Supreme Court allows ICE to stop, detain based on race

By Alvin Wu
Domestic Affairs
Supreme Court allows ICE to stop, detain based on race

Immigration agents arrest a man in Los Angeles during a May 2025 operation. ICE/Handout

WASHINGTON, Sept. 28 (ZFJ) — A judge’s order prohibiting immigration agents from stopping and detaining people based on race was overturned by the Supreme Court on Sept. 8.

U.S. Immigration and Customs Enforcement (ICE) agents have been conducting roving patrols in Los Angeles since this summer to fulfill arrest quotas as part of President Donald Trump’s mass deportation campaign.

In response to a lawsuit by multiple ICE detainees and advocacy organizations against the federal government, U.S. District Judge Maame Ewusi-Mensah Frimpong issued a temporary restraining order on July 11. She required that ICE provide detainees held in a detention center known as “Room B-18” with access to attorneys and legal representatives.

Frimpong also enjoined ICE “from conducting detentive stops” in her judicial district based on factors that amount to race or proxies for race.

…Defendants may not rely solely on the factors below, alone or in combination, to form reasonable suspicion for a detentive stop, except as permitted by law: i. Apparent race or ethnicity; ii. Speaking Spanish or speaking English with an accent; iii. Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or iv. The type of work one does.

— Order on Motion for Temporary Restraining Order, Frimpong, p. 50

The Supreme Court overturned Frimpong’s order, 6-3, with an emergency (shadow docket) order and without any explanation, allowing ICE to continue performing stops based on race.

BACKGROUND

Evidence submitted to the district court indicates that, from June 6, federal immigration agents targeted professions including car wash workers, agricultural workers, street vendors, recycling center workers, tow yard workers, and packing house workers at locations including farmers markets, swap meets, bus stops, parks, gyms, and churches.

Agents have been conducting their raids by suddenly appearing in large numbers with military or SWAT style clothing and weapons to detain people. These agents are often masked and have a “policy and practice” of refusing to identify themselves or explain the basis of their arrests.

Evidence indicates that detainees at B-18, a detention facility located in the basement of a federal building, have been “routinely deprived” of food, water, medical care and medications, and women’s hygiene products.

Immigration attorneys attempted to access B-18 to advise detainees of their rights on June 6 but were denied entry. They returned the next day to the family and attorney entrance, where they found a note saying no visits were permitted that day, and federal officers deployed “an unknown chemical agent” to force family members and attorneys to disperse.

Attorneys attempted to shout information about rights to detainees held in unmarked white vans departing B-18 that same day, and “federal agents blasted their horns” to drown them out.

Attorneys who did gain access to the facility were not allowed to meet detainees for more than 5-10 minutes, and officers refused to provide information on whether a person was being held at B-18 or had been transferred somewhere else.

Three plaintiffs in this case had been waiting at a bus stop to be picked up for work in the early morning of June 18 in Pasadena, California, when about four cars with half a dozen masked, armed agents appeared. The agents refused to identify themselves, did not show a warrant or explain the basis for their arrests, and did not check the plaintiffs’ IDs until they were detained and taken to a nearby CVS parking lot. At the time the judge’s order was issued, the men were being held at B-18 or other detention centers in the area.

In the morning of June 18, one plaintiff had been working at a car wash in Orange County when agents arrived, refused to identify themselves, and questioned him. He explained that he was a dual citizen of the U.S. and Mexico, but he did not have his passport, so he was detained. Agents verified his citizenship and returned him to the car wash about 20 minutes later, which another group of agents raided again shortly after.

In the afternoon of June 12, a plaintiff who is a U.S. citizen was at a tow yard in Los Angeles County that was visited by a roving patrol. An unmasked agent questioned the citizen and was unsatisfied when he was unable to identify the hospital he was born in, so the agent pushed the citizen against a fence, put his hands behind his back, twisted his arm, and took his phone that he’d been holding. The citizen provided his Real ID, which agents took. They returned the phone about 20 minutes later, but did not give back the Real ID.

Immigration agents detain Brian Gavidia, a U.S. citizen and plaintiff in this case.

Frimpong’s decision to issue the temporary restraining order was based on these facts. Her order was affirmed on appeal to the 9th Circuit.

The Fourth Amendment of the U.S. Constitution prohibits the government from detaining someone without a clear reason to believe that the person has violated the law.

​​The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

— Fourth Amendment, U.S. Constitution

The Immigration and Nationality Act allows immigration officers to briefly detain people if they have “a reasonable suspicion, based on specific articulable facts, that the person being questioned…is an alien illegally in the United States.”

A SOLE CONCURRING OPINION

Five conservative justices of the Supreme Court did not offer a majority opinion to explain why they overturned Frimpong’s order. However, Justice Brett Kavanaugh submitted a concurring opinion to explain his views, and his views only, on the matter.

Kavanaugh likens this case to the previous case Los Angeles v. Lyons (81-1064), using Lyons to reason that plaintiffs lack the standing for this case because they may not “obtain future injunctive relief” “merely because plaintiffs experienced past harm and fear its recurrence.”

“…Like in Lyons, plaintiffs have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors—and certainly no good basis for believing that any stop of the plaintiffs is imminent,” writes Kavanaugh. In other words, he is saying that, just because they were allegedly stopped illegally previously, doesn’t mean that they are entitled to relief from any future illegal stops.

However, the district court’s evidence shows that ICE has been stopping people based on race as a matter of policy, and the federal government does not contest this fact. Kavanaugh addresses this point by saying that, “even if the Government had a policy of making stops based on the factors prohibited by the District Court,” it’s still okay if they don’t “rely only on those factors if and when they stop plaintiffs in the future.”

Kavanaugh points to a statistic, advanced by the Justice Department in a court filing without a source, that says “about 10 percent of the people in the Los Angeles region are illegally in the United States” to argue that L.A. residents are statistically more likely to be in the country illegally—and thus, a factor justifying ICE’s stops as presently conducted.

“To be clear, apparent ethnicity alone cannot furnish reasonable suspicion…however, it can be a ‘relevant factor’ when considered along with other salient factors,” says Kavanaugh, who goes on to write that ICE agents would undertake “further immigration proceedings” only if a person is in the country illegally.

“As for stops of those individuals who are legally in this country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States,” says Kavanaugh.

Kavanaugh writes that the government has shown that the district court’s order would cause it “irreparable harm,” saying that “the District Court’s injunction threatens contempt sanctions against immigration officers who make brief investigative stops later found by the court to violate the injunction.”

“The prospect of such after-the-fact judicial second-guessing and contempt proceedings will inevitably chill lawful immigration enforcement efforts.”

Kavanaugh dismisses the plaintiffs’ interests, writing, “the interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.”

He finishes his opinion by characterizing the district court as overreaching its authority and attempting to dictate policy, echoing Trump administration rhetoric of “activist judges” trying to usurp presidential power.

“Especially in an immigration case like this one, it is also important to stress the proper role of the Judiciary. The Judiciary does not set immigration policy or decide enforcement priorities.”

DISSENTING OPINION

Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, entered a dissenting opinion.

We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.

— Dissenting Opinion, Sotomayor, p. 2

Sotomayor points to the 21 declarations submitted to the district court as evidence describing ICE seizures to counter Kavanaugh’s assertions. She notes that the federal government has not submitted evidence that their seizures had not been based on race; that statements by federal officials indicate that agents have been relying on racial factors as a matter of policy, meaning that the chance of “recurrent injury” is highly likely; and that the government did not contest the district court’s finding of a “pattern of conduct that has apparent official approval.”

Referring to precedent, Sotomayor writes that “a set of facts cannot constitute reasonable suspicion if it ‘describe[s] a very large category of presumably innocent’ people.” For example, in U.S. v. Brignoni-Ponce (74-114), the Court found that “Mexican ancestry” was not sufficient for reasonable suspicion for Border Patrol stops, even near the border, because many citizens have Mexican heritage.

Sotomayor, noting that nearly 47% of people in the judicial district in question are Hispanic or Latino, argues that there is a clear constitutional violation, saying, “of course, aggregate statistics…cannot substitute for the individualized suspicion that the Fourth Amendment requires.”

In targeting the businesses, Sotomayor writes, instead of “showing that its seizures were based on credible intelligence about a particular employer at a particular location,” which would be specific and thus constitutional targeting based on clear facts, the government instead “targeted locations based on the ‘types of businesses,’” a practice “plainly insufficient” for suspecting a specific person under the Fourth Amendment.

Responding to Kavanaugh on the standing issue, Sotomayor points out that the district court’s evidence indicates that the government has “systematic operation” to target people of a certain race, approves of this practice, and is likely to target a given location over and over again. She says that, since the plaintiffs were seized at their workplaces, it is likely they will return to those same locations again.

Furthermore, the very reason the government appealed to the Court was so it could continue relying upon racial factors for detentions. Thus, Sotomayor reasons, it is likely the plaintiffs will be unconstitutionally detained again, so emergency relief is warranted.

Sotomayor rejects Kavanaugh’s claims that the government’s conduct is not harming people, observing that ICE agents have been heavily armed and have used physical violence to perform arrests, as well as the fact that U.S. citizens have been arrested and rendered unable to work to support their families.

She adds, “more fundamentally, it is the Government’s burden to prove that it has reasonable suspicion to stop someone. The concurrence improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely.”

“The Constitution does not permit the creation of such a second-class citizenship status.”

She concludes her opinion by criticizing the majority for failing to offer any explanation for their ruling.

REACTIONS

The Los Angeles Worker Center Network, one of the case’s plaintiffs, condemned the Supreme Court’s ruling.

“By siding with the Trump administration, the Court has opened the door for immigration agents to stop and detain people simply because of the color of their skin, the language they speak, or the work they do,” said the organization in a statement, vowing to keep up their lawsuit.

The U.S. Department of Homeland Security (DHS), ICE’s parent agency, hailed the ruling as a major win.

“This is a win for the safety of Californians and the rule of law,” said DHS Assistant Secretary Tricia McLaughlin in a statement. “DHS law enforcement will not be slowed down and will continue to arrest and remove the murderers, rapists, gang members, and other criminal illegal aliens that Karen Bass continues to give safe harbor.”

The DHS statement says that no “indiscriminate stops” are being made “to the mainstream media’s chagrin” (linking to a tweet by The New York Times) and asserts that ICE agents have been following the Fourth Amendment standard for reasonable suspicion.

The case is Pedro Vasquez Perdomo v. Kristi Noem (2:25-cv-05605-MEMF-SP) in the U.S. District Court for the Central District of California and Noem v. Vasquez Perdomo (25A169) in the U.S. Supreme Court.

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