updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 609
rich and diverse democracy, and materially impair our efforts to maintain
a fair and just society.” 263
When the Court finally recognized the impact of stigmatization
stemming from segregated schools in Brown v. Board of Education, it
did so based on social science research. 264 No specific study has been
completed yet on the impact of race-based immigration law enforcement
on targeted groups. However, many scholars and advocates describe
how race-based immigration enforcement perpetuates the idea
that people of Latino appearance are “others.” 265 This otherness contributes
to the sense among Latinos and other targeted populations that
they do not “belong” and that even the many who are citizens do not
have full-fledged citizenship recognition. 266 This is similar to the impact
of racial profiling in criminal law that perpetuates the perception
of African Americans as a crime-prone group. 267 As a result, innocent
individuals suffer “fear, anxiety, humiliation, anger, resentment, and
cynicism” about being stopped 268 and shape their daily activities so as
to avoid contact with the police. 269 The recognition on behalf of the
Department of Justice and extensive scholarship support at least a
more serious consideration of stigmatization than the Supreme Court’s
cursory dismissal in Brignoni-Ponce. Preventing such stigmatic harm
is in the interest of both the public and the targeted individuals. 270
Despite these concerns, not all scholars recognize such stigmatization
as weighty enough to discourage the use of race in immigration
enforcement, even if its parallel would discourage racial profiling in
the criminal law context. Alschuler acknowledges that a discriminatory
purpose for an equal protection claim should not be necessary to
prove discrimination when a police practice “stigmatizes a race in the
263. DOJ RACE GUIDANCE, supra note 30, at 1 (citing Montero-Camargo, 208 F.3d R
at 1135).
264. Brown, 347 U.S. at 494–95 & n.11.
265. See Perea, supra note 61, at 2; BNHR REPORT TO UNHRC, supra note 83, at R
14; Johnson, Against Racial Profiling in Immigration Enforcement, supra note 108, at R
717.
266. See Rodríguez, supra note 68, at 230–32; Johnson, Against Racial Profiling in R
Immigration Enforcement, supra note 108, at 717. R
267. Johnson, Challenging Racial Profiling, supra note 29, at 353. R
268. End Racial Profiling Act of 2005, S. 2138 § 2(a)(14) (listing congressional
findings).
269. Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559 (1989) (analyzing
impact of subtle attacks, known as microaggressions, on African Americans).
270. Cf. Brown, 347 U.S. at 494 (“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.”).