(Un)Reasonable Suspicion: Racial Profiling in Immigration Enforcement after Arizona V. United States

Abstract

On June 25, 2012, the United States Supreme Court issued its landmark decision in Arizona v. United States, striking down three of the four provisions of Arizona’s notorious S.B. 1070 challenged by the United States Department of Justice as preempted by federal immigration law. Despite agreeing with the government that the majority of Arizona’s attempt to regulate immigration at the state level through S.B. 1070 was impermissible, the Supreme Court let stand the most controversial section of the law, Section 2(B) – the so-called “show me your papers” provision. Under Section 2(B), state and local law enforcement officials in Arizona are required to check the immigration status of persons whom they have “reasonable suspicion” to believe are undocumented. It is the meaning of “reasonable suspicion” in the context of immigration enforcement – and how state and local law enforcement will apply this requirement – that has given rise to concerns of racial profiling once the law goes into effect.

This Article examines the “reasonable suspicion” requirement of S.B. 1070’s Section 2(B), and argues that enforcement of this provision will give rise to stops, detentions, and arrests based on constitutionally impermissible factors such as race, color, and ethnicity that will ultimately stymie the efforts of Arizona and other jurisdictions to enact state-level immigration enforcement laws. Part I discusses the enactment of S.B. 1070 in 2010, and the decisions by lower federal courts enjoining major provisions of the law. Part II analyzes the United States Supreme Court’s decision in Arizona v. United States striking down the majority of S.B. 1070 as preempted by federal immigration law. Part III discusses Section 2(B) and the “reasonable suspicion” standard that permits state and local law enforcement to inquire as to the immigration status of persons they believe may be undocumented. The Article concludes with Part IV, which argues that Section 2(B) will ultimately be deemed unconstitutional due to the inability to enforce it in a manner that does not impermissibly rely on racial profiling, and that its demise will lead to more state reliance on cooperative immigration enforcement with federal authorities – such as the Secure Communities program – and bring about the end of attempts to pass state-level immigration enforcement regulations.

Keywords: Arizona, S.B. 1070, racial profiling, immigration, preemption