Racial profiling may be out of favor within many circles, but it remains alive and well when it comes to immigration policing along the border. Yesterday Attorney General Eric Holder released the Justice Department’s latest guidance on the use of race, ethnicity, and other protected categories (gender, national origin, religion, sexual orientation, and gender identity) by federal law enforcement officials. U.S. Department of Justice, Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (Dec. 2014).
Though there is much to laud in this announcement, the new guidance, as has been widely reported, leaves a gaping hole in the Justice Department’s attempts to remove race from federal officers’ criminal investigation calculus because it explicitly exempts immigration policing activity along the border. Footnote 2 provides: “this Guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.” It does apply to immigration policing in the nation’s interior. As if to buttress this point, the document provides numerous examples of how it would apply to hypothetical immigration investigations away from the border.
Racial profiling is nothing new in the borderlands. In fact, I spent an entire session discussing the Fourth Amendment’s border search doctrine with my Criminal Procedure students this semester. I also devote several pages to discussing race’s persistent presence in immigration policing along the border in my forthcoming book Crimmigration Law (expected to be published during the summer of 2015). Here’s a relevant excerpt from the book:
Race has a sordid presence in the history of policing in the United States. For much of that time, the courts were willing enablers of official racism that not infrequently manifested itself in the most vicious exercises of brutality imaginable. This volume, of course, is not the place in which to recount that history. It is enough to note an important lesson resulting from that history: race is an unwanted and illegal factor of most policing decisions. As the Tenth Circuit explained, “Racially selective law enforcement violates this nation’s constitutional values at the most fundamental level.” Except when it comes to border policing.
Like with its suspicionless search cases at international borders and their functional equivalents, the Supreme Court’s cases about stops at some distance from the international boundary make it clear that, in the justices’ view, the border region is exceptional. Law enforcement officials, therefore, need extraordinary flexibility if they are to successfully fight crime. Unauthorized migrants, the Court explained in United States v. Brignoni-Ponce, move through the border region in such high numbers and with such stealth that immigration law enforcement authorities are simply outpowered. “[E]ven a vastly reinforced Border Patrol,” the Court claimed, “would find it impossible to prevent illegal border crossings,” nonetheless identifying and apprehending migrants who enter with the federal government’s permission only to violate some provision of civil immigration law later. The “public interest demands effective measures to prevent the illegal entry of aliens at the Mexican border,” the Court went on, and it is nothing more than a “minimal intrusion” to allow immigration officials to stop a vehicle if they have reasonable suspicion that unauthorized migrants are inside. “The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause,” the Court held. In assessing reasonable suspicion, officers can consider a wide range of factors. Proximity to the border, characteristics of the area, whether the road on which the vehicle is encountered is often used to transport unauthorized migrants, the driver’s behavior, number of passengers, even the size and style of the vehicle are permissible considerations.
Had the Court’s analysis ended there it could be characterized as an ordinary Fourth Amendment case. The Court’s additional reasoning, however, moves it beyond the bounds of typical Fourth Amendment doctrine and into the realm of exceptional border search and seizure cases. The unique circumstances present near the border, the Court suggested, demand unique calculations of reasonable suspicion. “The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut,” the Court announced. Standing alone, Mexican appearance is not sufficient to establish reasonable suspicion, because, the Court acknowledged, many people who appear to be Mexican are United States citizens or authorized migrants. Nonetheless, “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”
A year later, the Court returned to its race-based border policing doctrine in United States v. Martinez-Fuerte. Unlike Brignoni-Ponce, which involved a roving stop by Border Patrol officers, Martinez-Fuerte involved a number of cases in which people were stopped at fixed Border Patrol checkpoints while traveling on public highways well away from the border. One checkpoint was approximately sixty-six miles from the border and another roughly ninety miles away. In a common practice familiar to border travelers even today, every vehicle approaching the checkpoint was required to stop while passengers were asked about their immigration status. As with stops at ports-of-entry, no suspicion of wrongdoing is necessary. After this initial seizure and inquiry most vehicles are allowed to proceed without additional delay, but a small number are ordered to a secondary inspection area where they are subjected to more in-depth questioning. Here again the Court concluded that no suspicion of wrongdoing is required. But as with Brignoni-Ponce, the Court went one step further. Because no individualized suspicion of wrongdoing is required, the Court explained that it could “perceive no constitutional violation” “even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry.” Racial profiling, these cases evidence, is a constitutionally permissible law enforcement practice.
Despite openly accepting race-based policing, Brignoni-Ponce and Martinez-Fuerte have yet to be overturned. Both cases are frequently cited for support. Defendants in immigration crime prosecutions regularly rely on Brignoni-Ponce, claiming that immigration officials relied solely on race to stop a moving vehicle, clearly violating the Court’s admonishment that Mexican appearance alone is insufficient to establish reasonable suspicion, they argue. For their part, however, government attorneys often try to steer clear of this factor and courts frequently make no mention of race when assessing whether an officer had reasonable suspicion to pull over a vehicle.
Perhaps because they raise such fraught topics, the lower courts have struggled to apply the holdings of Brignoni-Ponce and Martinez-Fuerte in the four decades since the opinions were issued. The Sixth Circuit, for example, limited Martinez-Fuerte’s reach to locations near the Mexican border in a case involving a stop in Ohio not far from the Canadian border. The Fifth Circuit, meanwhile, cautioned that the border search doctrine does not empower law enforcement officials to engage in an otherwise impermissible seizure. Border Patrol agents, for example, cannot use the leeway that Brignoni-Ponce and Martinez-Fuerte grant them in their efforts to curtail unauthorized migration to look for illegal drugs. In contrast, the Tenth Circuit relied on Martinez-Fuerte to conclude that Border Patrol officers could engage in a “cursory visual inspection of the vehicle” and ask “a few brief questions concerning such things as vehicle ownership, cargo, destination, and travel plans…if reasonably related to the agent’s duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband.”
Courts are similarly unsure how far into the nation’s interior to extend the border search doctrine. There is no geographic bright line—a border, so to speak—that confines the border search doctrine. Aside from airports serving international flights, it is unclear to what extent immigration officials can rely on border search cases when engaging in law enforcement operations at a great distance from the border. A DHS regulation claims this power extends 100 miles from the nearest external boundary. Courts tend to grant immigration officials this much leeway, but have shown some skepticism about the border search doctrine’s applicability at much greater distances from the border. Still, courts have upheld use of the border search doctrine to stops as far as 200 or 300 miles from the nearest border with a foreign country. For decades this was largely an irrelevant concern since immigration stops far removed from the border were rare; immigration officials instead focused almost all their efforts on the border region. Recently, however, the border search exception’s applicability in the country’s interior has become an increasingly relevant question since ICE has expanded the practices long used in border communities to communities far from any international boundary.
The Ninth Circuit has taken the harshest approach toward the use of race in immigration policing along the border. In United States v. Montero-Camargo, the appellate court departed from Brignoni-Ponce’s logic on the basis that the Supreme Court “relied heavily on now-outdated demographic information.” In particular, the Ninth Circuit explained that the statistical data about the Mexican population along the Southwest upon which the Supreme Court placed a great deal of emphasis is vastly different from the comparable data in 2000, the year in which the Ninth Circuit’s decision was issued. Moreover, the Ninth Circuit noted that race and ethnicity are increasingly disfavored means of government decision making, citing recent Supreme Court decisions limited affirmative action policies. For those reasons, the Montero-Camargo court concluded, “Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required”— that is, in the context of an investigatory Terry stop. Even then, however, the Ninth Circuit undercut Montero-Camargo in a later case, United States v. Manzo-Jurado, where it announced that “’[a]n individual’s inability to speak English may support an officer’s reasonable suspicion that the individual is in this country illegally.”
The Justice Department guidance claims to “set out requirements beyond the Constitutional minimum.” When it comes to the border, however, that is simply not the case. Once more, the borderlands are the exception.
 See Whren v. United States, 517 U.S. 806, 813 (1996).
 Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003).
 422 U.S. 873, 879-80 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 879 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 878, 881 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975).
 United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).
 428 U.S. 543 (1976).
 United States v. Martinez-Fuerte, 428 U.S. 543, 546 (1976).
 United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976).
 United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976).
 United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).
 Farm Labor Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 541 n.7 (6th Cir. 2002).
 United States v. Portillo-Aguirre, 311 F.3d 647, 655-56 (5th Cir. 2002); United States v. Machuca-Barrera, 261 F.3d 425, 431 (5th Cir. 2001).
 United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993).
 See United States v. Rico-Soto, 690 F.3d 376, 378 n.1 (5th Cir. 2012).
 8 C.F.R. § 287.1(a)(2).
 See, e.g., United States v. Hernandez-Mandujano, 721 F.3d 345, 349 (5th Cir. 2013) (450 miles from the nearest border crossing).
 See, e.g., United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999); United States v. Lamas, 608 F.2d 547, 548 (5th Cir. 1979).
 208 F.3d 1122, 1132 (9th Cir. 2000).
 Id. at 1134-35.
 Id. at 1135.
 457 F.3d 928, 936-37 (9th Cir. 2006).
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