehoods being spread by Arizona politicians. Border violence on the rise? Phoenix becoming the world's No. 2 kidnapping capital? Illegal immigrants responsible for most police killings? The majority of those crossing the border are drug mules? All wrong. . . . The scary claims of violence, in turn, explain why the American public supports the Arizona crackdown.
Shortly after these claims of an alien crime wave, the Arizona Republic reported that, according to statistics from the FBI and Arizona police agencies, the incidence of crime in Arizona border towns had been essentially unchanged for the ten years leading to 2010. For example, Nogales, Arizona reported twenty-three rapes, robberies and murders in 2000; a decade later, even with a larger population, there were only nineteen such crimes. The Pima County sheriff reported that the border has never been more secure, a statement corroborated by FBI statistics reporting that violent crime rates in all of the border-states are lower than they were a decade ago.
Notwithstanding this information, Senator John McCain claimed that the violence in his home state is the worst I have ever seen. The former presidential candidate then announced in a June 19, 2011 press conference that recent forest fires in Northern Arizona were caused by people crossing the border illegally. He then revealed his political motivation by stating that the remedy is to secure the border.
Historically, xenophobic views were always justified by an articulable national fear based on an event that affected the national security of the United States. Therefore, it is somewhat accurate to state that, based on the attacks of September 11, 2001, America went from being a nation of immigrants to a nation of suspects. As a result of the 9/11 attacks, the national government immediately began to combat this overwhelming threat of terrorism, focusing primarily on immigration. The first casualty among political priorities occurred when the negotiations between Mexico and the United States to adjust the status of over 3 million undocumented Mexican workers immediately ceased. Congressional interest then shifted to security-related issues involving admissions, border control, and alien tracking. The USA Patriot Act, the Enhanced Border Security and Visa Entry Reform Act, and the Homeland Act were all legislation directed at reforming immigration in response to this tragic event.
E. A Overview of the Recent Immigration Reform Efforts
Beginning with the Carter Administration and ending with the 1986 signing of immigration reform legislation by President Ronald Reagan, several members of the executive and legislative branches served on the Select Commission on Immigration and Refugee Policy (SCIRP). The1986 statute, known as the Immigration Reform and Control Act of 1986 (IRCA), included several approaches to reduce the unauthorized migrant population. IRCA imposed sanctions on employers of undocumented workers and granted amnesty to agricultural workers without the proper documents to work legally.
The Immigration Act of 1990 followed IRCA. It increased the number of immigration visas available to legal immigrants and only provided two provisions to combat unauthorized immigration. One proposal called for employer sanctions for those who knowingly hire undocumented persons. Many feared that such a law would adversely impact a Latino population that already experienced discrimination. Others saw it as the only practical way to discourage foreigners from coming to the United States to seek employment. To overcome discrimination fears, Congress added an anti-discrimination feature to the Act. Many have regarded it as a law that looked good for enforcement but that was unpopular since it hit big business. Consequently, until 2006, enforcement hardly occurred.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) added more crimes, including misdemeanors, to the definition of an aggravated felony. One effect of having an aggravated felony conviction is to qualify for removal. One particularly strident aspect of AEDPA involved a mandate that the aggravated felony deportation provision would include some of these minor criminal convictions regardless of their having become final years before the effective date of the 1996 legislation. In signing one of the 1996 Immigration Acts into law, President Bill Clinton noted the inherent unfairness in fighting terrorism by targeting regular hard-working immigrants: This bill also makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents.
As 2006 was coming to a close, Congress debated issues regarding the illegal alien problem. Some members of the House wanted to make mere presence in an unauthorized status an aggravated felony and Congress passed such a bill in 2005. They would also criminalize anyone who offered assistance to these illegal people. Republican House members envisioned a world in which America's southern border would be protected by a 700-mile-long fence, and this resulted in the Secure Fence Act of 2006. As we near the 2012 elections, the politicization and abuse of this lightning rod immigration issue continues in America. For instance, in October 2011, a leading Republican presidential candidate proposed an electrified and potentially fatal fence at the border with Mexico.
Not all Latinos are undocumented persons, and not all undocumented persons are Latinos. Since the United States is a nation in which Latinos comprise the largest ethnic minority, this maxim is especially critical to the equation of justice. Ethnic appearance is not evidence of criminality. It should not be a factor, except in those criminal investigations in which the ethnicity or race of the suspect is paramount. Our nation fought Nazi Germany in great part because of the dictatorial profiling, harassment, and efforts to annihilate the Jewish people. Those horrific experiences should teach any law-abiding and freedom-loving people that policies that authorize local (and federal) police to detain individuals so that the police can see their papers can only be seen as an unreasonable practice which violates civil rights and liberties.
Yet in the year 2012, over thirty-five years after Brignoni-Ponce, complaints of police detentions based on ethnicity or on lack of reasonable suspicion of criminal activity continue. The constitutional rights that are being violated adversely impact not only undocumented persons but also lawful resident aliens and native-born United States citizens. All persons that comprise these three Latino population groups are entitled under the Fourth Amendment to protections against unreasonable searches and seizures.
A. A Dissent from the Abuse of the Reasonable Suspicion Concept
Ten years ago, a federal appellate judge expressed his views in a quite passionate fashion. In a case emanating from the Texas border area with Mexico, Judge Jacques Wiener of the Fifth Circuit expressed his intent to write a dissenting opinion at a later time. The appeal involved another of countless cases involving the reasonable suspicion concept. The judge filed his comments a few months later, and it became quite apparent that he was perturbed by the haphazard method in which federal courts were upholding allegations of reasonable suspicion and essentially converting them into probable cause findings.
Judge Wiener lamented about the most recent opinion in which the court had added to the burgeoning body of jurisprudence-that at least figuratively-has engrafted onto the Fourth Amendment's proscription of unreasonable searches and seizures the caveat except in proximity to our border with Mexico. He further complained how the government's so-called War on Drugs and its efforts to interdict illegal immigration hadled to a public hysteria that has in turn impeded rational judgment and logic.
While one might conclude that the judge probably had calmed a bit after this catharsis, it seems he was just getting started. He complained of the judiciary's evisceration of the Fourth Amendment in the vicinity of the Mexican border as yet another jurisprudential nadir and classified immigration stop cases in the same company with the Japanese internment case, the African descent person is a noncitizen case, and the separate-but-equal case as among the judiciary's most shameful failures to discharge our duty of defending constitutional civil liberties against the popular hue and cry that would have us abridge them.
Judge Wiener then expressed how the federal courts had contributed to efforts by officers to engage in the charade of articulating facts' just so that we can point to something as the underpinnings of our retrospective findings of reasonable suspicion when judges uphold vehicle stops that otherwise offend the Fourth Amendment. In support of accusations, the jurist described how prior decisions inconsistently justified stops:
The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky-clean; the driver was suspiciously dirty, shabbily dressed and unkept, or the driver was too clean; the vehicle was suspiciously traveling fast, or was traveling suspiciously slow . . . ; the [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van] is the kind of vehicle typically used for smuggling aliens or drugs; the driver would not make eye contact with the agent, or the driver made eye contact too readily; the driver appeared nervous (or the driver even appeared too cool, calm, and collected); the time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when they tend to smuggle contraband or aliens; the vehicle was riding suspiciously low (overloaded), or suspiciously high (equipped with heavy duty shocks and springs); the passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod-erect; the vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its high-beam lights on, or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on; and on and on ad nauseam.
Judge Wiener explained how, in a prosecutorial effort to justify the temporary detention and then permanent seizure in the case, the agent provided statistics, which established approximately 200 detentions on the rural road in question, which stops had resulted in thirty apprehensions. The judge sarcastically then exclaimed: Bragging about netting 30 apprehensions out of 200 stops is analogous to a major league baseball player's bragging about a .150 batting average hardly an all-star performance. . . . These statistics really prove that 85% of the stops were mistakes!
In closing remarks, Judge Weiner stated, Shame on us. At least the war that prompted the Supreme Court to condone the internment of Japanese Americans was a full-fledged, Congressionally-declared, shooting war. He proceeded to compare the effort to capture and remove undocumented persons in the United States to the days of the thirteenth century crusades by the Catholic Church against a group of alleged heretics known as Cathars. After Catholic propaganda proved only partly successful in defeating the Cathars, the Pope saw only one option, a crusade known as the Albigensian Crusade, which led to the indiscriminate deaths of 20,000 suspected heretics.
Unfortunately, much of our political rhetoric has hit rock bottom with the suggestion that the border between Mexico and the United States be wired with electricity sufficient to kill any intruders. Ten years have passed since Judge Wiener expressed his frustrations. Unfortunately, innocent Latino residents of the United States-and this includes not only noncitizen and citizen residents but also undocumented workers-are still being subjected to the rigors of war and to harassing violations of civil rights.
Many years ago, historian Rodolfo F. Acuna wrote a book about the history of Mexican Americans and Chicanos from the days of the war with Mexico to modern times. He documented how Chicanos faced abuses at the hands of the police, immigration agents, school officials, and court personnel. Unfortunately, even Latinos whose families have resided in the United States for generations are subjected to disparate treatment in official circles. One only has to remember the two humiliating stops that United States District Court Judge Filemon Vela endured as he travelled to his court assignment along the Texas-Mexico border. First and second generation Latinos experience even more problems than individuals like Judge Vela. Linguistic limitations at times cause an officer to suspect that a person is not an authorized person. On the other hand, Latinos object to an officer relying exclusively on the speaking of Spanish as the basis for reasonable suspicion of undocumented status since many American Latinos speak Spanish on a regular basis.
B. A Need for Judicial and Legislative Protections of the Latino Community
The principle enunciated in Brignoni-Ponce-that Mexican appearance is a permissible factor in determining reasonable suspicion-must be denounced. An avenue by which this can occur emanated from a federal appellate court over a decade ago. In United States v. Montero-Camargo, the Ninth Circuit Court of Appeals concluded that, given the increased percentage of our nation's Latino population twenty-five years after Brignoni-Ponce, Latino appearance provides such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required. The court nevertheless recognized that appearance can be a relevant factor when a particular suspect has been identified as being of a specific racial or ethnic descent.
In denying the motion to suppress the marijuana, the district court found a sufficient basis for the investigatory stop. The three-judge panel affirmed. Among the factors used to confirm the police allegations of reasonable suspicion, these two courts included the police observation that the occupants of the two suspicious vehicles appeared to be Latino. The en banc appellate court then considered the panel's ruling and upheld the outcome, i.e., that the police had reasonable suspicion to stop the vehicles to investigate further. However, the full Ninth Circuit Court of Appeals eliminated the Latino ethnic appearance factor as a valid specific and articulable fact, which was permitted by Brignoni-Ponce, and then determined that the remaining factors sufficed to establish reasonable suspicion.
In arriving at the dictum suggesting that ethnic appearance could be relevant, the district court relied heavily on now-outdated demographic information. The Brignoni-Ponce Court discussed the 1970 population figures for the Mexican-American population in the states bordering Mexico. Montero-Camargo declares that the 2000 demographic data showing a population among Latinos of 34 million demonstrate that the statistical premises on which the Brignoni-Ponce dictum relies had become outdated. The concerns over racial profiling have obviously become more acute with the 2010 Latino population being reported at 50.5 million.
What can be done to overcome this discriminatory treatment of Latinos? First, as a nation, we must abide by the constitutional principles upon which our nation is founded. The Fourth Amendment is one of the most sacred of the Bill of Rights. It is the source of many protections of our everyday lives. Yes, those of us who follow the Supreme Court have witnessed decisions, which appear to undermine some of those principles. However, we also see the sincerity of the opinions in which the Justices on the High Court seek to justify an outcome on the basis of precedence and original meaning of the concepts. So long as we pledge our faith in the law and eliminate prejudices and stereotypes from our mental assessments, even in the difficult immigration enforcement effort, we can make the Fourth Amendment protection of freedom from unreasonable searches and seizures a reality.
. Judge Lupe S. Salinas is a Professor of Law at Thurgood Marshall School of Law, Texas Southern University, Houston, Texas where he teaches Criminal Procedure and Civil Rights.
. Fernando Colon-Navarro is Associate Dean & Professor of Law at Texas Southern University's Thurgood Marshall School of Law.