Monday’s ruling by the U.S. Supreme Court setting aside, at least temporarily, parallel rulings by U.S. District Judge U.S. District Judge Maame Ewusi-Mensah Frimpong and a three judge panel of the 9th Circuit Court of Appeal[s] hobbling the Trump Administration and the U.S. Department of Immigration and Customs Enforcement in their enforcement of immigration law in seven Southern California counties has not, as of press time today, had any discernible impact on the lull in the arrests of undocumented migrants regionally since July.
Judge Frimpong on July 12 ruled that Immigration and Customs Enforcement’s practice of engaging in “roving patrols” aimed at finding suspected illegal aliens and stopping individuals based on race, language, location and occupation violated the Fourth Amendment’s protections against unreasonable searches and seizures and the Fifth Amendment’s guarantee of due process. Judge Frimpong ordered the Trump administration to halt indiscriminate immigration stops and arrests in Los Angeles, Riverside, San Bernardino, Orange, Ventura, Santa Barbara and San Luis Obispo counties.
The Trump Administration, represented by the U.S. Attorney for the Central District of California, Bilal Essayli and Deputy Assistant Attorney General Yaakov Roth, along with Counsel to the Assistant Attorney General Sean Skedzielewski made an appeal of Judge Frimpong’s ruling to the United States Court of Appeals for the 9th Circuit. A panel of three judges with the 9th Circuit – Judges Marsha S. Berzon, Jennifer Sung and Ronald M. Gould – upheld Judge Frimpong. Thereupon the Trump Administration appealed to the Supreme Court, asking for an expedited ruling on the issue.
By a 6-to-3 margin, The Supreme Court found that Judge Frimpong’s conclusion that the agents were engaged in racial profiling in conducting the sweeps was in error and overturned her ruling and that of the 9th Circuit panel that the operations had to be discontinued if the race of, language spoken by, the location of and occupation engaged in by those targeted in the enforcement action formed the basis for stopping them and questioning them with regard to their immigration status.
The American Civil Liberty Union and Public Counsel represented plaintiffs Pedro Vasquez Perdomo, Carlos Alexander Osorto, Isaac Antonio Villegas Molina, Jason Brian Gavidia and Jorge Luis Hernandez Viramontes in the underlying case, ruled on by Judge Frimpong, which alleged their rights were being violated by conducting the roving patrols and then detaining those who appeared to fit the profile of an unregistered migrant. In seeking to convince the Supreme Court to uphold Judge Frimpong and the 9th Circuit panel, the ACLU argued that the Department of Immigration and customs Enforcement [ICE] was involved in a “racist deportation scheme,” which Judge Frimpong and Justices Berzon, Sung and Gould recognized. Public Counsel said striking down Judge Frimpong’s order would allow for the resumption of “discriminatory raids across Los Angeles.”
The Trump Administration countered that it was hardly discriminatory that federal agents working in Southern California, where 71 percent of the illegal immigrants originated in Latin America, consider the use of Spanish to be a criteria distinguishing undocumented aliens from the native population or that agents concentrate their patrols in or around businesses which have a demonstrated prior history of employing or attracting individuals in the country illegally.
With Justices Sonia Sotomayor, Elena Kagan and Kentanji Brown Jackson dissenting, the balance of the Supreme Court rejected Judge Frimpong’s conclusion that any consideration of race or ethnicity in the evaluation of what constituted reasonable suspicion with regard to the commission of a crime, in this case a violation of U.S. Immigration Law, and that a suspect’s race or ethnicity could be a factor when considering it within the context of other factors.
In his opinion concurring with the majority, Justice Brett Kavanaugh authored a defense of why the manner in which the roving patrols are conducted are neither a violation of the Constitution nor racist and that they should be allowed to resume.
“To stop an individual for brief questioning about immigration status, the government must have reasonable suspicion that the individual is illegally present in the United States,” Kavanaugh wrote. “Whether an officer has reasonable suspicion depends on the totality of the circumstances. Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.”
Kavanaugh continued, “Under this court’s precedents, not to mention commonsense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”