Undocumented criminal procedure

UCLA Law Review

Volumn 58, Issue 6, 2011, Pages 1543-1616

  Carbado, Devon W ^a   Harris, Cheryl I ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 80054056436     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (170)

1. See, e.g., Ingrid V. Eagly, Prosecuting Immigration, 104 NW. U. L REV. 1281 (2010).
2. See Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and Constitutional Lau of Immigration, 46 UCLA L. REV. 1 (1998)
3. Juan F. Perea, Introduction to IMMIGRANTS OUT!: THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). Early rules regarding naturalization-that is, who could become a citizen-were defined in explicitly racial terms. The Naturalization Act of 1790 restricted citizenship to white persons, and this restriction remained in place until 1952.
4. Devon W. Carbado, Yellow by Law, 97 CALIF. L REV. 633 (2009). Blacks were also juridically excluded from citizenship, as affirmed by the Supreme Court in the Dred Scott decision.
5. See Dred Scott v. Sandford, 60 U.S. 393 (1856).
6. See, e.g., Raquel Aldana, On Rights, Federal Citizenship, and the "Alien," 46 WASHBURN L.J. 263, 306-07 (2007)
7. Raquel Aldana & Sylvia R. Lazos Vargas, "Aliens" m Our Midst Post-9/ll: Legislating Outsidemess Within die Borders, 38 U.C. DAVIS L REV. 1683,1701-02 (2005)
8. Kevin R.Johnson, It's the Economy, Stupid: The Hijackingofthe Debate Over Immigration Reform by Monsters, Ghost, and Goblins (Or the War on Drugs, War on Terror, Narcoterrorists, Etc.), 13 CHAP. L. REV. 583,610-11 (2010).
9. See also KEVIN R. JOHNSON, THE "HUDDLED MASSES" MYTH: IMMIGRATION AND CIVIL RIGHTS (2004)
10. United States v. Alvarado-Bermudez, 499 F. Supp. 1070 (E.D.N.Y. 1980)
11. United States v. Tarango-Hinojos, 791 F.2d 1174 (5th Cir. 1986)
12. United States v. Cuevas-Robledos, No. 05-CR-248-BR, 2006 WL 2902097 (D. Or. Oct. 5, 2006) (stating that an officer had probable cause to arrest a suspect who failed to produce documentation and was later convicted of illegal reentry).
13. But see Mountain High Knitting, Inc. v. Reno, 51 F3d 216 (9th Cir. 1995).
14. See Nicholas De Genova & Ana Y. Ramos-Zayas, Latino Rehearsals: Raciatization and the Politics of Citizenship Between Mexicans and Puerto Ricans m Chicago, J. LATIN AM. ANTHROPOLOGY, June 2003, at 18, 21.
15. cf. United States v. Zapata- Ibarra, 223 R3d 281,284 (5th Cir. 2000) (Wiener, J., dissenting) (discussing the extent to which roving practices at issue in the case mostly burden "law-abiding citizens" "entirely within their constitutional rights" simply because they appear to be of Mexican ancestry), cert, denied, 531 U.S. 972 (2000).
16. Importantly, this racial presumption is part of a broader mechanism of racialization and is connected to but distinct from the way in which Asians and people perceived to be Arab or Muslim are racialized. Asians also are presumptively not "Americans," not because of "illegality" per se, but rather because they are perceived as permanently foreign and unassimilable. See Neal Gotanda, Comparative RaciaUzatian: Racial Profiling and the Case of Wen Ho Lee, 47 UCLA L REV. 1689 (2000)
17. see also Leti Volpp, "Obnoxious to Their Very Nature": Asian Americans and Constitutional Citizenship, 8 ASIAN L.J. 71, 82 (2001). With respect to Arabs/Muslims, the presumption of foreignness also obtains, but vis-a-vis particular concerns about terrorism and national security.
18. See, e.g., Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002)
19. Bernard E. Harcourt, Muslim Profiles Post 9/11: Is Racial Profiling an Effective Counterterrorist Measure and Does It Violate the Right to Be Free From Discrimination? (Univ. of Chi. Law Sch. John M. Olin Law & Economics Working Paper No. 288, 2006), available at http://www.law.uchicago.edu/files/ files/286.pdf
20. see also Asli O. Bali, Changes in Immigration Law and Practice After September 11: A Practitioner's Perspective, 2 CARDOZO PUB. L POL'Y & ETHICS J. 161 (2003).
21. See HIROSHIMOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 173 (2006)
22. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 131-32 (2004)
23. Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National Imagination, 85 CALIF. L. REV. 1395 (1997)
24. Kevin R. Johnson, Fear of an "Alien Nation": Race, Immigration, and Immigrants, 7 STAN. L & POL'Y REV. III (1996)
25. Kevin R. Johnson, How Racial Profiling m America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 GEO. L.J. 1005, 1038 (2010) [hereinafter Johnson, Racial Profiling].
26. Sarah Paoletti, Making Visible the Invisible: Strategies for Responding to Globalization's Impact on Immigrant Workers in the United States, 13 IND. J. GLOBAL LEGAL STUD. 105, 131-32 (2006)
27. Gloria Sandrino-Glasser, Los Confudidos: De-Conflating Latinos/as' Race and Ethnicity, 19 CHICANO-LATINO L REV. 69,150 (1998).
28. See also Settlement Agreement at 8, Arnold v. Ariz. Dep't of Pub. Safety, No. CV-01-1463-PHX-LOA
29. see R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L REV. 1075 (2001).
30. See, e.g., DAVID COLE,NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (1999)
31. DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK (2002) (including a chapter on racial profiling of otiier minority communities)
32. RANDALL KENNEDY, Race, Law and Suspicion: Using Race as a Proxy for Dangerousness, m RACE, CRIME AND THE LAW 136-67 (1997)
33. Bernard Harcourt, United States v. Brignoni-Ponce and United States v. Martinez-Fuerte: The Road to Racial Profiling, m CRIMINAL PROCEDURE STORIES 315 (Carol Steiker ed., 2006)
34. David A. Harris, Using Race or Ethnicity as a Factor in Assessing the Reasonableness of Fourth Amendment Activity; Description, Yes; Prediction, No, 73 MISS. LJ. 423,438-32 (2003).
35. See, e.g., David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L REV. 265 (1999)
36. see also Devon W. Carbado, (E)racmg the Fourth Amendment, 100 MICH. L REV. 946, 1030-31 (2002)
37. Katheryn K. Russell, "Driving While Black": Corollary Phenomena and Collateral Consequences, 40 B.C. L REV. 717 (1999)
38. David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271
39. Donald Tomaskovic-Devey, Marcinda Mason & Matthew Zingraff, Looking for the Driving While Black Phenomena: Conceptualizing Racial Bias Processes and Their Associated Distributions, 7 POLICE Q. 3 (2004)
40. David A. Harris, Driving While Block: Racial Profiling on Our Nation's Highways, ACLU MAG. (1999) [hereinafter Harris, Driving While Black]
41. see also JODY DAVID ARMOUR, NEGROPHOBIA AND REASONABLE RACISM: THE HIDDEN COSTS OF BEING BLACK IN AMERICA 13-14 (1997) (suggesting that stereotyping imposes a "Black Tax" on African Americans).
42. United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (involving strip and other invasive searches at the border)
43. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (holding that the exclusionary rule does not apply to deportation proceedings). We focus on Delgado, Brignoni-Ponce, and Martinez-Fuerte because they most directly present the racial profiling problems we seek to engage.
44. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
45. Hiroshi Motomura, Immigration After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE LJ. 545, 550-59 (1990)
46. see also Anil Kalhan, The Fourth Amendment and Privacy Implications of Interior Immigration Enforcement, 41 U.C. DAVIS L REV. 1137, 1166-68 (2008) (discussing the ways in which interior immigration enforcement undermines Fourth Amendment privacy values).
47. Brigrtoru-Ponce helps to illustrate why the Terry regime is practically imperfect. But see Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 ST. JOHN'S L REV. 911 (1998).
48. See, e.g., I. Bennett Capers, On Justitia, Race, Gender, & Blindness, 12 MICH. J. RACE & L 203, 218 (2006)
49. I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 HARV. C.R.-C.L L REV. 1,12-19 (2011)
50. Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L REV. 333, 339 (1998)
51. William R. O'Shields, The Exodus of Minorities' Fourth Amendment Rights into Oblivion: Florida v. Bostick and the Merits of Adopting a Per Se Rule Against Random Suspicionless Bus Searches in the Minority Community, 77 IOWA L. REV. 1875, 1889 (1992)
52. Brendan J. Lyons, Harsh, Unwarranted Tactics! Outcry Over Sheriffs Department Search Methods, TIMES UNION (Albany, N.Y.), Mar. 2, 2008, at Dl.
53. Albert W. Alschuler, Racial Profdingand the Constitution, 2002 U. CHI. LEGAL F. 163,194.
54. Andiony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L REV. 956,962 (1999).
55. See Devon W. Carbado, Race to the Bottom, 49 UCLA L. REV. 1283, 1307 (2002) (critiquing the problematic ways in which the Black/white paradigm discourse has been framed).
56. See Hiroshi Motomura, The Rights of Others: Legal Claims and Immigration Outside of Law, 59 DUKE L J. 1723,1747-49(2011) (discussing how workplace raids affect employee rights).
57. See Ruben J. Garcia, Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law, 17 OUCANO-LATINO L REV. 118, 119 (1995) ("By 1946 [after the large influx of Mexican workers that came to the U.S. in the Bracero contract-labor program]
58. Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L REV. 1258,1305 (1990).
59. Editorial, Slavery's Long Gone? Don't Bet on It, LA. TIMES, Aug. 4,1995, at B8.
60. Florida v. Bostick, 501 U.S. 429,436 (1991).
61. See also Michigan v. Chestemut, 486 U.S. 567,573 (1988).
62. United States v. Mendenhall, 446 U.S. 544 (1980). While only two members of die Court adopted this test in Mendenhall, a four-justice plurality adopted the Mendenhall formulation in Florida v. Royer, as did Justice Blackmun in dissent. Further, other members of the Court did not challenge the standard.
63. See MICHAEL OMI & HOWARD WlNANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990S 1 (2d ed. 1994).
64. See Korematsu v. United States, 323 U.S. 214, 219 (1944).
65. Tracey Maclin, Terry v. Ohio's Fourth Amendment Legacy: Blade Men and Police Discretion, 72 ST. JOHN'S L. REV. 1271, 1280 (1998). The President's Commission on Law Enforcement and Administration of Justice also found: In many communities, field interrogations [pursuant to stops and frisks] are a major source of friction between the police and minority groups. Many minority group leaders strongly contend that field interrogations are predominantly conducted in slum communities, that they are used indiscriminately, and that they are conducted in an abusive and unfriendly manner. Terry, 392 US. at 14 n.ll.
66. John Q. Barrett, Terry v. Ohio: The Fourth Amendment Reasonableness of Police Stops and Frisks Based on less Than Probable Cause, m CRIMINAL PROCEDURE STORIES 295,300 (Carol S. Steiker ed., 2006).
67. Paul Butler, "A Long Step Down the Totalitarian Path": Justice Douglas's Great Dissent in Terry v. Ohio, 79 MISS. L.J. 9, 22 (2009).
68. United States v. Brignoni-Ponce, 422 U.S. 873,874 (1975).
69. Teny v. Ohio, 392 U.S. 1,39 (1968) (Douglas, J., dissenting). For a thoughtful discussion of Justice Douglas's dissent
70. As stated previously, Adams v. Williams can be interpreted as a case in which die officer had a concern about his safety. In Florida v. Royer, Justice White, writing for the Court, also comments on how Brignoni-Ponce expands die Terry doctrine: "Aldiough not expressly authorized in Terry
71. United States v. Brignoni-Ponce was unequivocal in saying that reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop."
72. Florida v. Royer, 460 US. 491,498 (1983).
73. SEE CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 263 (2008).
74. see also Phillip Atiba Goff & Jennifer Eberhardt, Race and the Ape Image, LA. TIMES, Feb. 28, 2009, http://www.ktimes.conVnews/opinion/commentaiy/ ke-gofT28-009feb28, 0,1418895.story (describing social psychology research conducted by the authors that demonstrated a continued connection between Black racial identity and apes in uSe subconscious minds of test subjects).
75. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489,1506-14 (2005) (discussing the concept of implicit bias)
76. see also Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317 (1987) (employing "unconscious bias" to discuss racial action that is not intentionally motivated)
77. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrmvnation and Equal Employment Opportunity, 47 STAN. L REV. 1161 (1995) (same).
78. Officer McFadden actually said that he "didn't like diem." Oral Argument at 7:18, Terry, 392 U.S. 1 (No. 67), available at http://www.oyez.org/ cases/1960-1969/1967/1967-67.
79. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). The Court was clear to point out, however, that race could not be the only factor. In the context of concluding as much, the Court articulated a number of factors upon which border patrol agents can rely to form reasonable suspicion
80. See Frank Rudy Cooper, Terry's "Seesaw Effect," 56 OKLA. L. REV. 833,856 (2003).
81. Akhil Reed Amar, The Future of Constitutional Criminal Procedure, 33 AM. CriM. L. REV. 1123,1134(1996).
82. See Victor C. Romero, Essay, Racial Profiling: 'Driving While Mexican' and Affirmative Action, 6 MlCH. J. RACE&L 195 (2000).
83. See United States v. Place, 462 U.S. 696, 713 (1983)
84. United States v. Villamonte-Marquez, 462 U.S. 579, 586-88 (1983)
85. Honda v. Royer, 460 U.S. 491 (1983)
86. Michigan v. Summers, 452 U.S. 692 (1981)
87. United States v. Mendenhall, 446 U.S. 544 (1980)
88. Delaware v. Prouse, 440 U.S. 648 (1979).
89. Kevin R. Johnson, The Song Remains the Same: The Story of Whren v. United States, m RACE LAW STORIES (Rachel F. Moran & Devon W. Carbado eds., 2008).
90. See Kimberle' Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L REV. 1331 (1988)
91. Barbara J. Flagg, "Was Blind, but Now I See": White Race Consciousness and die Requirement of Discriminatory Intent, 91 MICH. L REV. 953 (1993)
92. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709 (1993)
93. Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L REV. 425 (1997)
94. Mark M. Dobson, Criminal Law Symposium: The Police, Pretextual Investigatory Activity, and the Fourth Amendment: What Hath Whren Wrought?, 9 ST. THOMAS L REV. 707 (1997)
95. Brian T. Fitzpatrick, "Suitable Targets?" Parallels and Connections Between "Hate" Crimes and "Driving While Black," 6 MICH. J. RACE & L 209 (2001)
96. Craig M. Glantz, Supreme Court Review: Could This Be the End of Fourth Amendment Protections for Motorists'!, 87 J. CriM. L & CRIMINOLOGY 864 (1997)
97. Sherri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REV. 1016 (1988)
98. Kirk Miller, Race, Driving, and Police Cnganiipnon: Modeling Moving and Noranowng Traffic Stops With Citizen Self-Reports of Driving Practices, 37 J. CRIM. JUST. 564-75 (2009)
99. Wesley MacNeil Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Prof Bng, 74 TUL L REV. 1409 (2000).
100. United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
101. William McDonald, Crime and Illegal Immigration: Emerging Local, State, and Federal Partnerships, NATl INST. JUST. J. 2-10 (1997)
102. Peter Spiro, Learning to Live With Immigration Federalism, 29 CONN. L REV. 1627 (1997)
103. Jill Keblawi, Comment, Immigration Arrests by Local Police: Inherent Authority or InJierentfy Preempted1?, 53 CATH. U. L REV. 817 (2004).
104. ACLU of Nevada's Fight Against Local Police Enforcing Federal Immigration Laws, ACLU, http://www.aclunv.org/category/issue/immigration/287g (last visited July 10, 2011).
105. Immigration & Nationality Act, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, http://www.ice.gov/ news/library/factsheets/287g.htm (last visited July 10, 2011).
106. See South Dakota v. Opperman, 428 U.S. 364 (1976) (finding no suggestion that inventory searches were pretextual).
107. United States v. Oscar-Torres, 507 FJd 224 (4th Cir. 2007), is somewhat on point. There, police officers posed as immigration officials and illegally arrested Torres. They fingerprinted him at the station house and discovered his prior immigration record. There was no question that the arrest was illegal. The issue was the admissibility of the record. The Court of Appeal concluded that the evidence was admissible if it was acquired pursuant to an interest in pursuing civil deportation or incidental to procedures for processing suspected undocumented people. For a thoughtful discussion of this case
108. See United States v. Brignoni-Ponce, 422 U.S. 873, 887 (1975).
109. See United States v. Casimiro-Benitez, 533 F.2d 1121, 1123 (9th Or. 1976)
110. United States v. Rebon-Delgado, 467 F.2d 11 (9th Cir. 1972) (noting that the defendant "was dark complected [sic]" in deciding a probable cause challenge).
111. See, e.g., United States v. Tinoco-Fajardo, 131 F. App'x 231, 233 (11th Cir. 2005) (suspect's admission to "being in the United States illegally" gave officers probable cause to arrest him)
112. United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (suspects answered "no" when asked if they were "legal" and permitted officers to search their car)
113. United States v. Moya-Matute, 735 F. Supp. 2d 1306, 1338 (D.N.M. 2008) (suspect's admission that he was a native of Honduras and did not have immigration papers gave officers probable cause to arrest him)
114. see also Juan Rocha, Immigration Law: Found in the USA, 57 FED. LAW. 30 (2010) ("Many of the incident reports filed by the police that I reviewed [while representing persons charged with illegal reentry] revealed that agents were able to establish probable cause based on answers given during a consensual encounter."). 224- One exception that comes readily to mind is a case in which the officer suspicion is based in part on a suspect description that includes race. Suspect descriptions can be a basis upon which the government establishes probable cause
115. As Justice Brennan explains in his dissent: Every American citizen of Mexican ancestry, and every Mexican alien lawfully in this country, must know after today's decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. United States v. Martinez-Fuerte, 428 U.S. 543,572 (1976) (Brennan, J., dissenting).
116. See Charles Becton, The Drag Courier Profile: 'All Seems Infected That Th' Infected Spy, as AH Looks Yellow to thejaundic'd Eye,' 65 KG L REV. 417, 426, 433-34 (1987). Not infrequently, Latino racial identity or national origin associated with certain Latin American countries has been invoked as a factor to be considered.
117. Greg Williams, Selective Targeting m Law Enforcement, NAT'L B. ASS'N MAG., Mar./Apr. 1996, at 18.
118. Rebecca Porter, Skin Deep: Minorities Seek Relief From Racial Profiling, 35 TRIAL 13 (1999).
119. United States v. New Jersey, No. 99-5970 (D.N.J. Dec. 30,1999) (consent decree banning racial profiling by New Jersey State Police in case brought by the U.S. Department of Justice)
120. Wilkins v. Md. State Police, No. CCB-93-468 (D. Md. 1993) (consent decree prohibiting racial profiling in case brought by the NAACP and the ACLU against the Maryland State Police)
121. see also Michael Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, WASH. POST, Mar. 29, 1996, at Al (delineating racial profiling as the experience of Black men)
122. Frank Newport, Racial Profiling Is Seen as Widespread, Particularly Among Young Black Men, Gallup Poll Service, Dec. 9, 1999 (reporting that 77 percent of Blacks and 56 percent of whites believed racial profiling of Black men to be widespread).
123. See Muneer I. Ahmad, A Rage Shared by AH: Post-September 1I Racial Violence as Crimes of Passion, 92 CALIF. L. REV. 1259 (2004)
124. Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After eptember 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURV. AM. L 295 (2002)
125. SEE GEORGE J. SANCHEZ, BECOMING MEXICAN AMERICAN: ETHNICITY, CULTURE, AND IDENTITY IN CHICANO LOS ANGELES, 1900-1945, at 38-62 (1995).
126. see also IAN HANEY LOPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE (2003) (discussing patterns of social and legal discrimination against Latinos).
127. See Neil Foley, Over the Rainbow: Hernandez v. Texas, Brown v. Board of Education, and Black v. Brown, 25 CHICANO-LATTNO L REV. 139, 140-41 (2005)
128. Hernandez v. State, 251 S.W.2d 531,536 (Tex. Crim. App. 1952), rev'd, Hernandez, 347 U.S. 475.
129. United Sates v. Brignoni-Ponce, 422 U.S. 873,887 (1975).
130. See Randall Kennedy, Suspect Policy, NEW REPUBLIC, Sept. 13,1999, at 30 (reporting that President Clinton declared racial profiling to be "morally indefensible").
131. see Kadieryn K. Russell, Racial Proving: A Status Report of the Legal, Legislative, and Empirical Literature, 3 RUTGERS RACE & L REV. 61,65-68 (2001).
132. See Chet K.W. Pager, Lies, Damned Lies, Statistics and Racial Proving, 13 KAN. J.L & PUB. POL'Y 515, 519-21 (2003) (aiguing that the disparity studies supporting racial profiling claims have railed to tend to die issue of baselines and whether there are racial differences in the underlying rate of offending).
133. United States v. Weaver, 966 F.2d 391,394 n.2 (8th Cir. 1992).
134. David Harris, When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies, 6 MICH. J. RACE & L. 237 (2001)
135. See The American Community-Hispanic: 2004, U.S. CENSUS BUREAU, at 11 (2007), avaHabk at http://www.census.gov/prod/2007pubs/ acs-03.pdf ("Nearly three-quarters of Hispanics were U.S. citizens, either through birth (about 61 percent) or naturalization (about 11 percent).").
136. Kristin Connor, Updating Brignoni-Ponce: A Critical Analysis of Race-Based Immigration Enforcement, 11 N.Y.U. J. LEGLS. & PUB. POL'Y 567,586 (2008).
137. See Kerry Abrams, Polygeny, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641 (2004)
138. John Hayakawa Torok, Reconstruction and Racial Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and Fifteenth Amendments and Civil Rights Laws, 3 ASIAN LJ. 55,96-97 (1996).
139. See Gabriel Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L REV. 273, 279 (1996). For a more detailed description of the national origins system
140. See Zadvydas v. Davis, 533 U.S. 678, 678, 695 (2001) (holding that the government could not indefinitely detain deportable noncitizens who were formerly permanent residents and that the plenary power doctrine is "subject to important constitutional limitations")
141. Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 CALIF. L REV. 553, 558, 575-78 (2008) (describing how constitutional standards, such as strict scrutiny in die context of due process and equal protection claims, are inconsistently applied to immigration).
142. United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
143. See, e.g., United States v. Chavez-Villareal, 3 F.3d 124,127 (5th Or. 1993)
144. United States v. Orona-Sanchez, 648 F.2d 1039,1042 (5th Cir. 1981)
145. United States v. Rubio-Hernandez, 39 F. Supp. 2d 808, 836 (W.D. Tex. 1998)
146. United States v. Zertuche-Tobias, 953 F. Supp. 803, 821 (S.D. Tex. 19%). These cases have tended to accord little probative value to Latino racial identity where a substantial proportion of the population is Latino.
147. See, e.g., United States v. Abdon-Limas, 780 F. Supp. 773 (D.N.M. 1991)
148. United States v. Ramon, 86 F. Supp. 2d 665 (W.D. Tex. 2000). Others have cited Brignoni-Pcmce for a list of relevant factors and have omitted race or appearance.
149. United States v. Hernandez-Lopez, 761 F. Supp. 2d 1172 (D.N.M. 2010).
150. See Farag v. United States, 587 F. Supp. 2d 436, 463-64 (E.D.N.Y. 2008) (citing Montero- Camargo widi approval, and noting that it would be particularly inappropriate to extend its statistical rationale to circumstances involving the seizure of persons of Arab ancestry at an airport where "the likelihood diat any given airline passenger of Arab ethnicity is a terrorist is so negligible that Arab ethnicity has no probative value").
151. See United States v. Manzo-Jurado, 457 F.3d 928 (9th Cir. 2006).
152. United States v. Medina, 295 F. App'x 702 (5th Cir. 2008).
153. accord United States v. Hernandez-Moya, 353 F. App'x 930 (5th Cir. 2009) (per curiam)
154. United States v. Bautista-Silva, 567 F3d 1266 (11th Cir. 2009)
155. United StateS V. Monies, No. 96-50041,1996 Wl 713037 (9Th Cir. Nov. 5,1996) (Upholding Reliance On Mexican Appearance As One Factor To Establish Probable Cause For Warrantless Arrest)
156. United States V. Telles- Montenegro, No. 8:09-Cr-502-T-17Tgw, 2010 Wl 737640 (M.D. Fla. Feb. 4, 2010)
157. U.S. Dep"T Of Justice, Guidance Regarding The Use Of Race By Federal Law Enforcement Agencies 9 (2003), Available At Http://Www.Justice.Gov/Crt/ About/Spl/Documents/Guidance-On-Race.Pdf.
158. See generally Fabio Arcila, Jr., Special Needs and Special Deference: Suspidonless Civil Searches in the Modem Regulatory State, 56 ADMIN. L REV. 1223 (2004)
159. see also Seth M. Haines, Rounding Up the Usual Suspects: The Rights of Arab Detainees in a Post-September 11 World, 57 ARK. L REV. 105, 121 (2004). In some ways, the notion that cases that deal with immigration enforcement in the interior of the country are regulatory or administrative but not investigatory is insufficiently nuanced. It might be more accurate to say that these cases occupy a space between regulatory searches and seizures on the one hand, and investigatory searches and seizures on the other.
160. See WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY KING, CRIMINAL PROCEDURE 237- 38 (4th ed. 2004) (discussing Brignoni-Ponce and Martinez-Fuerte under the rubric of "inspections and regulatory searches")
161. But see Jennifer M. Chacon, Unsecured Borders: Immigration Restrictions, Crime Control, and National Security, 39 CONN. L REV. 1827 (2007)
162. Juliet Stumpf, The Crmvnigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L REV. 367 (2006).
163. See Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (permitting random dnig testing of students who participate in extracurricular activities)
164. Mich. Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (permitting warrantless and suspicionless drunk-driving checkpoint)
165. Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602 (1989).
166. Griffin v. Wisconsin, 483 U.S. 868 (1987).
167. South Dakota v. Opperman, 428 U.S. 364 (1976) (permitting warrantless and suspicionless inventory searches of automobiles)
168. Wyman v. James, 400 U.S. 304 (1971) (permitting warrantless visits to the homes of welfare recipients)
169. City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding that suspicionless seizures at a highway checkpoint whose primary purpose was drug interdiction violate the Fourth Amendment).
170. JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE: INVESTIGATIONS 311 (4th ed. 2006).