Arizona Senate Bill 1070, Brignoni, and the Convention on the Elimination of All Forms of Racial Discrimination: has the United States complied with its treaty obligations, and should it in the future?

• Author: Erwin, Anna C.

1. INTRODUCTION

   On December 21, 1965, in the midst of apartheid and extreme racial tensions throughout the world, the General Assembly of the United Nations ("UN") signed and ratified the Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). (1) CERD seeks to "prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law." (2) While the United States signed the treaty with significant reservations, understandings, and declarations, (3) the United States is a signatory and party to the treaty; (4) therefore, it is obligated to comply with all provisions and eliminate federal and state legislation within that is contrary to the mandate of the treaty. (5)

   Almost forty-four years later, on April 23, 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act, Senate Bill 1070 ("S.B. 1070"). (6) This statute is one of the strictest and most far-reaching immigration laws in effect in the United States. (7) The law greatly increases the ability of state and local law enforcement to inquire into an individual's immigration status, and it broadens the power of Arizona law enforcement to carry out federal immigration laws against illegal immigrants. (8) Immigration enforcement, however, is an area reserved exclusively for the federal government. (9)

   Supporters of the Arizona law believe that the federal government has neglected to enforce immigration laws, (10) a belief fueled by several perceptions about illegal immigration. One perception is that Arizona is simply overrun with foreigners who are breaking the law by immigrating illegally. (11) The statistics used to support this perception often use somewhat simplistic methods. (12) Another perception is that uncontrolled immigration leads to higher crime rates, (13) a perception that is supported by Hispanic U.S. citizens' and Hispanic immigrants' involvement in drug trade (14) as well as human and drug smuggling in the United States. (15) Others believe that high rates of immigration hurt the U.S. economy and decrease the number of jobs available to U.S. citizens. (16)

   In response to these concerns, S.B. 1070 allows Arizona law enforcement officers to conduct a "lawful stop, detention or arrest" if a "reasonable suspicion exists that the person is an alien," and the officers must make an attempt to determine the person's immigration status before the person is released. (17) The law originally stated that officers cannot "solely" rely on race when determining whether a reasonable suspicion exists to inquire into citizenship status, (18) which raised concerns that officers would use racial profiling in enforcement. (19) In response, S.B. 2162 amended S.B. 1070 to prohibit law enforcement officers from taking into consideration "race, color or national origin" when deciding whether to conduct an immigration stop. (20) Even as amended, however, the law allows the use of race "to the extent permitted by the United States or Arizona Constitution." (21) Proponents of S.B. 1070 insist that the statute explicitly forbids the use of race in immigration enforcement; however, as Part II discusses, the U.S. Constitution does not prohibit the use of race in immigration enforcement.

   This Note explores to what extent constitutional jurisprudence permits the consideration of race in immigration enforcement. (22) Part II discusses the history of racial profiling in U.S. immigration law; Part HI reviews international law relating to racial profiling, specifically CERD; Part IV examines the United States' and Europe's adherence to and compliance with CERD; and Part V analyzes the value and costs of using racial profiling in immigration law. In conclusion, this Note discusses whether the United States should remain a party to CERD and fully implement its provisions or withdraw.

2. HISTORY OF RACIAL PROFILING IN THE CONTEXT OF U. S. IMMIGRATION LAW

   American case law pertaining to racial profiling involves profiling in both domestic criminal and immigration contexts. The Supreme Court decision in Whren v. United States (23) marked a turning point in the use of racial profiling in the domestic criminal context. Whren held that as long as reasonable, objective, probable cause to stop an individual exists, the actual motives or subjective intent of law enforcement in conducting the stop will not affect the constitutionality of the stop. (24) While the Whren decision might be more efficient than requiring a court to determine the subjective intent of the officer, some scholars believe that the Court in Whren adopted a policy of "color-blind racism" that merely increased the power of the police to discriminate in law enforcement. (25)

   In the 1980s, the Reagan administration's War on Drugs (26) increased the degree to which individuals and immigrants of Latino descent were targeted by racial profiling. (27) President Nixon created the Drug Enforcement Administration in 1973, (28) but large amounts of cocaine were still being brought into the United States from Latin America despite U.S. efforts. (29) A media frenzy surrounded the use of crack and its impact on U.S. citizens, which consequently increased pressure on the police to stop the flow of illegal drugs. (30)

   A recent context in which racial pro fling has been at issue is the profiling of persons of Middle Eastern descent after the attacks on September 11, 2001. Unlike profiling used to detect general criminal behavior in which no specific suspect was previously identified, the hijackers on September 11 were all of Middle Eastern descent (31) and therefore more readily fit a profile. (32) As one scholar noted, "The facts relating to terrorism remain clear: Islamic anti-American terrorism almost by definition involves Muslims from the Middle East or Asia. A system of random screening that ignores this fact can easily miss potential terrorists." (33) Similarly, in the context of immigration in Arizona, immigrants crossing the U.S.-Mexican border illegally are more likely Hispanic. (34) Therefore, as with terrorism, there is a higher correlation between race and illegal-border crossings than between race and general criminal behavior.

   In light of the relevance of race in illegal immigration, several important cases have established broader boundaries for the acceptable use of racial profiling in the context of U.S. immigration enforcement. In 1975, the Supreme Court in United States v. Brignoni-Ponce (35) established that law enforcement may consider "appearance" as one of many factors when determining whether a reasonable suspicion exists to inquire into an individual's immigration status. (36) The Court in Brignoni clearly stated that appearance alone cannot sustain a reasonable belief as to one's immigration status and limited U.S. Border Patrol powers to conduct arbitrary stops. (37) The Court, however, explicitly condoned racial profiling by deeming race a "relevant factor." (38)

   In 2000, the Ninth Circuit's decision in United States v. Montero-Camargo (39) found the Brignoni factors no longer applicable. (40) Given the large size of the Hispanic population in the Southwest, the court stated that Hispanic appearance is "of little or no use" to law enforcement when garnering a reasonable suspicion to perform an investigatory immigration stop. (41) The court considered the reasoning in Brignoni but found the reasoning outdated. (42) In its ruling, the court stated definitively that race cannot be used as a factor to question someone's immigration status. (43) While the reasoning in Brignoni still stands as law in the United States, many courts have followed the reasoning in Carmargo. (44)

   Scholars have debated the impact of the reasoning in Brignoni on American immigration jurisprudence. (45) Some believe that the Brignoni reasoning is the minority view; (46) however, many believe that Brignoni has set a dangerous and broad precedent that could allow for the use of race or national origin in profiles outside the immigration context. (47) Some have agreed with the Ninth Circuit's reasoning in Camargo that "Mexican appearance" is no longer useful or an accurate criterion to use when deciding whether to conduct an immigration stop because individuals of Mexican descent have varied appearances and cannot be identified using a recognizable stereotype. (48) In addition, there is some evidence that Mexican immigrants overstay their visa periods at a far lower rate than immigrants from other countries. (49) Combined with Carmargo's reasoning that the factors used in the Brignoni decision are no longer workable given the current immigrant populations, there are a number of persuasive reasons to limit the application of Brignoni.

   Arguably, the Court in Brignoni could have taken a Whren-like colorblind approach, finding that any objective violation makes an immigration stop reasonable, (50) but perhaps the Court wanted to give law enforcement even broader discretionary power to enforce immigration laws if a totality of certain circumstances exists. Alternatively, the Court could have taken a Camargo-like approach, recognizing the correlation between race and citizenship status (51) but still forbidding the use of profiling due to the potential for racial profiling to violate the rights of both citizens and non-citizens. (52) Under this approach, the Court could have mandated the use of race-neutral immigration laws that, even if much less effective, afford greater protection under the Constitution (53) and comply fully with the United States' obligations under international law. (54)

3. INTERNATIONAL LAW AGAINST RACIAL PROFILING: CERD

   Under CERD, all forms of racial profiling are prohibited regardless of their use or effect. CERD, however, does relax its obligations on states in immigration law. In particular, CERD notes that it "shall not apply to...