updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 611
white citizens. 278 This actually alienates minority communities who
would otherwise be most helpful to law enforcement and discourages
minority communities from reporting crimes, 279 including Border Patrol
abuses. 280
Even though local law enforcement officials are not empowered
to conduct investigatory immigration stops, 281 this line is unclear in
light of governmental comments indicating acceptance of state and
local law enforcement of civil immigration laws. 282 Former Attorney
General John Ashcroft went as far as to say that state and local police
have inherent authority to enforce immigration laws despite the fact
that immigration historically has been a uniquely federal issue. 283
This has confused local law enforcement officers. For example, after
a federal judge in Ohio ordered the Border Patrol to stop making discriminatory
stops, 284 the Ohio Highway Patrol began conducting them
instead until a federal court ordered them to stop illegally confiscating
green cards from legal migrant workers. 285 In May 2003, local police
278. See End Racial Profiling Act (ERPA) of 2007, S. 2481 § 2(a)(15) (“Racial profiling
damages law enforcement and the criminal justice system as a whole by undermining
public confidence and trust in the police, the courts, and the criminal law.”);
Peter Verniero, Attorney Gen. of N.J., Interim Report of the State Police Review
Team Regarding Allegations of Racial Profiling 4, 7 (1999).
279. McKenzie, supra note 244, at 1163; Akram & Johnson, supra note 102, at R
340–41 (noting that those of Middle Eastern origin would be the most helpful to law
enforcement in investigating certain terrorist events but that they are discouraged from
cooperating for fear of being deported).
280. The Tucson Office of Inspector General told a reporter in 2000 that they receive
one criminal complaint per day against Border Patrol agents. AM. FRIENDS SERV.
COMM., Situational Analysis: A Policy of Impunity, in ABUSE REPORT 2000: COM-
PLAINTS OF ABUSE ON THE U.S. MEXICO BORDER AND IN THE SAN DIEGO REGION BY
LOCAL AND FEDERAL LAW ENFORCEMENT AGENCIES, http://webarchive.afsc.org/
sandiego/brdr0104.htm (last visited March 29, 2008); see also Human Rights Abuses
on Border are Alleged to OAS Panel, ST. LOUIS POST-DISPATCH, Aug. 13, 1992, at 1C
(quoting American Friends Committee representative as claiming that many Border
Patrol abuses go “‘unreported, since many of the victims fear retaliation, deportation
or have no faith in the system’”).
281. State and local governments can enforce criminal immigration regulations, but
they cannot enforce civil immigration regulations. McKenzie, supra note 244, at R
1153. This is due to the legislative history of the INA and the complexity of civil
regulations. Id.
282. See Clear Law Enforcement for Alien Removal (CLEAR) Act of 2005, H.R.
3137 § 2 (declaring “law enforcement personnel of a State or a political subdivision of
a State have the inherent authority of a sovereign entity to investigate, identify, apprehend,
arrest, detain, or transfer to Federal custody aliens in the United States”).
283. Panel Discussion, Immigration Post-September 11, 9 HARV. LATINO L. REV.
91, 99 (2006) [hereinafter Panel on Immigration Post-September 11].
284. Ramirez v. Webb, 719 F. Supp. 610, 618–19 (W.D. Mich. 1989).
285. ERPA Hearing, supra note 94, at 117 (statement of National Council of La R
Raza) (citing Farm Labor Org. Comm. v. Ohio State Highway Patrol, 991 F. Supp.
895 (N.D. Ohio 1997)).