Cornell Law Review

In 1896, Justice Harlan dissented against the “separate, but equal” doctrine established by Plessy v. Ferguson,^{11. 163 U.S. 537 (1896).} saying,

[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.^{22. Id. at 559 (Harlan, J., dissenting) (emphasis added).}

It took the Supreme Court over sixty years to finally overrule the “separate, but equal” doctrine in Brown v. Board of Education,^{33. 347 U.S. 483, 495 (1954).} but only twenty-one years later in 1975, the Court itself established another doctrine that downgraded people of Hispanic origin to second-class citizens.

In United States v. Brignoni-Ponce,^{44. 422 U.S. 873 (1975).} the Supreme Court sanctioned the use of “apparent Mexican ancestry” as a valid factor in an immigration law enforcement officer’s analysis on whether to detain a suspected undocumented immigrant because “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”^{55. Id. at 885–87.} Through the years, this ethnic classification has evolved without any explanation in the courts into its current vague and all-encompassing form: “Hispanic appearance.”^{66. See Nicacio v. INS, 797 F.2d 700, 701 (9th Cir. 1985).} This unclear and over-generalized ethnic classification is still widely used today by the United States Border Patrol (USBP) in their immigration investigatory stops^{77. The label of “immigration investigatory stops” throughout the Note refers to those Terry investigatory stops conducted by USBP officers to question individuals about their immigration status. See Terry v. Ohio, 392 U.S. 1, 16 (1968).} and upheld on a daily basis by federal courts around the country, especially those courts located in the southern border.

The “Hispanic appearance” classification must raise concerns for all people of Hispanic origin and minority groups around the country. Both 8 U.S.C. § 1357 and 8 C.F.R. § 278.1 authorize USBP to conduct immigration investigatory stops of individuals suspected to be aliens within a 100-mile border zone along the United States border.^{88. With respect to powers of the immigration officers and employees, 8 U.S.C. § 1357 (1994) provides: “a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; . . . (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent illegal entry of aliens into the United States; [and]
(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, or expulsion of aliens.” The Attorney General has authorized Border Patrol officers to act as Immigration officers. 8 C.F.R. § 103.1(i) (1974). The “reasonable distance” mentioned in § 1357(a)(3) is 100 air miles. 8 C.F.R. § 287.1 (a)(2) (1999).}

While most of the immigration investigatory stops take place within the southern border, the 100-mile border zone extends the USBP’s authorization to conduct these stops within 100 air miles of the Canadian border, the Atlantic, Pacific, and Gulf coasts, as well as within the perimeters of Alaska and Hawaii.^{99. See Area Search Warrants in Border Zones: Almeida-Sanchez and Camara, 84 YALE L.J. 355, 357–58 (1974).} According to the American Civil Liberties Union, “[r]oughly two thirds of the United States population lives within the 100-mile border zone[,] . . . [t]hat’s about 200 million people.”^{1010. The Constitution in the 100-Mile Border Zone, AM. CIVIL LIBERTIES UNION, https://www.aclu.org/other/constitution-100-mile-border-zone [https://perma .cc/74MP-ZAZ6] (last visited Sept. 20, 2019). Nine of the ten largest U.S. metropolitan areas fall within the 100-mile border zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose. Id.} As these figures suggest, USBP officers patrol more than just the border.

Although the USBP’s mission of finding and locating undocumented immigrants has been an issue for the agency since its inception, the recent harsh immigration policies of the Trump Administration have sparked fear in immigrant communities nationwide. Under the Obama Administration, immigration law enforcement agencies were previously instructed to prioritize locating and deporting undocumented immigrants with criminal backgrounds.^{1111. See Wesley Lowery, Federal Agents Ask Domestic Flight Passengers to Show IDs in Search for Immigrant Ordered Deported, WASH. POST (Feb. 24, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/02/23/federalofficers-ask-domestic-flight-passengers-to-show-ids-in-search-for-undocumented-immigrant/?utm_term=.3065ccffdc28 [https://perma.cc/8RNY-LM2D].} However, the Trump Administration now has issued new guidelines to these agencies that empower them to “target, detain and deport any of the millions of immigrants currently in the United States without documentation, including those without past criminal convictions.”^{1212. Id.} In addition, some of the Trump Administration’s objectives in immigration law enforcement include recruiting 5,000 new USBP officers by lowering their hiring standards^{1313. See Exec. Order No. 13,767, 82 Fed. Reg. 8,793 (Jan. 25, 2017); Vivian Yee & Ron Nixon, To Detain More Immigrants, Trump Administration to Speed Border Hiring, N.Y. TIMES (Apr. 12, 2017), https://www.nytimes.com/2017/04/12/us/ trump-immigration-border-hiring.html [https://perma.cc/3D8Y-CEXA].} and “[i]ncreas[ing] northern border security.”^{1414. Trump Administration Immigration Policy Priorities, OFFICE OF THE PRESS SECRETARY, THE WHITE HOUSE (Oct. 8, 2017), https://www.whitehouse.gov/brief ing-statements/trump-administration-immigration-policy-priorities [https://per ma.cc/GR3D-ESSW].}

On their face, these policies seem to only target undocumented immigrants nationwide. However, the reality is that immigration law enforcement agencies currently enforce these policies in a way that also harms U.S. citizens and documented immigrants from minority groups.^{1515. See, e.g., Alvaro Huerta, The ‘War on Immigrants’: Racist Policies in the Trump Era,HUFFINGTON POST (Aug. 7 2017), https://www.huffingtonpost.com/ entry/the-war-on-immigrants-racist-policies-in-thetrump_us_5980bf68e4b0d187a596909b [https://perma.cc/8TUF-B9S8] (arguing that the immigration policies of the Trump Administration have become highly “racialized” through the President’s rhetoric of “anti-Mexicanism and Islamophobia”); NANCY MORAWETZ, ANNA SCHOENFELDER & NATASHA RIVERA SILBER, N.Y.U. L. IMMIGRANT RTS. CLINIC, UNCOVERING USBP: BONUS PROGRAMS FOR UNITED STATES BORDER PATROL AGENTS AND THE ARREST OF LAWFULLY PRESENT INDIVIDUALS 1 (2013) [hereinafter “UNCOVERING USBP”] (“Those caught in USBP’s dragnet include U.S. citizens, lawful permanent residents, tourists, student visa-holders and persons with proper authorization to work in the United States.”).} Current enforcement of these immigration policies harms members of minority groups because of deeply flawed and outdated legal standards—like the Hispanic appearance classification—that should not persist under today’s vastly different circumstances.

There is no better example that illustrates the insidiousness of the enforcement of these flawed and outdated legal standards than the USBP’s immigration investigatory stops on domestic travelers at the Transportation Security Administration’s (TSA) pre-boarding screening checkpoints at airports, typically along the southern border. These immigration investigatory stops occur frequently and are based solely on the travelers’ race and ethnicity,^{1616. See, e.g., Jinjoo Lee, Cornell Graduate Students Arrested Near U.S.-Mexico Border, CORNELL DAILY SUN (Mar. 27, 2013), http://cornellsun.com/2013/03/27/ cornell-graduate-students-arrested-near-u-s-mexico-border/ [https://perma.cc/ BHV8-UKLJ] (describing how two Cornell graduate students were arrested after they refused to answer a USBP officer’s questions at the TSA checkpoint about their citizenship status at a Texas airport); Jim Yardley, Some Texans Say Border Patrol Singles Out Too Many Blameless Hispanics, N.Y. TIMES (Jan. 26, 2000), http://www.nytimes.com/2000/01/26/us/some-texans-say-border-patrol-singles-out-too-many-blameless-hispanics.html?mcubz=3 [https://perma.cc/ KVA3-YXGG] (describing how USBP even stopped and refused to let Cameron County Judge Gilberto Hinojosa board a plane to Houston until he stated his citizenship).} but perhaps most importantly, the circumstances under which the USBP conducts these immigration investigatory stops and the legal basis sanctioning them render the Fourth Amendment’s safeguards of domestic travelers ineffective.^{1717. See infra Parts III and IV.}

TSA pre-boarding screening checkpoints usually follow the same security procedures in every airport in the United States.^{1818. See, e.g., JBG TRAVELS, 3046 Going Through TSA Security Check Point, YOUTUBE (Dec. 18, 2016), https://www.youtube.com/watch?v=t7fBqju2GJY [https://perma.cc/MM27-TAWX] (depicting the TSA security screening process at an airport in Milwaukee).} Travelers wait in line with their carry-on luggage along corridors formed by retractable belt stanchions to be called by TSA officers at their podiums.^{1919. Id.} Once at the podiums, travelers must show a form of identification and their airline tickets to the TSA officer before proceeding to the conveyor belt, where travelers place their belongings—including their shoes—and proceed to an x-ray scanner.^{2020. Id.} After successfully passing through these security procedures, travelers proceed to a boarding gate and board their flight.^{2121. Id.} However, some airports located near the U.S.-Mexico border are different from other airports around the country in that USBP officers are stationed at these TSA checkpoints.^{2222. See Yardley, supra note 16 (“[USBP] [a]gents are posted in the airport and bus station and along highways . . . .”).} Officers position themselves between the TSA podiums and the conveyor belt, and they take advantage of the compulsory circumstances of the TSA checkpoint environment to conduct their own “random” immigration investigatory stops on unsuspecting travelers.^{2323. See infra Part III.} With an upcoming surge in recruitment for USBP officers and a harsher enforcement of these immigration policies,^{2424. See Yee & Nixon, supra note 13.} potentially all airports in most major U.S. cities within the 100-mile border zone will have USBP officers stationed at their TSA pre-boarding screening checkpoints, who will be authorized to arbitrarily stop and harass millions under the pretext of border security.

This Note argues that USBP immigration investigatory stops conducted in TSA pre-boarding screening checkpoints at airports in the southern border are unreasonable under the Fourth Amendment and that the current standard for USBP to conduct an immigration investigatory stop is antiquated and violates the Equal Protection Clause. Part I briefly discusses the history of the USBP and its focus on Mexican and Hispanic immigrants. Part II examines law enforcement’s application of the Fourth Amendment and the reasonable suspicion standard, focusing on its application in the context of immigration law enforcement and each of the different types of immigration investigatory stops delineated by the Supreme Court. Part III examines the legal standards sanctioning TSA pre-boarding screening checkpoints and describes how USBP details conduct immigration investigatory stops in these checkpoints. Part IV argues that the USBP’s immigration investigatory stops at TSA pre-boarding screening checkpoints are unreasonable under the Fourth Amendment because of the compulsory conditions of the TSA checkpoint and the manner by which USBP officers conduct these stops. Finally, Part V argues that the Hispanic appearance classification in the current reasonable suspicion standard to stop suspected undocumented immigrants violates the Fourteenth Amendment’s Equal Protection Clause because it is not narrowly tailored to further border security and reduce overall illegal immigration.

To read more, click here: Traveling While Hispanic”: Border Patrol Immigration Investigatory Stops at TSA Checkpoints and Hispanic Appearance.