Outside a Home Depot in Westlake, Los Angeles, it was typical for day workers to gather in the parking lot to find work with contractors and homeowners visiting the store. But on June 6, as U.S. Immigration and Customs Enforcement (ICE) agents conducted violent immigration raids across the city, white vans rushed into the parking lot and unloaded masked officers who, after asking around in Spanish for day workers, handcuffed and arrested people.
The raid, along with a similar one that occurred at an apparel warehouse in another part of the city on the same day, prompted Los Angeles court district judge Maame Ewusi-Mensah Frimpong to issue a temporary restraining order (TRO) a little over a month later covering several Southern California counties. Frimpong wrote that her decision was based on “ample evidence that seizures occurred based solely upon” one of four factors—an individual’s apparent race or ethnicity, their accent or use of Spanish, their presence at a farm or known work pickup site, or the type of work they do.
Using race to determine reasonable suspicion is an issue that has been argued in front of the Supreme Court for decades. In the long history of government surveillance, detention, and deportation, the use of race by multiple federal government agencies in a variety of contexts is nothing new. For years, advocates have criticized ICE for using it in immigration enforcement and surveillance operations.
The Los Angeles case was soon brought to the Supreme Court, which, on September 8, voted 6 to 3 on ideological lines, issuing an opinion in Noem v. Vasquez Perdomo overturning the TRO. The decision was unsigned, which in Court precedent typically indicates that the case matter is non-controversial. It also only applies to the restraining order—not the merits of the case as a whole—which will be debated in future litigation surrounding the raids. But per the ruling, ICE agents in Los Angeles can legally constitute reasonable suspicion on the basis of assumed race or ethnicity until the merits of the case are decided. To immigration experts, the decision has “effectively legalized racial profiling.”
Now, the city of Los Angeles and its communities are grappling with the practical implications of the Court’s decision. Street vendors with legal residencies in the Boyle Heights neighborhood have begun carrying their passports, Real ID cards, and green cards with them at all times, making the difficult choice between asserting their right to exist without proof of residency and avoiding the risk of being targeted by an ICE agent and not having their documentation. In an attempt to prevent further fallout, the Los Angeles County Board of Supervisors declared a state of emergency in mid-October which lays the groundwork to provide eviction moratoriums for tenants too afraid to leave their homes for fear of arrest.
The lower courts and legal advocates, including Immigration Defenders Law Center managing attorney Brynna Bolt, have argued that the use of the four factors by ICE agents during patrols in Los Angeles—and around the country—is purely racial profiling. “The individuals that we’ve seen swept up, they are primarily Latino, primarily Spanish speaking, primarily working or arrested in proximity to places where people work low-wage jobs,” Bolt tells The Progressive. “We have clients who have lawful immigration status who have been swept up in the raids.”
Though the Supreme Court decision only pertains to Los Angeles and the surrounding areas, it signals the permissibility of racial profiling in the eyes of the Court. In a concurring opinion, Justice Brett Kavanaugh claims that immigration stops would be a small inconvenience to citizens or legal residents. But in Ventura County, one of seven in California where racial profiling is now temporarily sanctioned, a U.S. citizen was arrested and detained by masked agents who subsequently refused to allow him to produce identification verifying his legal status.
The man, George Retes, is an Army veteran who was held in an immigration detention center for three days and denied access to a lawyer and a phone call. Retes missed his daughter’s third birthday while in detention. “It would have taken them two minutes to check my papers and confirm that I was a citizen,” Retes wrote in the San Francisco Chronicle. “Instead, they arrested me because I was there.” According to the Federal Tort Claims Act, Retes must wait six months after filing an administrative claim with ICE before he can file a lawsuit against the U.S government for being unconstitutionally detained, which he plans to do.
Meanwhile, ICE stops have become increasingly chaotic and violent. In September, an ICE agent fatally shot a man in a suburb of Chicago, Illinois, claiming the man had dragged one of the officers with his car; body camera footage released later recorded the officer describing his injuries as “nothing major.” In Boston, Massachusetts, a family has accused ICE of using their five-year-old daughter to lure her father out to agents for arrest. And in Los Angeles earlier this month, ICE agents took a toddler during another immigration raid at a Home Depot in Cypress Park.
The opinion has had a chilling effect on citizens of color throughout the country, some of whom have begun carrying their passports, deleting social media apps from their phone before trips, and canceling trips altogether, as residents of all documentation statuses fear being swept up in ICE raids.
The Department of Homeland Security (DHS) has denied that any use of racial profiling, writing on X that “allegations that DHS law enforcement officers engage in ‘racial profiling’ are disgusting, reckless, and categorically FALSE” and calling the criticisms “anti-ICE LIES.”
Even though immigration policies and programs have been technically considered colorblind, or race-neutral, due to a Civil Rights Era overhaul, immigration enforcement has in practice long employed racial profiling. “That’s always been an issue with immigration,” Bolt says. As a result, immigrant communities of color often fear going out due to pervasive stories of deportation and potential raids that manifest into emotional trauma.
As government surveillance ramped up in the decades after the 9/11 attacks, DHS has employed social media surveillance that specifically targets Middle Eastern, South Asian, and Muslim individuals. Both the DHS and the FBI use Section 702 of the Foreign Intelligence Surveillance Act—which was just expanded by Congress in 2024—to disproportionately surveil Middle Eastern and South Asian Americans, coordinating with corporations like Meta, Google, Microsoft, Verizon and AT&T.
In 2017, the FBI similarly surveilled Black people in an intelligence assessment entitled “Black Identity Extremists Likely Motivated to Target Law Enforcement Officers.” The agency’s actions echoed its historical surveillance of civil rights and Black Panther Party leaders, which was used as a part of a campaign to “discredit, or otherwise neutralize” Black power movements and which resulted in the deaths of Panther leaders Fred Hampton and Mark Clark.
Now, ICE is following suit by bolstering its surveillance capabilities. The agency is planning to set up intelligence-gathering centers in Vermont and California where contracted senior analysts and researchers can use a combination of social media and law enforcement and federal government database searches to target individuals for deportation.
As Wired reported last month, previous ICE surveillance tools have been the subject of lawsuits over their use in targeting civilians, threatening privacy rights, and sidestepping warrant requirements by collecting “vast amounts of data with no clear link to its enforcement mandate.”
In California, Bolt says that the use of race by immigration agents was already evident: “The federal government has made clear in this case and in the public square and by its own actions that they’re going to continue doing what they’re doing, and that the enforcement operation in Southern California is being driven by race.”
While there was no official written opinion in Noem, Kavanaugh’s concurring opinion downplays the detrimental effects of immigration stops. He also justifies the Trump Administration’s argument that such metrics fall under the definition of reasonable suspicion, writing, “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion . . . . However, it can be a ‘relevant factor’ when considered along with other salient factors.”
Kavanaugh’s claim cites the Supreme Court precedent set in 1975’s United States v. Brignoni-Ponce, which found that the Fourth Amendment did not justify Border Patrol agents stopping individuals solely based on the assumption of “Mexican ancestry,” but that race could be used in conjunction with other factors. In Noem, he states that, “Whether an officer has reasonable suspicion depends on the totality of the circumstances.” The current case, he argues, includes the known presence of “an extremely high number and percentage of illegal immigrants in the Los Angeles area” and that they “tend” to work certain jobs and “do not speak much English.”
Legal experts, including Rory Little writing for SCOTUSblog, warn that if Kavanaugh’s concurrent opinion in the temporary decision holds weight further down the road, “his view would constitute a significant doctrinal shift in ‘reasonable suspicion’ Fourth Amendment doctrine.”
The original case, which will determine the merit of using racial characteristics in constituting reasonable suspicion, is currently pending in district court. How the Supreme Court will rule on it is unclear, but their decisions in Noem have given some indication of where the Justices stand. In her dissent, Justice Sonia Sotomayor spears Kavanaugh’s concurrence, claiming that it “relegates the interests of U.S. citizens and individuals with legal status to a single sentence.”
Sotomayor also reiterates an interpretation of the Fourth Amendment that requires federal agents to rely on “specific articulable facts” to form a “particularized and objective basis” when determining reasonable suspicion, as was decided in 1981 in United States v. Cortez. Traits such as apparent race or language spoken, Sotomayor writes, are facts that “apply to a large category of presumably innocent people,” and therefore cannot indicate illegal presence any more than they could indicate legal presence.
The Supreme Court’s willingness to permit the use of race in Noem remains a stark example of the double standards that it has used when deciding racial cases in the past. As Stanford Law School professor Jennifer Chacón writes in Border Criminologies, “only in immigration policing cases does the Court explicitly reason that someone’s (racialized) appearance alone gets a law enforcement officer almost 100 percent of the way toward ‘reasonable suspicion.’ ”
Still, while Noem has legalized its use in immigration enforcement, the federal government has long been used in the United States to target certain individuals, citizens or not, and it likely won’t stop anytime soon.