updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 583
Many Latinos who are U.S. citizens or who are in the country
legally are routinely stopped and questioned about their citizenship,
making them feel as though they do not have the right to be in their
own community. 92 A majority of residents in Arizona border communities
reported that they felt that Border Patrol agents stopped people
for simply having brown skin. 93 Similarly, many residents of South
Texas believe that Border Patrol agents “systematically stop and detain
too many blameless Hispanics.” 94 Some Latinos have even filed
class action lawsuits seeking declaratory or injunctive relief for the
discriminatory actions of the Border Patrol, but these suits have been
dismissed due to lack of standing. 95
Immigration enforcement policy has also had disparate impact on
other racial groups. For example, from April 1999 to April 2000,
95%—or seventy-nine of eighty-three—Amtrak passengers arrested
by the Border Patrol in Havre, Montana, were not from countries with
“sizable Caucasian populations.” 96 Forty-five of these passengers
were from Mexico, and the others were from Asia, Africa, and South
and Central America. 97 Immigration enforcement agents at airports
often presume that persons of African ancestry are entering the coun-
States citizens, 9.7% legal residents, 8% asylum seekers, and 4.4% other. Am.
Friends Service Comm., Abuse Will Not Be Tolerated: A Call for Accountability Amid
Increasing Human Rights Abuses Along the South Texas/Mexico Border (1998), reprinted
in Interhemispheric Resource Ctr., 6 BORDERLINES 3 (Nov. 1998), available at
http://americas.irc-online.org/borderlines/PDFs/bl50.pdf (last visited May 24, 2008).
92. See BORDER ACTION NETWORK, JUSTICE ON THE LINE: THE UNEQUAL IMPACTS
OF BORDER PATROL ACTIVITIES IN ARIZONA BORDER COMMUNITIES 3 (2004), http://
www.borderaction.org/PDFs/justice_on_the_line.pdf [hereinafter JUSTICE ON THE
LINE].
93. The results of the survey were that 41% in Pirtleville, 66% in Naco, 70% in
Nogales, and 77% in Douglas felt they were stopped just for having brown skin. Id.
94. S. 989: The End Racial Profiling Act of 2001: Hearing Before the Subcomm. on
the Constitution, Federalism, and Property Rights of the S. Comm. on the Judiciary,
107th Cong. 115 (2001) [hereinafter ERPA Hearing] (statement of National Council
of La Raza).
95. In Hodgers-Durgin v. De La Vina, the court held the named Latino plaintiffs
did not show sufficient likelihood that the Border Patrol in Arizona would commit
future stops violating their Fourth Amendment rights. 199 F.3d 1037, 1044 (9th Cir.
1999). Each plaintiff had only been stopped once by the Border Patrol in a ten year
period. Id.; see also Farm Labor Org. Comm. v. Ohio State Highway Patrol, 95 F.
Supp. 2d 723, 733 (N.D. Ohio 2000) (finding that Latino plaintiffs did not have standing
to enjoin state patrol officers from stopping Latino motorists and interrogating
them about their immigration status).
96. Some Suspect Racial Profiling in Border Patrol’s Checks on Amtrak, BIS-
MARCK TRIB., May 21, 2000. The Border Patrol explained that “[a]gents rely heavily
on their experience” and do not only consider a person’s race. Id.
97. Id.; see also infra notes 184–96 and accompanying text (discussing the arrest of R
Abdul Ameer Yousef Habeeb in Havre, Montana).