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10 Years Later: Post 9/11 Racial Profiling in the Immigration Context

posted Mar 17, 2011, 10:57 AM by Sumiyia Jafri   [ updated Mar 17, 2011, 11:03 AM ]

By Sumiyia Jafri, Esq.  

March 17, 2011. 

Racial profiling occurs when law enforcement authorities target particular individuals based on their personal characteristics, such as their race, ethnicity, national origin or religion, with the erroneous assumption that these personal traits make these individuals more likely to engage in certain types of unlawful conduct than individuals who do not possess these traits. This is an unjust and ineffective method of law enforcement which makes us less, not more, safe and secure. However, this practice is pervasive and commonly used by law enforcement officials at all levels. 

Just prior to September 11, 2001, a national consensus against the use of racial profiling had begun to take hold. In fact, we had begun to see a push towards the enactment of a comprehensive federal statute banning the practice. However, the events of 9/11 quickly changed this course of action. The federal government took a magnifying glass to the Muslim, Middle-Eastern and South-Asian communities, singling them out for questioning, detention and other law enforcement measures, many of which involved racial profiling.

Now, nearly ten years after 9/11, there appears to be no sign of the practice dying off. Instead, we are beginning to see McCarthy-esque Congressional hearings singling out entire religious communities to determine where their loyalties lie. Rather than continuing down this path, it is time, now, to re-establish a national anti-racial profiling consensus and take the steps necessary to end the practice in all contexts at the federal, state, and local levels. This is the purpose of the new Leadership Conference report. In an update to its original 2003 report, the Leadership Conference recently published “Restoring a National Consensus: The Need to End Racial Profiling,” which re-examines the use of racial profiling in its original street-level context as well as in the context of counter-terrorism and immigration. Through this report, the Leadership Conference seeks to re-establish a national consensus against racial profiling in all its forms.

Though the report presents an in-depth discussion of other contexts, most relevant to our discussion here is the use of racial profiling in the immigration context. Immigration, as always, is a hot-button issue with opinionated individuals frequently presenting passionate, and often misinformed, arguments. Are immigrants taking “our” jobs? Are immigrants causing an increase in crime? Should the problem of illegal immigration be solved by, as Rep. Virgil Peck (R) of Kansas suggests, shooting them from a helicopter like feral hogs? These thought-provoking inquiries aside, it is worthwhile to examine the use racial profiling as it stands today, and its relation to immigration policy and enforcement in the United States.

The report states, “In the immigration law enforcement context, the federal government has shifted significant responsibility for the enforcement of civil immigration laws to state and local law enforcement authorities through ICE ACCESS programs.” The most notable of these programs are the 287(g) program, the Criminal Alien Program, and the Secure Communities program.

The 287(g) program was meant to enable state and local law enforcement authorities to identify suspected undocumented immigrants “who pose a threat to public safety.” In reality, however, the 287(g) program has been widely misused by state and local law enforcement authorities to stop, detain, question, and otherwise treat as suspected undocumented immigrants vast numbers of persons – primarily Hispanics – most of whom are U.S. citizens or legal residents. These programs are currently in effect in 23 different states across the nation, and continue to get increased funding every year.

Under the 287(g) program, police officers in New Jersey stopped and questioned tens of thousands of Hispanic motorists, pedestrians, passengers, and others who had committed no crime. In doing so, the officers routinely ignored the limitations against such stops as clearly stated in the intent of the law. In the six months following the issuance of the 287(g) directive, the police referred 10,000 people who they believed to be undocumented to ICE. Some of these were actually crime victims. Others were jailed for days without charges. Many turned out to be green card holders or U.S. citizens. Only 1,417 of these individuals were actually charged with immigration offenses by the federal government.

As a result of the 287(g) program’s inception, there has been a significant increase in “Driving While Brown” traffic stops. A troubling pattern has emerged in many jurisdictions where local police officers make traffic stops of Hispanic drivers for minor infractions, if any even exist, and arrest the drivers rather than issue a customary citation. This arrest allows for a federal background check to be conducted, which wouldn’t otherwise be possible without the arrest, and allows officers to determine whether the driver is an undocumented immigrant. A particularly troubling case is that of Juanna Villegas who was nine months pregnant when arrested during a “Driving While Brown” stop. Upon going into labor, she was handcuffed and transported to a hospital, where her leg was cuffed to the hospital bed until she gave birth. Further details about the abuse Ms. Villegas and her infant child had to endure, as well as other far-reaching effects of the 287(g) program, are available here.


The Criminal Alien Program involves an immigration screening process within federal, state, and local correctional facilities to identify undocumented immigrants “who pose a threat to public safety.” Through this program, immigration holds are placed on criminal aliens to process them for deportation/removal before they are released to the general public. Although CAP is intended to target “illegal aliens with criminal records who pose a threat to public safety,” a recent study by the Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley School of Law, indicates that the program is not effective in prioritizing the arrest and removal of individuals who commit dangerous or violent crimes. The study, which examined the CAP program in Irving, Texas, found that felony charges accounted for only two percent of the immigration holds, while 98 percent were issued for misdemeanor offenses. Minorities are heavily impacted by this program and frequently targeted through the use of racial profiling.


The Secure Communities program allows local law enforcement authorities to run fingerprint checks against the Department of Homeland Security databases, not just FBI databases. Local Law Enforcement Agencies can apparently run fingerprint checks of any person in their custody, thus making the Secure Communities program ripe for abuse. With the program in place, police may have a strong incentive “to arrest people based on racial or ethnic profiling or for pretextual reasons so that immigration status can be checked.”


Federal inaction on comprehensive immigration reform has prompted a flurry of activity by state lawmakers seeking to fill the void left by Congress. The most sweeping and controversial of these state laws is Arizona’s S.B. 1070, which is widely seen as encouraging racial profiling. The bill turns mere civil infractions of federal immigration law, such as not carrying immigration registration papers, into state crimes, and requires police to inquire about the legal status of individuals if “reasonable suspicion” exists during arrests or even traffic stops. Clone bills are currently in consideration in more than 20 states around the country.

In many of the stops and investigations conducted by law enforcement agencies under the above programs, the pretext for any stop or detention is almost always based on racial profiling with the assumption that individuals that hold these particular characteristics are more prone than others to engage in unlawful conduct. The Leadership Conference report makes the case against racial profiling by showing that these assumptions are false. The report also demonstrates the devastating impact that racial profiling has on individuals, families, and communities that are subject to the practice; and explains why racial profiling is in all contexts a flawed law enforcement method that diverts and misuses precious law enforcement resources and destroys the relationship between local law enforcement authorities and the people that they must rely on in carrying out their law enforcement activities.

Racial profiling has proven time and again to be ineffective and damaging. It is time that we learn from our mistakes, reform the system, and prohibit law enforcement from engaging in racial profiling, whether in counterterrorism, immigration, or any other contexts.