Race has played an important role in U.S. citizenship and immigration law since the earliest days of the nation’s history. By categorizing people into distinct races, Congress and the courts have periodically decided who can acquire citizenship or be subjected to questioning about their right to live in the United States. In late April, Justice Samuel Alito illustrated race’s continued role in immigration law during oral argument in Mullin v. Doe, a case about the Department of Homeland Security’s authority to terminate Temporary Protected Status for Haitian and Syrian nationals.
While she was still secretary of Homeland Security, Kristi Noem announced last year that citizens of 13 countries, including Haiti and Syria, would lose TPS, a legal authority that allows certain migrants to live and work in the United States for humanitarian reasons. Geoffrey Pipoly, who represents Haitian TPS recipients, argued that the Trump administration’s choice to terminate TPS protections racially discriminated against migrants of color, showing a “bare dislike of Haitians in particular.”
Alito pushed Pipoly to clarify the boundaries of the racial classifications that he argued violate the due process clause of the Constitution. “Do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are … all non-white,” Alito asked. “How about southern Italians,” he added, in a reference to his own heritage. After Pipoly responded by saying that “our concept of these things evolves over time,” Alito added, “[y]ou have a really … broad definition of who’s white and who’s not white.”
Alito’s main point was to express his distaste for racial line-drawing. “I don’t like dividing up the people of the world arbitrarily into three racial groups,” he told Pipoly. But by presenting Pipoly with a series of hypotheticals seemingly intended to highlight the ambiguous boundaries of racial categories, Alito thrust the court into familiar territory in defining race. On multiple occasions, the court has addressed racial categorization’s role in immigration law. In every instance, its decisions categorize people based on race or allow immigration law enforcement officers to do so.
In a pair of cases decided roughly a century ago, the court created the judicial version of the lineup that Alito asked Pipoly to imagine. Takao Ozawa, a longtime resident of the United States, was not eligible for naturalization because, as “a person of the Japanese race,” he was not a “white person,” the court announced in 1922. Starting in 1790, federal law limited citizenship through naturalization to “free white persons,” adding people of African descent in 1870. Ozawa urged the justices to interpret the law’s text to exclude only Black people and Native Americans, as the legislators who voted on it would have. Instead, the court chose to rely on “numerous scientific authorities.” In a unanimous opinion in Ozawa v. United States, Justice George Sutherland wrote that “the words ‘white person’ were meant to indicate only a person of what is popularly known as the Caucasian race.”
Three months later, the court adopted the opposite approach to racial categorization, but with a similar result. Bhagat Singh Thind, who was born in northwestern India, was also not a “white person,” Sutherland again declared for a unanimous court. Having taken the position a year earlier, in Ozawa, that “the phrase ‘white persons’ and the word ‘Caucasian’ are synonymous,” Sutherland turned to the fact that India’s Punjab region, where Thind was born, was “classified by certain scientific authorities as of the Caucasian or Aryan race.”
Had it stayed true to the “scientific” approach used in Ozawa, the court would have concluded that Thind was white. But grouping an Indian alongside people “from the British Isles and Northwestern Europe,” or “immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock,” would astonish “the average well informed white American,” Sutherland explained in United States v. Thind. Instead of surprising white people, the court thus pivoted away from the “scientific” approach it adopted in Ozawa in favor of interpreting “white” according to the “understanding of the common man.” Using this method, it concluded that Thind was not white. He was therefore ineligible for U.S. citizenship.
Congress removed the last racial eligibility requirement from naturalization laws in 1952, but race-based assessments continue to have an important role in enforcing immigration law. In a pair of cases decided approximately 50 years ago, the court developed a legal doctrine for race-based policing of immigration law. In United States v. Brignoni-Ponce, decided in 1975, the court allowed immigration officers to consider a person’s “Mexican appearance” when deciding who to stop for questioning. When deciding who looks Mexican, officers can consider a person’s “mode of dress and haircut,” the court added. One year later, in United States v. Martinez-Fuerte, the court announced that immigration officers could subject a person to in-depth, time-consuming questioning “largely on the basis of apparent Mexican ancestry.” Classifications based on physical characteristics are a hallmark of racial profiling.
The court’s immigration-law racial profiling doctrine remains relevant today. Last summer, a federal district court judge temporarily barred immigration officers from considering a person’s “[a]pparent race or ethnicity” when deciding who to stop and question in California. After the U.S. Court of Appeals for the 9th Circuit declined the government’s request to stay the district court’s order, the Justice Department asked the Supreme Court to intervene. The government’s written request to the court relies heavily on Brignoni-Ponce, arguing that the case permits immigration officers to consider “a person’s appearance,” including “apparent race or ethnicity.”
And in a one paragraph order issued last September in Noem v. Vasquez Perdomo, a majority of the justices agreed with the government’s request to lift the district court’s order prohibiting immigration officers from relying on a person’s race or ethnicity. Although the majority did not provide its reasoning, Justice Brett Kavanaugh explained his position in a 10-page concurring opinion that cited to Brignoni-Ponce nine times. Considering a person’s apparent race or ethnicity (among other factors) when assessing potential violations of immigration law isn’t just legally permissible; it is “common sense,” Kavanaugh explained. In his view, Brignoni-Ponce isn’t limited to Mexicans. Instead, Brignoni-Ponce’s acceptance of “apparent ethnicity” allows officers to stop and question people who look like they “come from Mexico or Central America,” he wrote.
Eight months later, Alito seems to have forgotten what Kavanaugh knows well: the court has long permitted immigration officials to engage in racial profiling. And, every time, the result has hurt the interests of people who the court itself designates as not white. Instead of addressing whether the president’s derogatory remarks about Haitians constitute impermissible racial discrimination, Alito prodded Pipoly to clarify racial boundaries that the court’s own decisions have long treated as malleable and yet discernible.
