updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 591
this Note does not include instances of such particularized description,
but it does include general reliance on race to any degree.
Other than increased congressional findings supporting the need
for such a bill, the ERPA has changed very little over the years. 148
According to the findings, statistical evidence suggests that racial profiling
is a national problem in need of a federal response. 149 While the
focus of the 2001 subcommittee hearings was on the racial profiling of
African Americans, Latinos, and Asians, 150 the post-2001 versions of
the ERPA mention that “many Arabs, Muslims, Central and South
Asians, and Sikhs” have been subject to searches and seizures based
only on generalized, not specific, suspicion. 151 The ERPA also declares
the 2003 Department of Justice guidelines on racial profiling to
be insufficient, particularly with regard to federal law enforcement officers
charged with protecting national security or the country’s borders.
152 These officers are instructed that they may consider race or
ethnicity when making investigatory stops. 153
The ERPA requires federal, state, and local law enforcement to
take steps to eliminate racial profiling. 154 This includes federal law
enforcement agencies involved in the enforcement of immigration and
customs laws, 155 such as ICE agents and Border Patrol officers. 156 In
doing this, the ERPA implicitly overrules the Supreme Court’s decision
in Brignoni-Ponce that Mexican appearance is a relevant factor
148. Compare ERPA of 2007, S. 2481 § 2, with ERPA of 2005, S. 2138 § 2, and
ERPA of 2004, S. 2132 § 2, and ERPA of 2001, S. 989 § 2.
149. ERPA of 2007, S. 2481 § 2(a)(6)–(7). For example, a 2001 Department of
Justice report found that “although Blacks and Hispanics were more likely to be
stopped and searched, they were less likely to be in possession of contraband” than
Whites. Id. § 2(a)(10).
150. See ERPA Hearing, supra note 94. R
151. ERPA of 2007, S. 2481 § 2(16); ERPA of 2005, S. 2138 § 2(16); ERPA of
2004, S. 2132 § 2(15). Generalized suspicion does not link a specific individual to
criminal conduct.
152. ERPA of 2007, S. 2481 § 2(a)(4)–(5); ERPA of 2005, S. 2138 § 2(a)(4)–(5);
ERPA of 2004, S. 2132 § 2(a)(4)–(5). See generally DOJ RACE GUIDANCE, supra
note 30. R
153. DOJ RACE GUIDANCE, supra note 30, at 9 (citing United States v. Brignoni- R
Ponce, 422 U.S. 873, 886–87 (1975)).
154. Such steps include prohibiting racial profiling, training on issues of racial profiling
in law enforcement, collecting data, and establishing meaningful procedures for
investigating allegations of racial profiling. ERPA of 2007, S. 2481 §§ 201, 301.
155. ERPA of 2007, S. 2481 § 3(4)–(5).
156. See generally U.S. Immigration & Customs Enforcement, Dep’t of Homeland
Sec., About ICE, http://www.ice.gov/about/index.htm (last visited June 17, 2008);
U.S. Customs & Border Patrol, Dep’t of Homeland Sec., This is CBP, http://
www.cbp.gov/xp/cgov/about/mission/cbp_is.xml (last visited June 17, 2008).