A Little Bit of Law in a Law-Free Zone

By Phil Mayor

Rio Grande City, South Texas.  Four Hispanic men get into a car in a Wal-mart parking lot.  A border patrol agent sees them, and he follows the truck.  When he pulls up alongside the truck the driver looks at him but the passengers do not.  The passengers are not talking to each other and are wearing their seatbelts.  Allegedly, they are also “sweating pretty bad.”  Apparently under the impression that looking Latino, sweating, wearing a seatbelt and not looking at passing border patrol agents constitutes grounds for stopping an automobile, Agent Victor Soliz pulls the car over and when it turns out that he is “right” and that some of the passengers are undocumented, the driver is charged with “unlawfully transporting undocumented aliens.”

The Fifth Circuit recently held that Agent Soliz’s search was not reasonable in a case called United States v. Rangel Portillo.  Luckily for Rangel-Portillo, the passengers in his car were not “dirty and disheveled”--because nine years ago, the same court held that a border patrol stop was justified on that basis 160 miles from the border in an otherwise almost identical situation. 

The court ultimately got this case right, but the problem of racial profiling against Latinos both near the border and just about everywhere else is growing, and wins such as Rangel-Portillo’s are rare.  Because the untold number of stops that do not yield arrests aren’t regularly litigated, we may never know how many innocent Latino citizens are harassed in this manner.   A recent survey by the Pew Center suggests that one in ten Latinos in the United States were pulled over and questioned about their immigration status in 2008.   A long time ago the Supreme Court held that border patrol agents are not required to have the same probable cause that they must have everywhere else in order to stop and question drivers in the border region (within 100 miles of the border), and courts and agents have generally taken this to heart.  According to the Supreme Court in 1975, while in the border zone, “Mexican appearance” is “a relevant factor” in deciding whether a border patrol agent can pull over any car she likes.

It is not that the logic is wrong.  If you pull over every individual that “looks” Mexican, you’ll probably catch a lot of undocumented Mexicans.  But you’ll also harass an awful lot of individuals who are here lawfully—and in the process violate the Constitution.  This is happening around the country.  The border patrol has long stood accused of racial profiling along the southern border, and in recent years, agents have started pulling the same tricks far away from Mexico -- along the Canadian border.   Immigrants in upstate New York have reported being harassed in their hometowns by “roving patrols” of immigration agents, as well as being questioned without any probable cause while riding Greyhound buses and Amtrak trains.

The Fifth Circuit got its most recent case right, but our federal courts have a long way to go in combating racial profiling against its Latino population.  Hopefully the Supreme Court—which eagerly, if disingenuously, proclaimed the importance of avoiding racial classification while striking down progressive attempts to encourage school integration in Seattle (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” )—will reconsider its longstanding authorization for agents to consider the color of a driver’s skin when making traffic stops.

Phil Mayor is a second year law student at Harvard Law School where he is an Editor for Amicus, the online supplement to the Harvard Civil Rights and Civil Liberties Law Review. He also runs the Harvard Immigration Project and sits on the boards of the Harvard Law chapters of the ACLU and the American Constitution Society. Before law school, Phil worked for three years as a legal assistant for Human Rights Initiative of North Texas where he worked on asylum cases and immigration cases for immigrant survivors of domestic violence. He spent his first summer during law school working at LatinoJustice in New York City.

(Photo by O.Cosma.)