Dean Johnson weighs in on racial profiling standards in immigration courts, for ProPublica

ProPublica interviewed Dean Kevin R. Johnson for its June 8 story “How Racial Profiling Goes Unchecked in Immigration Enforcement,” which explores immigration courts’ high threshold for dismissing cases even when constitutional violations are clear.

The story begins with a Pennsylvania case in which ICE officers ignored “no trespassing” signs outside a poultry transport facility, entered the facility, and according to witnesses, targeted Latino workers for questioning solely based on their ethnicity. Though an immigration judge found there was a strong argument for ICE officers having egregiously violated” the Constitution during the raid, he did not throw out the four deportation cases that resulted.

What might be grounds for a case being tossed from criminal court are not necessarily considered such in immigration courts – a phenomenon dating back to a 1984 Supreme Court decision that concluded that allowing motions to suppress in deportation cases would force courts to release people who would “immediately resume their commission of a crime through their continuing, unlawful presence in the country.”

Another Supreme Court ruling, from 1975, allows immigration stops of people of “Mexican appearance” if a person’s appearance is “characteristic of persons who live in Mexico, relying on such factors as the mode of dress and haircut,” and other factors are present such as “erratic driving” or “facts in light of [the officer’s] experience in detecting illegal entry and smuggling.”

These allowances “give an awful lot of discretion to rely on race,” Johnson told ProPublica. “Even if they say, ‘Well, he’s wearing work clothes,’ or ‘He’s wearing clothes typical of an immigrant from Mexico,’ or something like that, there’s an awful lot of leeway there.”

Kevin R. Johnson is Dean, Mabie-Apallas Professor of Public Interest Law and Professor of Chicana/o Studies at UC Davis School of Law. He is an internationally recognized scholar in the fields of immigration law and policy, refugee law, and civil rights.