updating brignoni-ponce - New York University School of Law

602 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
Alschuler argues, is enough to justify the resulting “ethnic tax.” 218 He
reasons that the situation presented in Brignoni-Ponce was a justifiable
use of race because supposedly 85% of undocumented immigrants
were from Mexico. 219 He recognizes there is a tradeoff between distributive
justice and efficiency when race is considered, but he concludes
that this is acceptable when an “agent’s focus on Latinos taxes
the members of this group at a rate only slightly higher than their rate
of offending.” 220 However, he poses a hypothetical in which Latinos
only constitute half of the undocumented immigrant population and
concludes that, since this classification has limited power to exclude,
concentrating enforcement on Latinos would be unjust. 221 Alschuler
offers little guidance of where the line can be drawn other than somewhere
between 50% (not just) and 85% (just). 222 Under Alschuler’s
logic, which considers the undocumented immigrant population on a
national level, only Latino appearance can be used in immigration enforcement,
since approximately 80% of undocumented immigrants are
from Latin America. 223
In essence, Alschuler is saying that the proportion of non-Latinos
that are undocumented immigrants—20% 224 —is too small to justify
expending immigration enforcement efforts on non-Latinos. This argument
is particularly unfair to Latinos because the percentage of Latinos
who are undocumented is similar to that of Asians and Middle
Easterners. According to rough figures, about 10% of Latinos in the
United States are undocumented immigrants. 225 Approximately 8% of
218. Alschuler, supra note 138, at 241. Although Alschuler never defines the term, R
Randall Kennedy referred to the harms an innocent minority experiences in being
stopped by law enforcement as a “tax” imposed on persons because of their ancestry.
RANDALL KENNEDY, RACE, CRIME, AND THE LAW 159 (1997) [hereinafter KENNEDY,
RACE]. Kevin Johnson criticized this term as smoothing “over the emotional turmoil,
humiliation, and embarrassment caused by the actual experience of a race-based stop”
and failing “to appreciate how race profiling undermines full and equal citizenship
and stigmatizes Latino U.S. citizens and lawful immigrants in the United States.”
Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, at R
713; see also infra notes 276–277 and accompanying text. R
219. Alschuler, supra note 138, at 239. R
220. Id. at 241.
221. Id. at 239–40.
222. Id.
223. UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES, supra note 107. R
224. About 10% of undocumented immigrants are from Asia, 5% are from Canada
and Europe, and 5% are from the rest of the world. UNDOCUMENTED IMMIGRANTS:
FACTS AND FIGURES, supra note 107. R
225. Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, R
at 709.