Justice Brett Kavanaugh and racial proxies

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

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The Supreme Court on Sept. 8 lifted a lower court judge’s order prohibiting immigration agents from considering physical appearance and language use, among other factors, when deciding to stop and question people about possible immigration law violations. Though the court did not explain its reasoning, Justice Brett Kavanaugh’s separate concurrence suggests that at least one member of the apparent six-justice majority believes the Fourth Amendment to the U.S. Constitution permits race-based immigration policing.

The court’s order in Noem v. Vasquez Perdomo stays a temporary restraining order issued by U.S. District Judge Maame Ewusi-Mensah Frimpong in July barring federal officials from stopping, even briefly, people based on their “apparent race or ethnicity”; “[s]peaking Spanish or English with an accent”; “presence at a particular location”; and “the type of work one does.” Frimpong’s order applied to the Central District of California only, which includes Los Angeles and six surrounding counties. The U.S. Court of Appeals for the 9th Circuit had rejected the Justice Department’s request to stay Frimpong’s order, prompting an appeal to the Supreme Court. The justices’ decision was unsigned and, at a mere four sentences, did not provide any explanation of the justices’ reasoning, common in cases that the court decides on its emergency docket.

Though Vasquez Perdomo highlights recent immigration operations in California, the litigation’s legal dispute centers on a constitutional clause typically associated with criminal law enforcement activities: the Fourth Amendment. Aside from permitting arrests based on probable cause to believe that the arrestee has committed a crime, the Fourth Amendment also allows government officials to briefly stop and question someone without first obtaining a warrant based on “reasonable suspicion” that the person is engaging in illegal activity. In making that stop, the official “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The Vasquez Perdomo lawsuit tests the Fourth Amendment’s limits regarding what constitutes “reasonable suspicion.” In its application for a stay from the Supreme Court, the government relied on United States v. Brignoni-Ponce, a 1975 decision in which the court concluded that Border Patrol agents can consider “Mexican appearance” to gauge potential violations of immigration law near the country’s southwestern border. To identify who looks Mexican, agents can consider “mode of dress and haircut,” Justice Lewis Powell wrote on behalf of his colleagues. Powell acknowledged that there are many U.S. citizens with “the physical characteristics identified with Mexican ancestry,” but “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” The justices were especially swayed by the government’s claim that there were between 1 and 12 million unauthorized migrants living in the United States in the early 1970s – 85% of whom, immigration officials said, were Mexican citizens. Whether a person appears to be Mexican is just one of many factors that officers can consider “in deciding whether there is reasonable suspicion to stop a car in the border area,” the court announced.

Kavanaugh’s concurrence in Vasquez Perdomo relies heavily on Brignoni-Ponce’s acceptance of race-based immigration policing. Across his 10-page opinion, Kavanaugh cites Brignoni-Ponce nine times. Five of those references come in two paragraphs explaining that the Fourth Amendment favors the government’s position. The Fourth Amendment gives law enforcement officers the flexibility to consider “any number of factors,” Kavanaugh explained, quoting Brignoni-Ponce. For that reason, immigration agents in Los Angeles and surrounding counties could constitutionally consider the “high number and percentage” of migrants living in the region in violation of immigration law; that they “tend to gather in certain locations” to look for work; that they “often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction” because these “do not require paperwork”; that many “do not speak much English”; and their “apparent ethnicity.” To Kavanaugh, it is constitutionally permissible and “common sense” that these factors “constitute at least reasonable suspicion of illegal presence in the United States.”

Despite going to the effort of providing his reasoning, Kavanaugh does not explain how immigration agents determine which people “do not speak much English” or how they identify ethnicity. He notes, correctly, that “many” people living in the Los Angeles area without the federal government’s permission “come from Mexico or Central America.” But it is one thing for a person to have been born in a particular eight-country region (which includes Belize, where English is the official language and about three-quarters of the population speak it) and another thing for immigration agents to know, first, where a specific individual hails from and, second, how much English they speak.

Neither country of origin nor English-language ability are readily apparent through observation, and neither is a good indicator of a person’s legal right to live in the United States. In Los Angeles County alone, more than half of residents who were born outside the United States are naturalized U.S. citizens. Meanwhile, in a county where 55% of the population ages five and older speaks a language other than English at home but 58% of that group also speak English at least “very well,” according to data from the U.S. Census Bureau, there is every reason to think that most of the people in L.A. who speak a language that isn’t English also speak a lot of English. For that reason, in a region where multilingualism is common, the language that agents hear a person talking – assuming they even do hear a person talking before stopping them – is not a good indicator of what languages the person can speak.

Kavanaugh also fails to explain how immigration agents should determine a person’s ethnic appearance. Though he cites Brignoni-Ponce for support, he neither explicitly embraces nor rejects Powell’s explanation that “mode of dress and haircut” can help agents choose who to target. Whatever Kavanaugh thinks of the constitutional relevance of fashion choices, he unmistakably invites immigration agents to bring policing based on ethnicity into the 21st century. As they do, they are likely to find that many of the people they target are in fact U.S. citizens: Almost half the residents of Los Angeles County – 48% – identify as Hispanic or Latino, and almost three-quarters of those who are of working age are U.S. citizens. Indeed, two of the California residents suing DHS are U.S. citizens whom immigration agents stopped and questioned.

In a dissenting opinion, Justice Sonia Sotomayor – joined by Justices Elena Kagan and Ketanji Brown Jackson – harshly criticized her colleagues on the court’s right flank. The court’s order permits government officials to target people who “look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little,” Sotomayor wrote.

Unlike the other justices in the majority, Kavanaugh went well beyond what was necessary to side with the government on the court’s emergency docket. By issuing a 10-page concurrence, he didn’t just explain his reasons for siding with the Trump administration’s contentious approach to immigration law enforcement in the L.A. area. Kavanaugh also made clear that, in his view, immigration agents can use multiple proxies for race without fear of judicial interference.