updating brignoni-ponce - New York University School of Law

598 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
been detained because, as an Iraqi refugee, he did not have to go
through special registration. 196
Under Manzo-Jurado, the Ninth Circuit would permit border protection
officers in this case to have relied in part on Habeeb’s racial
appearance so long as, under the totality of the circumstances, this
race consideration was combined with other factors in order to create a
reasonable suspicion. These cases reflect how the discomfort with the
Brignoni-Ponce rule and with racial profiling that had been growing
before September 11 was abandoned in the aftermath of September
11. Still, in light of the demographic, political, and social changes that
the United States has experienced since 1975 and the proposal of the
End Racial Profiling Act, the permissibility of considering race to perform
an immigration investigatory stop is ripe for review.
III.
UPDATING BRIGNONI-PONCE AND INCORPORATING THE
CONSIDERATION OF RACE INTO THE FOURTH
AMENDMENT BALANCING TEST
Under Brignoni-Ponce, Border Patrol officers may detain or stop
persons for questioning about their right to be in the United States
without violating the Fourth Amendment as long as the officers have a
reasonable suspicion that those detained may be immigrants. 197 In
creating this standard, the Court first considered the balance of the
public interest in allowing such stops against the burden on individual
liberty such stops impose. 198 The Court then addressed how racial
appearance may be relied upon, holding that officers may consider
race but must supplement their consideration of race with at least one
other suspicious factor. 199 The balancing test did not take into account
the public interest and individual liberty concerns related to stigmatization
and other harms that can be caused by such racially-based
196. Id. Habeeb was detained for seven days before being released after an attorney
explained to CBP that Habeeb did not have to go through special registration. David
Bowermaster & Jennifer Sullivan, U.S. Government Apologizes to Illegally Detained
Iraqi Refugee, SEATTLE TIMES, Aug. 23, 2007.
197. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). The Court attempts
to limit the exercise of authority granted by §§ 287(a)(1) and (3) by permitting officers
on roving patrol, except at the border and its functional equivalents, to stop
vehicles “only if they are aware of specific articulable facts, together with rational
inferences from those facts, that reasonably warrant suspicion that the vehicles contain
aliens who may be illegally in the country.” Id.
198. Id. at 879–80.
199. Id. at 886–87.