In a decision that rubber-stamps racial profiling by Immigration and Customs Enforcement agents in Los Angeles — and could accelerate deportations across America — the Supreme Court on Monday ruled that federal agents do not only need reasonable suspicion to target someone for immigration detention, leaving the door open for any rationale immigration agents choose to use, including racial profiling.
The ruling comes after the Trump administration asked the Supreme Court to block an order from a lower court that prohibited agents from using four racially loaded categories to justify arrests: apparent ethnicity, language spoken or accent, presence at a location where immigrants were believed to gather, or working in a particular kind of job. The order had snaked through the high court’s emergency, or “shadow,” docket since Aug. 7.
The decision overturns, for now, an order by U.S. District Judge Maame Ewusi-Mensah Frimpong that had temporarily halted ICE agents in Los Angeles from making arrests or stops without reasonable suspicion. U.S. citizens and immigrants had been detained under the Trump administration’s directive to the Department of Homeland Security, often by masked and sometimes armed men. Frimpong found those raids were done illegally and, specifically, in violation of the Fourth Amendment.
Justice Brett Kavanaugh wrote the opinion for the 6-3 decision.
Immigration officers, under the Immigration and Nationality Act, are allowed to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States” and that includes “brief” detention for questioning as well if there is reasonable suspicion that a crime has been committed. In this case, the crime would be being an “illegal alien in the United States,” Kavanaugh wrote.
“Whether an officer has reasonable suspicion depends on the totality of the circumstances. Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors,” Kavanaugh wrote.
People in the U.S. who are here illegally and are “avoiding” being stopped or singled out by law enforcement for questioning are “evading the law,” he wrote.
That makes these people’s interests not so “weighty,” legally speaking, he opined.
Seemingly casting aside the issue of the Fourth Amendment, Kavanaugh wrote that when it comes to stops of individuals who are in the U.S. legally but may find themselves under questioning by immigration agents nonetheless, the questioning in those circumstances is “typically brief and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.”
Kavanaugh said he both recognized and fully appreciated that “many (not all, but many) illegal immigrants come to the United States to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families,” but “the fact remains … that, under the laws passed by Congress and the President, they are acting illegally by remaining in the United States — at least unless Congress and the President choose some other legislative approach to legalize some or all of those individuals now illegally present in the country.”
But the majority in the decision ignores the reality on the ground, according to Justice Sonia Sotomayor. (She was joined in her dissent by Justices Elena Kagan and Ketanji Brown Jackson.)
“We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent,” Sotomayor wrote.
One Latino U. S. citizen, she pointed out, “feel[s] like [he] need[s] to carry [his] passport for protection, in case federal agents stop [him] again.”
Another Latino U. S. citizen similarly “worries that as a visibly Latino man, he could be detained” if he does not carry his passport, but “decided against [doing so] because he believes that as an American, he should not have to live like that in his own country,” Sotomayor wrote.
The federal government “has all but declared that all Latinos, U. S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” she added.
With the stay on Frimpong’s order lifted while litigation is pending, federal immigration agents in Los Angeles can resume questioning or stopping people based simply on their ethnicity, language or occupation, or whether they are present in a certain location that leads law enforcement to believe they may be in the U.S. illegally.
When Solicitor General D. John Sauer argued for the stay to be lifted on behalf of the Trump administration, he remarked that “no one thinks speaking Spanish or working in construction creates reasonable suspicion.”
But, he was quick to argue that “in many situations, such factors, alone or in combination can heighten the likelihood that someone is unlawfully in the United States.”
According to the U.S. Census Bureau, America’s Hispanic population is the largest minority group in the United States and Spanish is spoken in 62% of all U.S. homes. The bureau reported that Hispanic and Latino people had reached a population of roughly 63.6 million people, or about 19% the total U.S. population. In Los Angeles alone, there are roughly 2 million Latino or Hispanic people.