Does the Recent Supreme Court Decision Mean ICE Agents Can Racially Profile?
Last week, the Supreme Court issued a ruling in Noem v. Vasquez Perdomo, lifting the U.S. District Court for the Central District of California’s temporary block on ICE’s use of racial profiling in Los Angeles to conduct immigration enforcement. This ruling has, understandably, caused tremendous confusion and anxiety among immigration and civil rights lawyers, and members of the immigrant community, who, like myself, are wondering whether the Constitution’s long-standing prohibition on law enforcement’s use of racial profiling is now meaningless.
However, it’s important to first take a step back and note where this ruling sits from a procedural standpoint. The decision was an interim ruling, not the final word. The lower court’s order temporarily stopping ICE from carrying out certain operations in Los Angeles is on pause while the merits of that order are on appeal with the U.S. Court of Appeals for the Ninth Circuit. This means the case now goes back through the appeals process, and eventually the Supreme Court will rule on the merits of the issue.
This should give us some comfort but not a lot. Courts usually do not issue stays, nor do they provide preliminary injunctive relief, unless they think there is a good argument in the same direction on the merits. The Supreme Court signaled as much in this case. That combined with the composition of the current Court means the likelihood the stay will eventually be lifted is small.
When the Court does rule on the merits, however, it will have to deal with the apparent contradiction it has caused with its recent ruling against affirmative action. See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. In those cases, the Court ruled that race cannot be used as a factor in admissions decisions because doing so violates the Equal Protection Clause. It will be interesting to see the kind of mental gymnastics the Court will have to engage in to distinguish Noem from Students for Fair Admissions. The Court’s decision in Noem does not say that ICE agents are free to arrest people solely because of their race, and is careful to do so. Justice Kavanaugh’s opinion seems to emphasize the fact that race is only one factor among others that DHS can consider when conducting immigration enforcement. These factors, such as “presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, … the type of work one does,” and “speaking Spanish or speaking English with an accent” can be used alongside “apparent race or ethnicity” to conduct investigative stops to enforce violations of the Immigration and Nationality Act (INA). Yet using race as a factor was exactly what universities were doing prior to Students for Fair Admissions. It seems clear that the Court is saying race is a prohibited factor when giving minorities a leg up, but perfectly fine to use when targeting terrorizing communities with dragnet immigration enforcement.
Racial Profiling in Policing
In the seminal case Terry v. Ohio, the Supreme Court held that absent a warrant, stops and searches must be based on reasonable suspicion supported by “specific and articulable facts.” Race alone is not such a fact. This means that in the criminal context, law enforcement must have reasonable suspicion based on “specific and articulable facts” that criminal activity is underfoot to make a lawful stop and search. In the immigration context, the Government must have reasonable suspicion that the individual is illegally present in the United States to stop that person for brief questioning about their immigration status.
So what “specific and articulable facts” help a law enforcement official establish that a person is in the country illegally? The Court has answered this question in part, holding in United States v. Brignoni-Ponce that Border Patrol agents could not stop vehicles solely because the occupants of those vehicles appeared to be of Mexican ancestry; that is, apparent ethnicity cannot by itself justify a stop under the Fourth Amendment. The Court has also held that, even if pretextual stops are legal under the Fourth Amendment, racially discriminatory law enforcement violates the Equal Protection Clause. See Whren v. United States. That is, selective enforcement based on race, particularly if intentional, is illegal.
But there is no right without remedy. The Court has increasingly made it harder to bring and win civil rights cases against federal officials in recent years, if those officials were acting in their official capacity. In Bivens v. Six Unknown Named Agents, the Court held that a plaintiff may sue a federal official for violations of the plaintiff’s Fourth Amendment rights. In Carlson v. Green, Bivens was extended to include a prisoner’s Eighth Amendment claim; and in Davis v. Passman, a Congressional staffer’s gender discrimination claim against the Equal Protection clause. Since that time, however, the Court has done nothing but shrink the scope of Bivens remedies. In its recent ruling in Hernandez v. Mesa, in particular, the court held that a Border Patrol agent could not be sued by the victim of cross-border shooting for excessive force under the Fourth Amendment because immigration enforcement (deemed synonymous with national security and foreign relations, in that opinion) is a “special factor” where Bivens remedies are inappropriate. This means that a person who is the victim of racial profiling at the hands of a federal official enforcing immigration law likely cannot assert their constitutional rights in court.
Beyond this limitation, however, this Court’s majority clearly does not understand how racist policing (and racism generally) works. Requiring a plaintiff to show that they were stopped solely based on their race or ethnicity is a tall order. Human brains simply do not make decisions in that way, and multiple, interrelated factors almost always go into the decision to racially profile someone. Speaking English with an accent, for example, is usually an indicator that the person is of a race or ethnicity that is not White. How does a person demonstrate that they were stopped due to their race alone?
The above notwithstanding, it is nearly impossible to demonstrate what was inside the mind of a law enforcement officer when making the decision to stop or arrest a person. In theory, plaintiff could provide documentation of the officer using racial epithets while conducting the stop. In the age of social media and smart phones, at least this is more likely, as evidenced by the case of the 18-year-old U.S. citizen, Kenny Laynez-Ambrosio who caught his brutal arrest (and ICE officers making fun of him) on video. But placing this level of expectation on a plaintiff is unfair and unrealistic, particularly in the context of the stark power differential during a stop or arrest by a group of armed ICE officers versus their civilian target.
Showing a pattern or practice of biased enforcement could also, in theory, be another avenue. A plaintiff could subpoena documents, memos, and conversations among law enforcement agents in a department demonstrating a pattern of racism and racist enforcement department-wide. Due to the Court’s decision in FDIC v. Meyer, however, holding that only federal officials, not agencies, can be sued for violations of constitutional rights, bringing an action against DHS or ICE is no longer an option.
Conclusion and Next Steps
It seems that the Court has given ICE officers a blank check to use widespread racial profiling to identify potential violators of immigration law, even against U.S. citizens, without any remedies for those who experience violations of their civil rights. While we cannot change this decision overnight, we can help protect ourselves and our communities. Racial profiling is not new. And communities empowered with knowledge, courage, and the ability to document violations are better off for it.
Here are practical steps you can take, and educate others in your community to take, to prepare for an encounter with ICE:
Assert your constitutional rights if approached by ICE. You have the right to remain silent and the right to speak with a lawyer.
Carry your immigration documents with you in case you are stopped and questioned.
If someone you know is arrested, you can locate them using ICE’s online detainee locator: locator.ice.gov/odls.
In Hawaii, ICE detainees are usually sent to the Federal Detention Center in Honolulu (FDC). People held there can make phone calls and send emails, but they must request access.
Release on bond is not guaranteed. Some people may remain detained for extended periods while their case moves forward.
Always speak to an attorney as soon as possible if you or a loved one is arrested by ICE. Legal representation can make a significant difference in the outcome.
Final Thoughts
The Supreme Court’s interim decision does not give ICE a free pass to racially profile on paper, but it may make it more likely in practice. Communities should remain alert, informed, and prepared. At Patrie Law Associates, we believe racial profiling is unconstitutional, wrong, and harmful to the fabric of our community.
If you or someone you know has been arrested by ICE in Hawaii, reach out to a qualified immigration attorney immediately to understand your rights and explore possible defenses.