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608 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
amount to a “tax” imposed on a particular racial group, 256 and they
may encourage Latinos to attempt to “pass” as Spanish or white. 257
Even if profiling is rational to the extent that undocumented immigrants
must inherently be foreign and many of them do not appear to
be white, it still sends a message of exclusion to the affected groups
and can “punish, embarrass, and humiliate innocent people, whose
skin color is used as a proxy for criminal conduct.” 258
Like the Court in Plessy v. Ferguson, 259 the Court in Brignoni-
Ponce and Martinez-Fuerte ignores that the stigmatization of being
stopped by immigration law enforcement could be a significant
harm. 260 This error skews the balancing test on both sides because it
is in both the public interest and an individual’s liberty interest that
citizens are protected from discrimination and stigmatization. 261 The
Ninth Circuit recognized that “[s]tops based on race or ethnic appearance
send the underlying message to all our citizens that those who are
not white are judged by the color of their skin alone.” 262 Even the
Department of Justice guidelines on the use of race by federal law
enforcement agencies recognize that racial profiling in law enforcement
“perpetuate[s] negative racial stereotypes that are harmful to our
256. See KENNEDY, RACE, supra note 218, at 157–59; Johnson, Against Racial Pro- R
filing in Immigration Enforcement, supra note 108, at 710–11 (comparing the harms R
to those sustained by innocent African Americans who are stopped by police officers
on account of their race); supra note 218. R
257. Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, R
at 714–15. Passing is the “ability of individuals to change race.” Ian F. Haney Lopez,
The Social Construction of Race: Some Observations on Illusion, Fabrication, and
Choice, 29 HARV. C.R.-C.L. L. REV. 1, 47 (1994). If a certain race is taxed by dignitary
harms, then members of that race may be encouraged to pass as members of
another race. For example, if someone of Mexican ancestry thought being Mexican
was looked upon unfavorably, that person may claim to be of Spanish ancestry to pass
as white. See Kevin R. Johnson, “Melting Pot” or “Ring of Fire”?: Assimilation and
the Mexican American Experience, 85 CAL. L. REV. 1259, 1272–74 (1997).
258. Johnson, Challenging Racial Profiling, supra note 29, at 344; see ERPA Hear- R
ing, supra note 94 (statement of Sen. Charles Schumer, Member, S. Subcomm. on the R
Constitution, Federalism and Property Rights) (describing emotions resulting from
being profiled as rage, helplessness, and total marginalization); Motomura, supra note
230, at 415. R
259. 163 U.S. 537, 543 (1896) (ignoring the stigmatization caused by segregated
carriages because a “statute which implies merely a legal distinction between the
white and colored races . . . has no tendency to destroy the legal equality of the two
races”).
260. United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Martinez-Fuerte,
428 U.S. 543, 560 (1976).
261. Cf. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“To separate [African
American children] from others of similar age and qualifications solely because of
their race generates a feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be undone.”).
262. United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000).