Abstract:

The public and the courts have begun a long overdue reconsideration of race profiling, the formal and informal targeting of African Americans, Latinos, and other racial minorities for investigation on account of their race in criminal law enforcement. Race, however, remains central to the enforcement of the United States immigration laws, particularly in the southwestern part of the country. In fact, the Supreme Court stated in 1975 that "Mexican appearance" constitutes a legitimate consideration under the Fourth Amendment for making an immigration stop.

At first blush, the reliance on "Mexican appearance" in immigration enforcement might not appear problematic given the perception that a large percentage of undocumented persons are of Mexican origin. However, only about one-half of the undocumented persons in the United States are Mexican nationals. More importantly, the vast majority of Latinos in the United States are U.S. citizens or lawful permanent residents. These persons suffer the brunt of race-based immigration enforcement.

Although the Court has yet to revisit this area, at least one court of appeals has questioned the continued lawfulness of reliance on race in immigration enforcement. The need for re-evaluation is readily apparent. Indeed, the armed seizure of Elian Gonzalez in Miami at the break of dawn by the Immigration & Naturalization Service, at least for a moment, focused public attention on whether the agency's enforcement and related activities comported with the Fourth Amendment. Race profiling especially deserves such scrutiny because it disproportionately burdens persons of Latin American ancestry, the vast majority of whom are U.S. citizens or lawful immigrants. Generally speaking, whether they are undocumented or lawful immigrants, or U.S. citizens, persons of Latin American ancestry or appearance are more likely than other persons in the United States to be stopped and interrogated about their immigration status. To many, all Latinos are presumed "foreigners" subject to removal from the country. The suspect immigration status of Latino citizens and lawful immigrants undermines their claim to full membership in U.S. society.

The legal endorsement of race-based immigration stops contrasts sharply with the deep suspicion of racial classifications in virtually any other body of public law. Under modern equal protection doctrine, the Supreme Court has held that all racial classifications are constitutionally suspect and subject to strict scrutiny. Nevertheless, not until recently has any arm of government seriously questioned the racial discrimination that survives in immigration enforcement.

Race-based immigration enforcement is unique in its express use of racial classifications. It, however, is part of a body of laws replete with disparate racial impacts. As the prevailing wisdom would have it, Congress has removed the last vestiges of invidious discrimination from the immigration laws. However, the facially neutral, hypertechnical immigration laws provide for, among other things, per-country ceilings that create long waits for potential immigrants from certain developing countries (more likely than not populated by people of color), for a diversity visa system that through a complicated formula masks a strong preference for immigrants from northern Europe, for a public charge exclusion that disparately impacts poor and working people from developing nations, and for a variety of removal grounds that adversely affect certain immigrant communities. All of these seriously disadvantage potential immigrants from Latin America and reduce their rates of immigration. They, and the operation of the immigration laws generally, deserve careful scholarly investigation. Consequently, although focusing on race profiling in immigration enforcement, the issues analyzed in this article implicate larger civil rights concerns that cut to the core of equal citizenship and full membership in the national community.

Part II of this Article summarizes the critique of race profiling in criminal law enforcement and analyzes the law that, although offering remedies that are flawed in certain ways, prohibits exclusively race-based investigatory stops. Part III analyzes the impact of the Supreme Court decisions permitting consideration of race to justify a stop of an individual in immigration law enforcement. Part IV sketches the civil rights implications of racially discriminatory immigration enforcement.

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