SCOTUS Greenlights Racial Profiling in Immigration Enforcement: Noem v. Vasquez Perdomo

On September 8, 2025, in Noem v. Vasquez Perdomo, the Supreme Court of the United States granted the Trump administration’s application for a stay of a lower court order, thereby permitting Los Angeles Immigration and Customs Enforcement (ICE) agents to continue detaining individuals suspected of undocumented immigration based solely on race, ethnicity, language, location, or employment until further litigation proceeds.

The decision lifts U.S. District Judge Maame Ewusi-Mensah Frimpong’s temporary restraining order issued on July 11, which prohibited federal agents from making immigration stops without  reasonable suspicion that the person they were stopping was an undocumented immigrant. 

Frimpong ruled that race, ethnicity, language, location, or employment could not be considered “reasonable suspicion”. She determined that detaining individuals without reasonable suspicion and denying them access to legal counsel violated the Fourth and Fifth Amendments.

After the 9th Circuit Court of Appeals denied to lift Frimpong’s injunction, the federal government requested the Supreme Court stay Frimpong’s order on August 7th. US Solicitor General D. John Sauer claimed that the order imposed "a straitjacket on law-enforcement efforts".

These law enforcement efforts are part of the Trump administration’s agenda, which include “roving patrols” concentrated primarily in Los Angeles and Chicago, but with further operations taking place in other cities. During these raids, federal agents have frequently shown up masked and heavily armed at sites such as bus stops, car washes, day labourer pickup sites, and agricultural sites to question individuals suspected of being undocumented immigrants. In many cases, agents have refused to provide a reason for their stop and have followed, pushed, beaten, and taken individuals, including U.S. citizens, to detention centres.

With many of the stops indiscriminately based on ethnicity, language, location, and type of work, a constitutional issue arises over whether the government’s practices violate the Fourth Amendment’s protection against unreasonable searches and seizures, as well as the Fifth Amendment’s guarantees of due process.

The Court’s Ruling

In the 6-3 ruling, the Supreme Court granted the government’s application for stay, meaning that Justice Frimpong’s order cannot take effect until an appeal is heard by the Ninth Circuit Court of Appeals, or a petition for writ of certiorari is sought. If no writ of certiorari is sought, the stay will terminate automatically. However, if the Supreme Court grants certiorari to review the Court of Appeals’ decision, the stay should remain in effect until the Supreme Court issues a final ruling and transmits its judgement.  

The stay was addressed in the Court’s shadow docket, where in contrast to the merits docket, the Court rules on procedural matters that typically do not receive extensive briefings or a hearing. Vasquez Perdomo follows the traditional shadow docket pattern in that it received little to no explanation on its ruling. While intended for emergency or administrative issues, in recent years, the Court has increasingly made more consequential decisions on the shadow docket, allowing them to strike down lower court orders while omitting explanation of their decision-making process.

Critics have argued that with little reasoning given to the public, shadow docket rulings of the current conservative Court appear more driven by political ideology rather than consistent judicial principles. These decisions are frequently made at early stages of litigation, granting emergency relief that strikes down lower court rulings, and creates uncertainty amongst lower courts about what stands as binding precedent 

The Vasquez-Perdomo order stands without explanation from the majority Justices, aside from one concurring opinion authored by Justice Brett Kavanaugh. 

In his opinion, Kavanaugh applied the Nken four-factor test for granting a stay: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

Regarding the first factor, Kavanaugh writes that the government has a “fair prospect” of success on the merits because the plaintiffs lack standing required under City of Los Angeles v. Lyons that they’ll be unlawfully stopped again. Additionally, Kavanaugh argues that United States v. Brignoni-Ponce holds plaintiffs constitutionally subject to reasonable-suspicion stops due to the “high number and percentage of illegal immigrants in the Los Angeles area”. 

As to the second factor, Kavanaugh quotes Chief Justice Roberts’ in-chambers opinion from 2012 (Maryland v. King): “[A]ny time [that the Government] is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury”. In such, Kavanaugh argues that the district court’s injunction caused irreparable injury to the government by preventing them from enforcing the Immigration and Nationality Act. 

Kavanaugh argued that balancing the harm of individual parties and institutional harm to the government in this case was “especially difficult and policy-laden”, and would depend on “this Court’s assessment of the likelihood of success of the merits”. Thus, his opinion treated the last two Nken factors as irrelevant in comparison with the first two. 

Kavanaugh framed the plaintiffs’ goal as “avoiding being stopped by law enforcement for questioning”, dismissing this interest as not “especially weighty” because in respect to illegally present individuals, this interest is “ultimately an interest in evading the law”.

The Dissent

Justice Sonia Sotomayor authored a dissent which was joined by Justices Kagan and Jackson. While Justice Kavanaugh grapples with the futility of balancing governmental and individual rights, Sotomayor asserts that balancing these equities is both possible, and a necessary duty of the Court.  

Sotomayor contends that race, ethnicity, language, location, and type of work cannot constitute reasonable suspicion as they apply broadly to many individuals who are lawfully present. She states that such factors are “no more indicative of illegal presence in the country than of legal presence”. 

In response to Kavanaugh’s emphasis on United States v. Brignoni-Ponce, Sotomayor notes that the Court in Brignoni-Ponce explicitly rejected the use of appearance alone as justification for immigration stops. The Court had held that stopping drivers of apparent Mexican ancestry in border areas was unconstitutional, since “[the Government] would cover a large volume of legitimate traffic as well”.

The unanimous ruling in Brignoni-Ponce has long served as a constitutional protection against racial profiling in immigration stops. The ruling rejects the idea that mere appearance warrants reasonable suspicion, and rather enforces the requirement of additional specific factors. Undermining this precedent could fundamentally alter the balance between immigration enforcement and constitutional protections in the future.

Sotomayor also rebuts Kavanaugh’s argument that City of Los Angeles v. Lyons precludes the plaintiffs’ ability to seek injunctive relief. She maintains that the plaintiffs have demonstrated a “real and immediate threat of repeated injury”, since each plaintiff fits the demographic being targeted by the government. Furthermore, both the record and government declarations make clear that the locations where the plaintiffs were initially seized, and plan to return to, are likely to be targeted repeatedly. This situation, she argues, stands in sharp contrast to Lyons, where the Court found the likelihood of recurrent injury unprovable.

What the Constitution Says

As part of the Bill of Rights, the Fourth and Fifth Amendments emerged from the colonial experience and were deliberately designed to protect individual rights from government overreach. Importantly, these constitutional protections apply to all individuals within the United States, regardless of immigration status.

The Fourth Amendment protects people from “unreasonable searches and seizures”, while requiring warrants to only be issued “upon probable cause”. The Fifth Amendment ensures that no person shall be “deprived of life, liberty, or property, without due process of law”. The plaintiffs in Vasquez-Perdomo argue that by unlawfully stopping individuals based on race and carrying out arrests without warrants, probable cause, or due process, the government violates these constitutional rights. 

Although the majority Court fails to deliver an explanation for their ruling, Justice Kavanaugh’s concurrence sheds light on his reasoning. He asserts that in regions with high populations of undocumented immigrants, characteristics such as race, language, location, and mode of employment, can substantiate reasonable suspicion. However, these factors lack specificity, raising concern that millions of innocent people are left subject to unlawful and unconstitutional seizures. While the Court has granted a stay for now, the full constitutional implications of the case remain unresolved and will be addressed when the Court issues its final ruling.

If Kavanaugh’s views reflect those of his majority colleagues, it demonstrates a departure from longstanding established precedent. In United States v. Brignoni-Ponce, the Court explicitly prohibited stopping persons based solely on appearance, and in United States v. Cortez ruled that  a “particularised and objective basis” was required of suspicion.

Although the Fourth Amendment does not enumerate which factors may constitute reasonableness, relying solely on vague factors such as race and language grants the government unlimited authority to seize anyone who looks Latino, speaks Spanish, or appears to work a low wage job, without confirming particularised suspicion of illegal activity.

The Supreme Court’s stay does not constitute a final ruling; however, its willingness to allow the government’s racialised enforcement tactics to proceed signals a shift in constitutional interpretation with potentially far-reaching consequences for groups vulnerable to profiling under vague law enforcement rationales. Should the ruling be upheld, it opens the door to detaining large, profiled groups, within immigration as well as other areas of law enforcement; a dangerous precedent which undermines the liberties of those most vulnerable to discriminatory policing.

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