a Double Standard on Race to Handicap ICE

A federal judge in Los Angeles has declared ICE’s questioning of suspected illegal aliens unconstitutional. U.S. District Court Judge Maame Ewusi-Mensah Frimpong ruled on July 11 that Immigration and Customs Enforcement agents had been impermissibly using race to decide whom to detain for questioning about immigration status. Yet Frimpong’s rules for litigating in her courtroom are themselves a violation of the principle of color-blindness.

According to the plaintiffs in Pedro Vasquez Perdomo v. Kristi Noem, ICE’s immigration operations in Southern California single out suspects based on race and three additional factors: a Spanish accent or inability to speak English; presence at a location, such as a day laborer pick-up site, known to harbor illegal aliens; and working at a job, such as at a car wash, known to be dominated by illegal aliens. Frimpong ruled that those four factors, alone or in combination with the other three, did not provide ground, known as “reasonable suspicion” in Fourth Amendment jurisprudence, for stopping and questioning a suspect for illegal presence.

ICE had disputed the advocates’ characterization of its stops. Its officers have more particularized suspicion based on their experience and on additional observed facts about the setting and the suspect, ICE argued. Frimpong’s rushed briefing and hearing schedule had not provided the government sufficient time to make its defense, the Justice Department attorneys alleged, to no effect.

Frimpong issued a temporary restraining order (TRO) blocking ICE from using the four factors of race, language, location, and job type in deciding whom to detain for questioning, unless agents have additional grounds for suspicion. The TRO covers the counties of Los Angeles, Riverside, San Bernardino, Orange, Ventura, Santa Barbara, and San Luis Obispo—a huge area containing well over a million illegal aliens. Though Frimpong held that the four banned factors may in theory be used in tandem with other factors, her order in essence shuts down ICE’s ability to question suspects in her district.

The four factors describe the core situation of many illegal alien workplaces. That is not an artifact of the Trump administration’s allegedly biased views; those factors are objective features of the illegal alien subculture, which is now, as a practical matter, virtually off limits to government investigation. The opinion invites a constitutional challenge to any attempted deportation of an illegal alien who fits the profile of a Hispanic Spanish-speaker working at a location known to rely on illegal labor.

On August 1, a panel from the U.S. Court of Appeals for the Ninth Circuit upheld Frimpong’s decision. The panel coyly noted that if ICE is not, as it claims, conducting unconstitutional stops, it should not object to being enjoined from conducting unconstitutional stops—a silly simplification of how litigation and judicial power operate that would apply to every injunction.

Immigrant advocates greeted Frimpong’s order ecstatically, immediately grasping its implications for immigration enforcement. Mark Rosenbaum, for decades a lawyer with the ACLU of Southern California and now with Public Counsel, a public interest firm, called it “the most important decision in the history of the country about limitations on what immigration authorities can do when they carry out operations.”

President Donald Trump’s Deputy Chief of Staff Stephen Miller, by contrast, called the ruling “another act of insurrection against the United States and its sovereign people.”

It remains to be seen whether the White House will appeal the case to the Supreme Court. In the meantime, however, Judge Frimpong’s own relationship to race and government action deserves scrutiny. Frimpong has officially declared her “strong commitment” to fostering “diverse lawyers.” The standing order governing litigation in Frimpong’s courtroom states that she “strongly encourages” litigants to assign to oral argument lawyers “whose identities and/or backgrounds further the diversity of the legal profession.” Frimpong adds that the client ultimately decides who speaks on its behalf. But a litigant who brings a team of lawyers chosen on meritocratic grounds alone will worry if its “non-diverse” lawyers face off against black or Hispanic attorneys. A law practice that wants to avoid any possibility of judicial partiality will favor “intersectional” candidates over white male attorneys for oral argument .

Frimpong is herself likely the beneficiary of racial preferences. She was nominated to the bench by President Joe Biden, who was explicit before and after his election about his intention to appoint nonwhites, especially black females, to the federal judiciary. The Biden White House announced early on that it would not submit Biden’s judicial nominees to the American Bar Association for preclearance, since the ABA did not sufficiently value “diversity.” This claim was absurd; the ABA obsesses about racial proportionality. The preclearance policy amounted to a confession that the White House would be lowering standards beyond even what the ABA could stomach in its own quest for diversity. Seventeen percent of Biden’s judges were black females, a large increase over the estimated 2 percent of American lawyers who are black female. That eightfold disparity would be magnitudes larger if one limited the benchmark to the percentage of black female lawyers who are judicial caliber—a minute subset of any group of lawyers.

Decades ago, a few maverick judges expressed a preference for “diverse” attorneys in large, multidistrict class-action lawsuits. Since 2020, that practice has picked up steam and has gone beyond the tort context. In 2024, America First Legal filed a judicial misconduct complaint against three Illinois district court judges for offering to provide extra oral argument time to female and minority attorneys. Two of the Illinois judges took down their pro-diversity orders in March 2024 in response to the complaint; the third, a Trump appointee, had already done so at the time that the complaint was filed.

Frimpong’s caveat about the choice of attorney ultimately residing with the client is intended to insulate her preference for diverse attorneys from challenge. But her standing order creates at the least the appearance of impropriety. Race and sex are irrelevant to the validity of a client’s case or to the opportunities for prosecuting a client’s case. By contrast, the factors that Frimpong has declared presumptively off limits for deciding whether to question a suspected illegal alien are logically and empirically related to illegal presence in the country. That does not mean that those factors are coterminous with illegal presence: some legal residents will fall into the four categories, and some illegal residents will not. But as a matter of common sense, they are a reasonable component of a decision to stop someone for questioning.

Fourth Amendment jurisprudence long since evolved past the realm of common sense, however, and law enforcement has had to adjust. It may well have to do so here as well, despite a chilling effect on enforcement, which is precisely the point. (After a sharp drop-off in enforcement actions in Southern California following Frimpong’s TRO, ICE arrested 16 illegal aliens at a Home Depot in the Westlake area of Los Angeles on Wednesday, setting off charges of profiling. “There are no sanctuaries from the reach of the federal government,” posted the acting U.S. Attorney, signaling that ICE would not be deterred.)

Scrupulousness about the government’s use of race should apply across the board. Frimpong’s double standard regarding ICE and her own courtroom exemplifies how the elite establishment has treated race up to now. Dislodging that double standard will be a long battle.

Photo by Genaro Molina/Los Angeles Times via Getty Images