updating brignoni-ponce - New York University School of Law

612 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
officers in Riverside, California, demanded to see the drivers’ licenses
of all Latinos working in an avocado grove and threatened to turn
them over to the Border Patrol. 286 In a publicized effort to rid the
community of undocumented immigrants, local police in a suburb of
Phoenix, Arizona, stopped citizens and lawful immigrants who appeared
to be of Mexican ancestry and were speaking Spanish. 287
While they were not stopped solely because of their Mexican appearance,
simply speaking Spanish—something which over 28 million
people in the United States do 288 —does not give rise to a reasonable
suspicion that someone is an undocumented immigrant even if coupled
with Mexican appearance. 289 Such incidents show why the federal
government should not commandeer local law enforcement
officers into enforcing immigration laws, 290 and also help explain why
undocumented immigrants as well as citizens and legal residents may
fear or resent local police officers. 291
3. Public and Private Discrimination
An additional harm a court could consider is the possibility that
the permissible use of race in immigration enforcement is likely to
encourage discrimination by law enforcement officers and throughout
286. Panel on Immigration Post-September 11, supra note 283, at 99. R
287. Johnson, Challenging Racial Profiling, supra note 29, at 356. R
288. According to the 2000 census, 28.1 million people spoke Spanish in their home.
U.S. CENSUS BUREAU, CENSUS 2000 BRIEF: LANGUAGE USE AND SPEAKING ABILITY
(2000), http://www.census.gov/prod/2003pubs/c2kbr-29.pdf (last visited July 24,
2008).
289. Compare this limited basis for reasonable suspicion to the seven factors enumerated
by Brignoni-Ponce Court. United States v. Brignoni-Ponce, 422 U.S. 873,
884–85 (1975); see supra text accompanying note 48. R
290. Arguments against local police departments enforcing immigration laws include
that the department would drain their funds, lose trust with the community, and run
the great risk of poorly enforcing the complicated federal immigration regulations.
McKenzie, supra note 244, at 1160–62. There is also the fear that every traffic stop R
could be cast as an immigration stop and that the “‘zeal to enforce immigration laws
could lead unwittingly to racial profiling.’” Id. at 1163 (quoting Sylvia R. Lazos
Vargas, Missouri, the “War on Terrorism,” and Immigrants: Legal Challenges Post
9/11, 67 MO. L. REV. 775, 821 (2002)).
291. See, e.g., Press Release, Am. Civil Liberties Union, FAMILIES SUE OTERO
COUNTY SHERIFFS OVER ILLEGAL IMMIGRATION RAIDS: Civil Rights Groups Say Sheriffs
“Broke Trust” with Community (Oct. 17, 2007), http://www.aclu-nm.org/
News_Events/news_10_17_07.html (describing suit brought against the Otero
County, New Mexico, Sheriff’s Department for entering homes of Latino families and
to interrogate about immigration status); Panel on Immigration Post-September 11,
supra note 283, at 99 (describing that a survey by NOW Legal Defense found that R
fear of deportation is the most significant reason that battered immigrant women are
much less likely than non-immigrant women to report abuse).