updating brignoni-ponce - New York University School of Law

2008] UPDATING BRIGNONI-PONCE 619
This conclusion has the danger of being interpreted as a presumption
that Latinos, Asians, and Middle Easterners are violating immigration
laws, and such a presumption causes significant harm to those
communities. However, immigration enforcement officers will most
likely consider race whether the law allows it or not. 327 Part of the
officers’ task is to determine whether a person is an immigrant. That
determination necessarily involves drawing conclusions about the person’s
national origin. Racial appearance, while not determinative
about a person’s national origin, is closely intertwined with it. Officers
may put forth a good faith effort to ignore racial appearance, but
to completely ignore racial appearance would be difficult. At least
under Brignoni-Ponce a judge can inquire into the Border Patrol officers’
motivations, to ensure that their decision was not entirely based
on race. Such an inquiry would be more difficult if the consideration
of race was completely prohibited because officers would be conditioned
to present race-neutral motivations.
CONCLUSION
Should a bill ending racial profiling apply to immigration enforcement?
After analyzing the variety of factors that the Court considered
in arriving at the Brignoni-Ponce decision and the updated
statistics, present political conditions, and additional harms a modernday
court would have to take into account, this Note concludes that,
under the Fourth Amendment, the consideration of racial appearance
is appropriate. It cannot, however, serve as the sole reason for making
the stop. Unlike the Court’s decision in Brignoni-Ponce, this conclusion
is not based on the likelihood that someone appearing to be Latino,
Asian, or Middle Eastern will be an undocumented immigrant.
In fact, this likelihood is quite small.
Rather, this Note concludes that the public interest in enforcing
immigration laws, even if they were enacted to subordinate certain
racial groups, is quite strong, since the laws were passed by elected
branches of government. The harm caused by a perceived or real presumption
that people appearing to be of a certain racial group do not
belong in this country is also real, and it affects citizens, documented
immigrants, and undocumented immigrants. However, it is not clear
that eliminating the acceptable consideration of racial appearance by
Border Patrol officers would redress that injury completely since na-
327. See Alschuler, supra note 138, at 241 (arguing that ordering officers enforcing R
immigration laws near the border not to consider racial appearance makes perjury by
those officers almost inevitable); supra notes 305–307 and accompanying text. R