Can the government really use race or ethnicity to decide who gets stopped by immigration officers?

In this episode, Rosanna unpacks a recent Supreme Court ruling that’s shaking up immigration enforcement in Los Angeles and beyond. With ICE flush with new funding and the Court siding with law enforcement, she explains what this means for communities, employers, and anyone trying to make sense of the system right now.

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Transcript

Everyone’s talking about U.S. immigration law, but nobody really knows how it works. I’m Rosanna Berardi. I’m the daughter of an immigrant, a former immigration inspector at the border, university professor, and founder and managing partner of Berardi Immigration Law.

I’ve done nothing but U.S. immigration law for over 30 years, and it’s time to stop the misinformation on all sides. I’m going to tell you how it all works, the inside story. This is Immigration Weekly with Rosanna Berardi.

Supreme Court Emergency Docket

Hello, hello, hello, and welcome back to the Immigration Weekly podcast with your host, Rosanna Berardi. Holy man, you guys, this stuff is coming out at rapid speed. I did a webinar today, and yesterday I spent a half hour or so preparing, wrote my outline, some bullet points, felt good about it, and lo and behold, the Supreme Court made a decision in the afternoon that made me change my entire thing, so it’s crazy.

We’ve seen a lot of activity from the U.S. Supreme Court on immigration issues, and fun fact, the court’s new session doesn’t officially start until October 1st of 2025, but like anything in life, they have an emergency docket, meaning when there is a burning constitutional question, lawyers can file with the Supreme Court and a decision can be made, and that’s just what happened yesterday on September 8th. So what are we talking about?

ICE Lawsuit and TRO

Well, we’re talking about Immigration and Customs Enforcement, ICE, remember them? Yes, the individuals that are, their sole purpose is to enforce the U.S. immigration and customs law. Not surprising, they’ve been doing that forever.

They are going after the lawbreakers, arresting them, detaining them, yada, yada, yada. They’re known as ICE in my industry, and the issue with ICE, they just got a billion, BBB, billion dollars of funding from Congress via the one big beautiful bill that was passed on July 4th of this year. They’ve got a lot of money right now, and they’re going gangbusters, no pun intended, on identifying illegal immigrants in the U.S. Now there’s an estimated, I’ve read everything, from 15 to 20 million illegals in the United States. That’s a lot of people. So today we’re going to look at the Supreme Court decision that’s really reshaping immigration law enforcement. So where were we?

Where did this come from? So ICE has been very, very aggressive this year. And in July of 2025, a lawsuit was filed.

Some individuals said, you know what? They’re being way too aggressive. They’re picking up people based on their race, their language, their ethnicity.

Supreme Court Ruling

So a district court judge issued what we call a temporary restraining order, a TRO. That’s a fancy way of saying stop. Stop what you’re doing.

Stop your behavior. This came out of the Central District of California, typically a liberal jurisdiction. And don’t get me wrong, lawyers know where to file these cases for success.

Not hard to find a plaintiff for this case. So the result of that decision from July of 2025 was saying, listen, ICE, you can do your law enforcement stuff, but you can’t pick up people based on four factors. Race or ethnicity, that’s one.

Speaking Spanish or having an accent, that’s two. Presence at a specific location like a farm or a bus stop, that’s three. Or the type of work performed, four.

Think agriculture, hotel cleaners, things of that nature. So what led to this lawsuit? Well, as you can imagine, the summer was very busy.

There was a massive ICE operation across the Los Angeles area. They arrested nearly 2,800 individuals in 30 days. That’s a lot of people.

Majority vs. Dissent

Now, the plaintiffs, the people that brought this lawsuit in July said, no, no, no, they are systematically targeting individuals based on their appearance and demographics. Also, in true government form, which happens, hey, mistakes happen, right? Erasers on pencils.

They were picking up US citizens. Not a good look for the government, but it happens. Happens everywhere.

Mistakes are made everywhere. So what happened? Well, the Trump administration said, district court, you’re famously liberal.

And district court, we have a job to do in the name of law enforcement. So we’re going to ask the Supreme Court, the highest court in the land, to take your TRO and throw it out the window. Now, as I said earlier, the Supreme Court is on break right now.

Their new session doesn’t start until October 1, but they do have an emergency docket. So when they decide these emergency issues, there’s not a full lengthy opinion issued. Usually Supreme Court decisions can be 20, 30, 40 pages where we hear from the majority.

We hear concurrences. We hear from the dissenting justices. None of that.

None of that. Just a short answer because they’re not in session. So what did they say?

Implications for Communities

Listen to the headlines on this one. The government can use race or ethnicity to profile people and pick them up. Well, what really happened?

So as expected, along ideological lines, the court ruled six to three. And what did they do? They said, okay, TRO from the lower court, out the window.

ICE, you can resume your operations in Los Angeles. There wasn’t really a very broad majority opinion. There was only a concurrence from Justice Kavanaugh and a dissent from Justice Sotomayor.

And I think it’s really important to hear how they laid this out. So speaking for the majority, it must have been Justice Kavanaugh’s turn to look at the emergency docket. He said, and I quote, to be clear, apparent ethnicity alone cannot furnish reasonable suspicion.

Under this court’s case law regarding immigration stops, however, it can be a relevant factor when considered along with other salient factors. The government estimates at least 15 million people are in the U.S. illegally, about 10% of the people in L.A. are illegal, meaning about 2 million illegal immigrants out of a population of 20 million. He continues to say those circumstances taken together can constitute at least a reasonable suspicion of a legal presence in the U.S. He’s basically saying, look, there’s a lot of illegals. We have ICE. We have this big bloated government agency whose job is to remove them. And in the name of law enforcement, race, ethnicity can be used as a factor when you’re considering if you’re going to approach an individual and ask him or her about their immigration status.

Practical Advice and Closing

Okay. Is this a full opinion? No.

These are just the court looked at it quickly, made a decision. What did the dissent say? Well, you can imagine the dissent was scathing led by Justice Sotomayor’s dissent.

And she said, quote, we should not have to live in a country where the government can seize anyone that looks Latino, speak Spanish and appears to work a low wage job. The government and now the concurrence has all but declared that all Latinos, U.S. citizens or not who work low wage jobs are fair game to be seized at any time, taken away from work and held until proof of their legal status. Because this unconscionably irreconcilable with our nation’s constitutional guarantees, I dissent.

Whew. Messy. We’ve got the tension.

This comes up all the time about the power of the government versus constitutional rights, constantly in tension, these two things. So what does the constitution say? Well, the fourth amendment says reasonable search and seizure.

There’s got to be a reasonable suspicion. Can’t be based on one factor like race, ethnicity or broad generalizations. Now, Justice Kavanaugh said, well, it can’t be one factor, but multiple factors can create a reasonable suspicion.

And when ICE is going to approach somebody in a raid, they need to use the totality of circumstances. And again, he’s like, there’s two million people in L.A. Something’s got to give here. So I don’t know.

Where is this one going to go? Well, this was just an emergency docket, which means right now ICE is free to do what they will in Los Angeles. Will there be another lawsuit that gives the court an opportunity to review this again and make a more thorough decision?

Possibly. Possibly. So for ICE right now, they can resume their operations.

They can use multiple factors simultaneously. And ethnicity is one of those factors. This is their operation at large.

This is what they are doing. And they still need to have reasonable suspicion under the and they cannot use excessive force. So what does this mean for communities?

If you live in a community where there’s a lot of illegal immigrants, you know, you’ve got to be careful in terms of where you’re going and you always have to be able to prove your immigration status. That applies to me, a U.S. citizen, green card holder, H-1B, L-1. Have your immigration documents at the ready.

I can get pulled over today and an immigration, I’m sorry, a New York State trooper can say, Ms. Brody, what is your citizenship? Why? Because he or she has been deputized by the Immigration Service to do that.

Make it easy. Make it easy and simple for the officers. If you are here unlawfully, I can’t tell you what to do and circumvent the law, but know that the government is going very aggressively.

They’re all about enforcement right now. They’re all about cleaning up. This one’s a hot potato issue.

We’re going to see this in other metropolitan areas. Chicago is next on the list. Government is all about enforcement in workplaces, in community enforcement.

They just did a big raid at Hyundai, got 600 people, a majority of them from South Korea. There’s definitely going to be litigation on this one, but today, what’s going to happen? Today, ICE can go forward with their operations.

Now, do we have the midterm elections coming up? Maybe. Will something happen in Congress?

Maybe. Probably not. But this opinion, if anything, tells us that the court, the majority of the court, is sympathetic to law enforcement activity.

We’ll see what happens going forward. It really, really contributes to a significant shift in immigration enforcement. There’s the Constitution, and there are law enforcement priorities.

Right now, the court is saying, okay, if we can do a totality of circumstances, the constitutional burden is met. Lawyers are going to be duking this one out for a long time, but for today, ICE has the power to continue the raids. Now, as I said, individuals, always make sure you have your immigration status on you.

Employers, make sure your I-9s are up to date. Make sure you know who’s working for you. This is not the time to monkey around with the U.S. immigration law. It never was, but right now, extra attention is being paid. Be careful of where you are, and always make the government’s job easy. As a citizen, a non-citizen, green card holder, L-1, HOB, the government’s job, you need to make it easy and say, here’s my passport, or here’s my passport with my I-94 card and my I-797 approval notice.

Is that what we’re turning into in a country? Maybe, but for right now, that’s the best practice. Be sure to follow us.

This one isn’t going anywhere. Lots going on in the immigration world. If you feel like you’re so smart now because of this podcast, tell a friend, hey, the holidays are coming up.

It’s September. It’s practically Christmas. Tell a friend, subscribe, leave us a review.

I love informing the public about immigration, and my goal is to educate you. My goal is not to be political. It’s to educate you on what’s going on, and boy, is there a lot.

Until the next time, have a great day. This was Immigration Weekly with Rosanna Berardi. Thanks for joining.

Be sure to connect with me, Rosanna Berardi, on LinkedIn, or go to our law firm at berardiimmigrationlaw.com. If you don’t want to miss the latest and greatest, be sure to subscribe to the podcast and share this with your friends.

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