updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 615
whether to stop a car and question its occupants about their right to be
in the United States.
IV.
ELIMINATING THE PERMISSIBLE USE OF RACE IN
IMMIGRATION ENFORCEMENT BY LEGISLATION:
LIMITING JUDICIAL REVIEW WITHOUT
CURBING DISCRIMINATION
What if the Court came to the opposite conclusion, and race
could not be considered? Or what if Congress actually passed a version
of the End Racial Profiling Act that prohibited the consideration
of race in immigration enforcement? Some advocacy groups and
scholars would likely view the removal of racial considerations from
immigration enforcement as a victory. 300 However, the question remains
whether such a decision would improve the situation for Latinos
in practice, since facially race-neutral laws do not necessarily
result in race-neutral practices. 301
National origin is undeniably a relevant factor in immigration enforcement.
Undocumented immigrants are by definition foreign, and
approximately 95% of them come from countries with large nonwhite
populations. 302 Instructing immigration enforcement officers not to
consider a factor that is intrinsic to the legal violation they are investigating
seems counterproductive. 303 First, if officers were to follow
such an instruction, law enforcement might suffer. 304 Second, the
more likely result is that officers would continue to consider race even
300. See, e.g., ERPA Hearing, supra note 94, at 80 (statement of Laura W. Murphy, R
Director, American Civil Liberties Union, Washington, D.C.); id. at 118 (statement of
National Council of La Raza); KENNEDY, RACE, supra note 218, at 148; Johnson, R
Against Racial Profiling in Immigration Enforcement, supra note 108, at 680 (“Mere R
legal prohibition in all likelihood would not immediately end race profiling; barring
the INS from using race profiling, however, would at least begin the difficult task of
purging racial considerations from border enforcement. As is true in the realm of racebased
criminal law enforcement, prohibition of the express use of race would shift our
focus to efforts to enforce the legal norm.”); Gowie, supra note 168, at 254 (arguing R
the Court should “hold that Border Patrol agents cannot rely upon factors that readily
occur in the law-abiding population, such as Hispanic ancestry . . . ”).
301. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 310 (1880) (permitting use
of educational requirements to keep African Americans off juries).
302. See UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES, supra note 107; R
Thompson, supra note 22, at 1006–07 (“[T]here is a correlation between apparent R
Mexican ancestry and the law enforcement objective of preventing Mexicans from
entering the country without documentation.”).
303. Thompson, supra note 22, at 1006–07. R
304. Id. at 1007. For example, the reasons for stopping vehicles may become even
more arbitrary—which would mean invading the individual liberty interest of even
more people, although the discriminatory impact may not be as pronounced.