ICE and Racial Profiling: Legal and Constitutional Implications

By  Ayanna Celiz

The constitutional limits on immigration enforcement have always sat in an uneasy tension with the federal government’s broad authority over immigration. That tension sharpened dramatically in 2025 after the Supreme Court’s decision to stay a lower-court injunction in Vasquez Perdomo v. Noem. In practical effect, the stay allowed Immigration and Customs Enforcement (ICE) to continue operations that relied heavily on traits closely tied to race and ethnicity, appearance, language, location, and occupation as the basis for stops. For many constitutional scholars and civil-rights advocates, the ruling suggested a step backward into an era where racial profiling was not an aberration but an accepted feature of immigration policing. This essay argues that ICE’s reliance on racialized suspicion undermines longstanding Fourth and Fourteenth Amendment principles, threatens the integrity of constitutional doctrine, and risks inflicting profound harm on immigrant communities and U.S. citizens alike.

For decades, Fourth Amendment doctrine has insisted on individualized suspicion as a bedrock requirement of any investigative stop. The Supreme Court’s decision in United States v. Brignoni-Ponce remains the clearest articulation of this principle in the immigration context. In that case, the Court held that Border Patrol agents could not stop a vehicle “solely because the occupants appeared to be of Mexican ancestry.”¹ Even though immigration enforcement often occurs near the border or in “interior” settings where the government historically claims expansive authority, the Court was unambiguous: appearance linked to ethnicity, without more, is not a constitutionally sufficient justification for a detention.

The Equal Protection Clause reinforces this principle. Although immigration law frequently tests the boundaries of equal protection, particularly because noncitizens do not always receive identical constitutional protections, the Supreme Court has consistently rejected racially discriminatory enforcement practices. Even when a statute is neutral on its face, it may still violate equal protection if enforced in a way that targets a discrete racial group without legitimate justification. In the immigration context, where Latino communities have historically borne the brunt of enforcement, the danger of discriminatory application is especially acute. The Court has noted, in other settings, that selective enforcement based on race offends the “basic equal protection principle that the Constitution protects individuals, not groups.”

Yet ICE’s recent operational tactics illustrate how easily constitutional lines can blur. Over the past several years, watchdog organizations including the ACLU and the American Immigration Council have documented ICE’s increasing use of deceptive or covert tactics, such as impersonating local police officers, posing as construction workers, or conducting pretextual “compliance checks” without warrants. Reports show that individuals are frequently approached because they speak Spanish, appear Latino, work in certain labor-intensive sectors, or are found at locations stereotypically associated with undocumented immigrants. These patterns do not rest on individualized suspicion; they rest on statistical generalizations and stereotypes.

The Vasquez Perdomo v. Noem litigation brought these issues to national prominence. In July 2025, a federal district court issued temporary restraining orders barring ICE from relying primarily on race, language, location, and type of work to justify stops. The order also required agents to identify themselves and to provide detainees with access to counsel, basic safeguards that aligned with ordinary due-process norms. However, the Supreme Court stayed the injunction in September 2025. The Court issued no majority opinion, but Justice Kavanaugh’s concurrence suggested that such traits could legitimately be considered as part of a “totality of the circumstances” analysis.

The stay is a quiet but deeply consequential shift. It reintroduces the idea that race and its proxies, accent, skin tone, clothing, and neighborhood, may once again play a role in establishing reasonable suspicion. This is difficult to square with Brignoni-Ponce, which rejected those same indicators as constitutionally insufficient. More troubling still, the ruling came through the Court’s “shadow docket,” without full briefing or argument. As scholars have warned, shadow-docket immigration decisions can reshape doctrine without the transparency and deliberation that usually accompany constitutional change.

The doctrinal problems are only part of the story. The real-world consequences are immediate and far-reaching. For one, the ruling increases the likelihood that U.S. citizens of Latino descent will be questioned or detained based solely on appearance or language. Studies show that naturalized citizens and long-settled residents, particularly Latinos, are routinely misidentified in ICE operations. The normalization of racialized suspicion makes these misidentifications more likely, not less.

The decision also threatens to erode community trust in law enforcement. When residents cannot distinguish between federal agents and local police or when ICE agents wear plain clothes and provide no clear identification, immigrant communities become understandably reluctant to report crimes or cooperate with investigations. This is not a speculative concern; public-safety research consistently shows that cooperation decreases when residents fear immigration consequences from even minor interactions with government authorities.

Equally troubling are the due-process implications of ICE’s methods. Reports of agents using ruses to enter homes or detain individuals raise serious concerns about consent, voluntariness, and the integrity of the warrant process. The Supreme Court has long emphasized that consent searches require clear, voluntary agreement, not acquiescence to misleading authority. When ICE agents deliberately obscure their identity, the possibility of meaningful consent evaporates.

Some scholars and policymakers have called for legislative safeguards. Congress could enact federal standards banning the use of race, ethnicity, or language as factors in immigration stops, standards that mirror past proposals such as the End Racial Profiling Act. Congress could also require ICE to collect and publish detailed stop data, allowing the public to evaluate whether certain communities are disproportionately targeted. Others advocate revisiting the qualified-immunity doctrine to ensure that individuals wrongfully detained by ICE have meaningful access to judicial remedies.

The constitutional stakes of the Court’s 2025 intervention are significant. By allowing ICE to rely on racialized suspicion, the Court risks weakening both the individualized suspicion requirement and equal-protection guarantees. The Fourth Amendment becomes more malleable, and the Equal Protection Clause less protective, when appearance and language are treated as legitimate indicators for law enforcement. If the current trajectory continues, the country may witness an immigration enforcement regime increasingly untethered from the principles the Constitution was designed to protect.

Ultimately, Vasquez Perdomo is a reminder that constitutional rights can contract quietly, without sweeping doctrinal declarations or landmark rulings. A single stay can shift power toward enforcement agencies and away from the individuals the Constitution was written to protect. Yet, properly interpreted, the Constitution still offers robust tools to restrain racialized enforcement. Preserving those tools will require vigilance from courts, legislators, practitioners, and the communities most affected. At stake is not only the integrity of immigration enforcement, but the vitality of the Fourth and Fourteenth Amendments themselves.

Citations

1. United States v. Brignoni-Ponce, 422 U.S. 873, 885–87 (1975).

2. See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886).

3. Whren v. United States, 517 U.S. 806, 813 (1996).

4. ACLU, This Deceptive ICE Tactic Violates the Fourth Amendment (2020).

5. American Immigration Council, The Supreme Court’s Decision and Racial Profiling in Immigration Raids (2024).

6. Temporary Restraining Orders, Vasquez Perdomo v. Noem, No. 2:25-cv-5311 (C.D. Cal. July 2025).

7. Order Granting Stay, Noem v. Vasquez Perdomo, No. 25A169 (U.S. Sept. 8, 2025).

8. Id. (Kavanaugh, J., concurring).

9. See Stephen Vladeck, The Shadow Docket (2023).

10. Brookings Institution, Racial Profiling by ICE and Effects on Latino Citizens (2023).

11. Univ. of Cincinnati Law Rev., Masked and Unidentifiable: ICE Tactics and Public Safety (2025).

12. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

ICE and Racial Profiling: Legal and Constitutional Implications