Border Patrol car

The Biden Administration Must Ban Racial Profiling

The public opposes immigration authorities' use of race in border apprehensions, but it continues to be legal in some circumstances.

by

Reece Jones

On July 28, the ACLU of Texas filed a complaint with the Department of Justice alleging that the Texas Department of Public Safety was “engaged in racial profiling” and “discriminating against Latinx drivers and passengers” in traffic stops as part of Governor Greg Abbott’s Operation Lone Star. A 2022 study found that DPS searched Latinx drivers more frequently than white drivers, suggesting that there is “a reasonable probability that racial profiling is a significant contributor to” these differences. The Department of Justice is investigating whether Operation Lone Star violates Title VI of the Civil Rights Act of 1964, which prohibits “discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds.”

This is only the latest example of state and federal officials using racial profiling to conduct immigration policing. Despite a broad public consensus that law enforcement officers should not use racial profiling, efforts in Congress to ban the practice have failed for decades. The situation is even worse in the border zone, where racial profiling is explicitly allowed for the Border Patrol and other federal immigration police based on Supreme Court decisions and the Obama administration’s 2014 guidelines on race and policing, which are still in effect. The Biden administration should revise those guidelines to ban racial profiling for all federal police, including the Border Patrol, and should state explicitly that racial profiling is a violation of the Civil Rights Act. 

In the 1970s, the Supreme Court heard two cases about whether the Border Patrol could use racial profiling. In United States v. Brignoni-Ponce in 1975, the court listed a series of factors agents could consider when making a roving patrol stop, including “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.” In United States v. Martinez-Fuerte in 1976, the court said agents working at interior checkpoints could use the race of the driver as the only factor to refer a vehicle to a more thorough secondary inspection. “Even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation,” the justices wrote. 

The racial implications of the Supreme Court’s decisions in Brignoni-Ponce and Martinez-Fuerte were already evident to Thurgood Marshall and William Brennan, who dissented from the 1976 ruling, calling it an “evisceration” of the Fourth Amendment’s protections against unreasonable searches and seizures. Brennan’s dissent pointed out that the court’s ruling allowed agents “to stop any or all motorists without explanation or excuse” and “target motorists of Mexican appearance.” The dissent concluded, “Today’s decision would clearly permit detentions to be based solely on Mexican ancestry.” 

The Border Patrol’s practices have borne out Brennan and Marshall’s dire predictions. In Ohio, where only 3 percent of the population is Hispanic, a 2015 analysis found Latinx people made up 85 percent Border Patrol arrests. A 2014 study at an interior Border Patrol checkpoint in Arizona found that cars with only Latinx occupants were 26 times more likely to be asked to show identification and 20 times more likely to be referred to secondary inspection compared with vehicles containing white occupants. Moreover, when agents use racial profiling in the border zone, they are impacting citizens and immigrants alike because the official border zone is defined as within 100 miles of borders and coastlines—a vast area that includes the homes of almost two-thirds of the United States population and many of the largest cities, including Chicago, Los Angeles, New York, and Washington, D.C.

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In 2014, former Attorney General Eric Holder directed the Department of Justice to review federal guidelines for the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity in policing. The review resulted in new guidance that banned racial profiling for most federal officers, but it does not apply to the Border Patrol. Buried in a footnote, it said “this guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities.” At the time, a DHS official told the New York Times, “We can’t do our job without taking ethnicity into account. We are very dependent on that.”

The Trump and Biden administrations kept these guidelines on racial profiling in place.

All three branches of government could act to end racial profiling in the United States. Congress should finally pass long-stalled bills to ban racial profiling. The Department of Justice should revise its guidance and remove the exception to the ban on racial profiling for the Border Patrol and immigration officers and should make clear that racial profiling violates Title VI of the Civil Rights Act. Finally, the Supreme Court should revisit the racial aspects of the Brignoni-Ponce and Martinez-Fuerte decisions. 

In the past, the court has corrected erroneous rulings, often in cases about race. Brown v. Board of Education (1954) reversed Plessy v. Ferguson (1896), which had approved “separate but equal” public facilities for different races. Despite its current conservative composition, in Trump v. Hawaii (2018), the court condemned its previous decision in Korematsu v. United States (1944), which had allowed the internment of Japanese Americans during World War II. Chief Justice John Roberts wrote, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and to be clear ‘has no place in law under the Constitution.’” Among those symbols of America’s racist past, Brignoni-Ponce and Martinez-Fuerte stand alone because they are still put into practice by the Border Patrol every day. It is time to correct those gravely wrong decisions and end racial profiling for the Texas DPS, the Border Patrol, and all police in the United States.