Obama Justice Dept. Argued in Favor of Using Race As a Relevant Factor Among Others to Justify Immigration Stops

By Edwin Mora | August 24, 2010 | 11:17 AM EDT

(CNSNews.com) – In at least three court cases, President Obama’s Justice Department has argued in favor of federal law enforcement officers using race as a factor in determining whether to stop someone for a suspected immigration violation.

It has done so despite the fact that the Justice Department and the Department of Homeland Security (DHS) report that they do not engage in “racial profiling.”

The Justice Department’s legal arguments in defense of federal law enforcement officers using race as one factor among others in making immigration stops are based on the 1975 Supreme Court decision, U.S. v. Brignoni-Ponce. In that case, the court held 9-0 that an officer making an immigration stop must be able to cite “specific articulable facts” that “reasonably warrant suspicion” that illegal aliens are present.
“Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country,” the court ruled in Brignoni-Ponce.
The Court said law enforcement officers could not stop a car merely because the occupants appeared to be of Mexican descent, but that they could consider such an appearance as one factor in making a determination that there was “reasonable suspicion” that illegal aliens were present.
“Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country,” the Supreme Court ruled. “Large numbers of native born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and, even in the border area, a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but, standing alone, it does not justify stopping all Mexican-Americans to ask if they are aliens.”
In 2003, the Justice Department published a “Guide Regarding the Use of Race by Federal Law Enforcement Agencies.” The guide said federal authorities “may not consider race or ethnicity except to the extent permitted by the Constitution and laws of the United States.”
In explaining what was permitted under the Constitution and the laws, the guide cited the precedent of Brignoni-Ponce.
Thus the rule of Brignoni-Ponce decision—that ethnicity alone cannot be used to make an immigration stop but can be considered as one relevant factor—has been adopted by both Immigration Customs and Border Enforcement (ICE) and Customs and Border Protection (CBP), both components of DHS.  

A Justice Department spokeswoman told CNSNews.com that department could not provide CNSNews.com with a full list of cases in which U.S. attorneys working for the Obama administration cited Brignoni-Ponce in federal court to justify immigration stops.

However, court records indicate there have been at least three such cases.  

On May 15, 2009, U.S. Attorney John Murphy for the Western District of Texas cited Brignoni-Ponce in stating the government’s case in U.S. v. Aldo Antonio Hernandez-Moya.

Here Hernandez-Moya was appealing his conviction for transporting illegal aliens for financial gain and possession of counterfeit documents on the grounds that the stop of his vehicle had not been based on reasonable suspicion. 

“Although ethnicity of a vehicle’s occupants does not alone justify a reasonable belief that they are aliens, the Supreme Court has stated that it is a relevant factor,” the U.S. Attorney argued to the U.S. Court of Appeals for the 5th Circuit. 

“In the instant case, the Hispanic ethnicity of the occupants in Appellant’s vehicle was a relevant consideration but was not the sole factor supporting reasonable suspicion that the Appellant’s vehicle was involved in the transportation of illegal aliens,” added the brief.
Hernandez-Moya’s appeal was denied. 
On July 2, 2009, U.S. Attorney Matt Dummermuth submitted a memorandum in U.S. District Court for Northern Iowa opposing a motion by Agriprocessors to suppress evidence that had been collected in a search of its plant. The memorandum cited Brignoni Ponce to justify evidence obtained by ICE during the search.
“Defendant makes the allegation, without citation to any factual support, that ICE agents relied solely on race to detain workers,” argued the U.S. attorney. “ICE agents detained everyone at the plant long enough to determine if they were lawfully authorized to reside or work in the United States. This included the detention of workers regardless of race.
"Moreover, ICE agents detained, and ultimately arrested for deportation, Caucasians as well as workers of Hispanic ethnicity. Defendant asserts the detention of the workers constituted an arrest. First, as explained above, regardless of whether detention of the workers constituted an arrest, defendant lacks standing to challenge the detention.
"Second, the detention of the workers was lawful. The detention lasted only long enough for the ICE agents to determine whether the person had legal authorization to reside and work in the United States.”
The U.S. attorney furthered this point with a footnote that said: “Regardless, whether a person is of Hispanic origin is a relevant factor for officers to consider, among others, in determining whether to detain someone. See United States v. Brignoni-Ponce.”
On Dec. 22, 2009, U.S. Attorney Andrew Baxter for the Northern District of New York cited Brignoni-Ponce in opposing pretrial motions in the case U.S. v. Charles Davidson et al.
The defendants, said the U.S. attorney, were “indicted in connection with conspiracies involving the encouragement, transport, concealment and harboring of illegal aliens.”
“Davidson,” said the U.S. attorney, “accuses the government of suggesting an ‘unconscionable interference’ that [ICE] knew the subject IFCO workers were illegal aliens because they were Hispanic.”
“While a stop based on the Mexican ethnicity of the occupants of a vehicle alone cannot be justified, appearance and ethnicity can be ‘a relevant factor’ in satisfying a reasonable suspicion standard for Fourth Amendment purposes,” contended the U.S. Attorney.  
The 1975 Brignoni-Ponce decision has long been taken as a governing precedent defining the circumstances under which federal law enforcement officers can make immigration stops.
“Under Attorney General Eric Holder, the Department of Justice regularly makes such arguments and the courts regularly accept them,” Gabriel J. Chin, a professor at the University of Arizona Rogers College of Law, told CNSNews.com. 
Chin wrote about the cases mentioned in this report in a July 13 op-ed in the Washington Post.
CNSNews.com asked both ICE and CBP whether “your agency considers Mexican or Hispanic appearance a relevant factor, among others, during enforcement activities."
ICE spokeswoman Gillian Brigham, in a written response, told CNSNews.com that ICE is not focused on “sweeps or raids to target undocumented immigrants indiscriminately.”
Joanne Ferreira, a CBP spokeswoman, told CNSNews.com, “U.S. Customs and Border Protection does not use racial profiling.”
She added that CBP “adheres” to Justice Department guidelines on the use of race by federal law enforcement. Those guidelines are partly governed by Brignoni-Ponce.
What follows is a transcript of the responses of ICE and CBP to CNSNews.com’s question.
CNSNews.com: Does your agency consider Mexican or Hispanic appearance a relevant factor among others during enforcement activities?
Gillian Brigham, ICE, responded in writing: ICE is focused on smart, effective immigration enforcement that prioritizes efforts first on those dangerous criminal aliens who present the greatest risk to the security of our communities, not sweeps or raids to target undocumented immigrants indiscriminately.
In a world of limited resources, ICE enforcement activities must be based on tough, sensible priorities. These priorities include:
-- Criminal offenders and national security threats;
-- Recent border violators, whether visa overstays or people who snuck across the border;
-- Those who game the system, whether by ignoring orders of deportation, reentering the country after deportation, or by gaining status through fraud.
Our priorities are based on:
-- Promoting public safety and national security;
-- Securing the border;
-- Restoring integrity to the system.
CBP's Joanne Ferreira: U.S. Customs and Border and Border Protection does not use racial-profiling, and we strive to treat all travelers with respect and in a professional manner while maintaining our mission to protect all citizens and visitors of the United States.
In a follow-up email, Ferreira wrote: In 2004, DHS adopted the Department of Justice's (DOJ) "Guidance Regarding the Use of Race by Federal Law Enforcement Agencies."  The DOJ guidance articulates DHS's policy against racial profiling, and, as a component of DHS, CBP adheres to the DOJ guidance.