updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 593
“driving while Black” and Latinos/as for “driving while Brown.” 163
As Senator Chuck Schumer explained, “Latino Americans face a
double whammy, first, of being profiled as law-breakers and, if that
doesn’t hold up, as illegal immigrants.” 164 As previously mentioned,
a survey of over 300 families in Arizona border communities revealed
that a majority of residents felt that Border Patrol agents stopped people
for simply having brown skin. 165 Some organizations have even
appealed to international bodies asserting that the United States is not
following international law prohibiting discriminatory policies. 166
Such discrimination in immigration law, unfortunately, is not unusual
and is not necessarily unconstitutional, as the previous sections
discussed.
C. How Brignoni-Ponce Has Been Updated By Courts: Montero-
Camargo, Manzo-Jurado, and Habeeb
While Brignoni-Ponce remains good law, lower courts have
tweaked its reasoning and application in the face of shifting demographic
statistics, social consciousness, and political atmosphere. As
early as 1981, the Fifth Circuit noted that the presence of someone
appearing to be of Latin origin was not suspicious in places where that
characteristic describes a large portion of the population. 167 Even
when the Border Patrol officer relies in part on a person’s Latino appearance,
the Fifth Circuit accords it very little weight. 168 Rather, the
163. Johnson, Challenging Racial Profiling, supra note 29, at 343–43; see ERPA of R
2005, S. 2138 § 2(a)(10)–(12); David A. Harris, The Stories, the Statistics, and the
Law: Why “Driving While Black” Matters, 84 MINN. L. REV. 265, 276–88 (1999);
Thompson, supra note 22, at 957. R
164. ERPA Hearing, supra note 94, at 6 (statement of Sen. Charles Schumer, Mem- R
ber, S. Subcomm. on the Constitution, Federalism and Property Rights). Latinos are
often profiled as drug traffickers or dealers. See United States v. Rodriguez, 976 F.2d
592, 595–96 (9th Cir. 1992) (describing profile Border Patrol officers use for drug
dealers as including Hispanic appearance). This Note addresses only the enforcement
of immigration laws. The racial profiling law enforcement officers engage in when
enforcing drug laws is outside this article’s scope.
165. JUSTICE ON THE LINE, supra note 92, at 3. R
166. See ACLU ICCPR REPORT, supra note 162, at 99, 103 (arguing before the UN R
that ICCPR Article 26 is being violated by continuing racial profiling); BNHR RE-
PORT TO UNHRC, supra note 83, at 14; Sergio Bustos, Frustration Over Illegal Immi- R
gration Mounts, GANNETT NEWS SERVICE, April 21, 2005, at 3A; Human Rights
Abuses on Border are Alleged to OAS Panel, ST. LOUIS POST-DISPATCH, Aug. 13,
1992, at 1C.
167. United States v. Orona-Sanchez, 648 F.2d 1039, 1042 (5th Cir. 1981) (“Nor is
there anything vaguely suspicious about the presence of persons who appear to be of
Latin origin in New Mexico where over one-third of the population is Hispanic.”).
168. See United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993) (noting
that Chavez-Villarreal’s Arizona license plate indicated that he was from a state with