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610 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
eyes of objective observers.” 271 He also recognizes that a police practice
that “systematically subjects the members of a race to searches or
seizures at a higher rate of offending” violates the Fourth Amendment
unless it is appropriately tailored to advance a compelling state interest.
272 Alschuler fails, however, to extend these conclusions to the
immigration context. In doing so, he ignores that people appearing to
be Latino are subjected to deportation at a rate disproportionate to
their composition of the undocumented population. 273 While he states
that associating Latino appearance with illegal immigration is a
“harmful stereotype,” he thinks “it probably does less harm than when
profiling suggests that either blacks or Latinos are more likely than
others to have committed serious crimes.” 274 Perhaps Alschuler is attempting
to take issue with the analogy that, if the use of race in immigration
were to be cast in terms of criminal law, such use of race
would not be permitted. 275 Still, it is unfair to conclude that the
stigma of being labeled an outsider and unwelcome in a person’s
country of residence is less harmful than the stigma of being labeled a
drug dealer.
2. Tension Between Law Enforcement and the Targeted
Community
An additional harm of race-based immigration enforcement is
that the targeted groups may harbor deep cynicism about the judicial
system and be less likely to cooperate in the reporting and investigation
of criminal activity. 276 Local law enforcement relies on community-based
policing as a valuable tool to fight crime, but its efficacy
depends on law enforcement having a relationship of trust with the
community. 277 Police officers and executive officials have recognized
that disparate treatment creates mistrust of the government by non-
271. Alschuler, supra note 138, at 268. R
272. Id.
273. Even though Latinos comprise just about 80% of the undocumented immigrant
population, they account for 90% of those removed from the United States. UNDOCU-
MENTED IMMIGRANTS: FACTS AND FIGURES, supra note 107; Johnson, Against Racial R
Profiling in Immigration Enforcement, supra note 108, at 678. R
274. Alschuler, supra note 138, at 244. R
275. See Johnson, Against Racial Profiling in Immigration Enforcement, supra note
108, at 694 (“Could we imagine the Supreme Court stating that ‘the likelihood that R
any given person of [African American] ancestry is [a criminal] is high enough to
make [African American] appearance a relevant factor’ in a criminal stop? Such a
clearly discriminatory statement would provoke justified outrage.”).
276. Johnson, Challenging Racial Profiling, supra note 29, at 344–45. R
277. See McKenzie, supra note 244, at 1160. R