updating brignoni-ponce - New York University School of Law
updating brignoni-ponce - New York University School of Law
updating brignoni-ponce - New York University School of Law
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620 LEGISLATION AND PUBLIC POLICY [Vol. 11:567<br />
tional origin is an intrinsic part <strong>of</strong> being an immigrant, and this <strong>of</strong>ten<br />
overlaps with racial appearance. Thus, <strong>of</strong>ficers would likely still consider<br />
racial appearance and simply produce a race-neutral reason for<br />
conducting the stop by relying on numerous proxies or constructing<br />
reasonable suspicion post hoc. Any victory implied by removing racebased<br />
immigration enforcement from the books would be diminished<br />
by the fact that race would likely still be considered but without judicial<br />
scrutiny.<br />
If Congress were to ban immigration law enforcement <strong>of</strong>ficers’<br />
reliance on race by passing a bill like the End Racial Pr<strong>of</strong>iling Act—<br />
overturning Brignoni-Ponce—then the courts would have to enforce<br />
it. However, challenging courts to scrutinize an <strong>of</strong>ficer’s reliance on<br />
race promotes a more honest conversation about stereotypes and racism.<br />
This inquiry, in addition to training Border Patrol <strong>of</strong>ficers about<br />
what totality <strong>of</strong> circumstances rises to the level <strong>of</strong> reasonable suspicion,<br />
will, in the long run, serve the public interest more than deceptive<br />
neutrality ever could.
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