Selective Fidelity to the Constitution: Noem v. Vasquez Perdomo

Caris Gray

Edited by Jordan Perlman, Harper Whittemore, Mac Kang, and Sahith Mocharla

During the first nine months of 2025, ICE deported hundreds of thousands of immigrants pursuant to the Trump Administration’s immigration policy [1]. California alone faced thousands of deportations with heavily targeted cities like Los Angeles having teams of masked ICE officers frequently seizing individuals without first asking a single question [2]. In response to the chaos, five individual plaintiffs and three membership associations alleged that officers were detaining individuals without reasonable suspicion that the individuals targeted were violating immigration law [3]. In Noem v. Vasquez Perdomo (2025), The Central District of California concluded that these raids reflected a pattern of government-facilitated conduct that likely violated the Fourth Amendment. The district court granted a preliminary injunction on the basis that the plaintiffs had sufficient Article III standing—a personal stake in the granting of a stay—to seek prospective relief [4]. The court further ordered that these, and other, ICE officers could not legally base detentive stops on factors such as apparent race or ethnicity, speaking Spanish or English with an accent, presence in a particular location, or an individual’s type of work. 

On September 8th, the Supreme Court overturned the federal district court’s decision in Noem to instead grant a stay, pending case appeal. This decision effectively broadens the scope of permissible ICE enforcement actions, allowing for the continued blatant discrimination of Latinos and other people of color nationwide by such ICE officers, while providing no guardrails against abuse and misconduct in the meantime.

As the decision was issued on the Court’s shadow docket, where they rule on emergency measures such as stays (amongst other things), the Court provided no majority opinion explaining its reasoning––a measure crucial for future cases in explaining the Court’s reasoning and establishing further case law; in granting a stay in Noem the only justification appears in Justice Brett Kavanaugh’s concurrence. In order to obtain a stay from the Court, the government must demonstrate two critical factors: first, that if the district court’s decision was affirmed on appeal, the Supreme Court would likely grant certiorari and reverse; and second, that there is a likelihood that the government will suffer irreparable harm if a stay were not granted [5]. Kavanaugh asserts that the government made a sufficient case for both requirements. In regards to the prospect of certiorari, he states that “given the significance of the issue to the Government’s immigration enforcement efforts,” the Court would likely agree to hear the case [6]. He further argues that the plaintiffs lack Article III standing to seek such broad injunctive relief, pulling from the precedent set by Los Angeles v. Lyons (1983) which held that future injunctive relief is not granted merely because a plaintiff experienced past harm and fear its recurrence—rather, that there is a real threat of repeated injury [7] [8]. According to Kavanaugh, the plaintiffs in Noem, like in Lyons, have no good basis to believe that law enforcement will unlawfully stop them again in the future based on the four factors, and thereby lack Article III standing [9].

A closer examination of Lyons, however, exposes the flaws in Kavanaugh’s reasoning. In 1976, Adolph Lyons was pulled over by two Los Angeles police officers because one of his taillights was out [10]. After ordering Lyons out of the vehicle and instructing him to place his hands on his head, the officers conducted a patdown. Upon Lyons lowering his arms, the police forcibly struck his hands—still holding his keys—against the back of his head. When Lyons protested of the pain, one of the officers choked him until he blacked out [11]. Lyons later awoke face down on the ground, gasping and spitting up blood and dirt. The officers then gave him a citation for the taillight and released him. A few months later, Lyons sued the officers and the City of Los Angeles for violations of the Fourth, Eight, and Fourteenth Amendments, seeking monetary damages as well as injunctive relief [12]. While the lower courts initially granted an injunction against the use of such chokeholds, the Supreme Court ultimately granted certiorari. The Court argued that Lyons lacked Article III standing as he could not prove that he was at risk of being placed in the chokehold again [13]. 

Since then, scholars and legal analysts have criticized the difficulties of proving an imminent risk of repeated injury, even moreso because officers often ‘fail’ to maintain comprehensive records documenting their misconduct [14]. Lyons sets a, potentially arduous burden, standard that permits “prospective equitable relief” as long as an individual can establish with “substantial certainty” that he will be injured, or injured again, in the future [15]. Both Noem and Kavanaugh use the precedent set by Lyons to argue that the plaintiffs in Noem do not have such certainty to warrant an injunction.

However, as the dissent, reasonably, points out, the plaintiffs in Noem are in a significantly different situation than the plaintiff in Lyons, and therefore satisfy Article III’s requirements for injunctive relief [16]. For one, each individual plaintiff in Noem has already been seized based on one—or a combination—of the four mentioned factors. Unlike in Lyons, the plaintiffs are also almost guaranteed to return to the locations where they were seized because those locations were either their workplaces or routes to work. As the district court observed, given the nature and scope of the government’s immigration enforcement efforts, it would be “a fantasy to expect that law enforcement could and would inquire whether a given individual was among the named … [p]laintiffs … before proceeding with a seizure” [17]. Moreover, unlike most cases of officer misconduct where evidentiary documentation is difficult to obtain, the Court record in Noem reflects the government’s confirmation of a systematic operation to “target broad segments of the population based on race and ethnicity, language, location, and occupation,” as well as its declaration to continue to repeatedly target the given location in the future [18]. In light of this, it is abundantly clear—both in word and in action—that ICE will likely arrest the plaintiffs again on the merits of the four impermissible factors.

Kavanaugh further asserts that, even if the plaintiffs possess Article III standing, the government has a “fair prospect” of succeeding on the Fourth Amendment issue [19]. In order to justify stopping an individual for brief questioning about their immigration status, the government must have “reasonable suspicion” that the individual is illegally present in the U.S. [20]. Kavanaugh makes a point to note here that reasonable suspicion—which must constitute specific and articulable facts—is a lesser requirement than probable cause and the preponderance of the evidence standard [21] [22]. He claims that several contextual circumstances affirm reasonable suspicion including the prospective high total and percentage of illegal immigrants in the Los Angeles area; the tendency of illegal immigrants to gather in certain locations; the concentration of illegal immigrants in certain kinds of jobs (such as day labor, landscaping, agriculture, and construction); and the fact that many illegal immigrants “come from Mexico or Central America” and may not speak much English [23]. Kavanaugh suggests that officers may rely on these characteristics, alone or in combination, to justify stops based on the four challenged factors. However, he clarifies that ‘apparent’ ethnicity alone cannot constitute reasonable suspicion, but rather can be a “relevant factor” when considered along with other “salient” factors [24]. Kavanaugh also notes that reasonable suspicion only provides grounds for a brief stop and inquiry, and the stop can only lead to further immigration proceedings if unlawful presence is confirmed [25].

The principle case that Kavanaugh invokes is United States v. Brignoni-Ponce (1975), which is the exact precedent that Justice Sonia Sotomayor references in the dissent. In Brignoni-Ponce, two southern California border patrol agents stopped a car near the Mexican border to question the passengers about their immigration status solely because the occupants appeared to be of Mexican descent [26]. The Court held that Mexican ancestry or apparent ethnicity alone does not support the necessary “founded suspicion” to justify stopping a vehicle for questioning, but it may however be considered as one factor among others [27] [28]. The Court argued that large numbers of legal residents share physical characteristics associated with Mexican ethnicity. Therefore, while the likelihood that any given person of Mexican descent is undocumented is “high enough to make Mexican appearance a relevant factor, … standing alone, it does not justify stopping all Mexican-Americans to ask if they are aliens” [29]. Brignoni-Ponce, also lists other factors that Border Patrol officers could rely on in forming a reasonable suspicion in traffic stops: 

I. Characteristics of the area where the stop takes place

II. Proximity of that area to the border

III. Recent experience with immigrants in that place [30].

However, the decision in Brignoni-Ponce is superseded by two later cases: Brown v. Texas (1979) and Reid v. Georgia (1980). In Brown, two police officers stopped and questioned a man who was in an alleyway that was known for high incidences of drug trafficking. The Court held that the officers lacked any reasonable suspicion to believe that the appellant was engaged, or had engaged, in criminal conduct on the basis of his presence at a particular location—particularly because his activity was “no different from the activity of other pedestrians in that neighborhood” [31]. Similarly, in Reid, the Court held that a set of facts cannot constitute reasonable suspicion if it “describe[s] a very large category of presumably innocent” people [32]. Allowing such generalized characteristics to justify stops would then subject large groups of people to virtually random seizures, in violation of the Fourth Amendment, which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” [33] [34].

Taken together, Brown and Reid effectively overturn the precedent set forth in Brignoni-Prince, because while the likelihood that any Mexican-appearing person is in the U.S. illegally may be high (enough, at least, to make appearance a relevant factor as stated in Brignoni-Prince), so is the likelihood that any given person in the Brown alleyway is a drug dealer—but obviously this cannot constitute reasonable suspicion in and of itself. If the Court were to grant such a proposition would be to permit what Reid warned against; large portions of the population subject to seizures based on their location or physical characteristics without any other basis for reasonable suspicion [35].

The majority in Noem may argue that even if reasonable suspicion cannot be the product of one of these factors, the combination of two or more of the characteristics could be enough to constitute it. However, if the Court were to grant that any combination of the four factors could equate to reasonable suspicion—therefore justifying any stops, searches, and seizures with disparate rationale—then all individuals who happen to fit the government’s targeted demographic profile, as a population (fitting the description, so to speak), would be subject to at will detention. Such a rule would effectively bar many people the protection of the Fourth Amendment.

While the searches being conducted in Los Angeles and around the country do not require warrants on the basis of probable cause, the accused are still subject to the Fourth Amendment’s protections. As decided in Brignoni-Ponce, whenever an officer accosts an individual and restrains his freedom to walk away, they have effectively seized that person, and the Fourth Amendment requires that seizure to be reasonable [36]. Even this Brignoni-Ponce definition applies stronger constraints on officers’ actions compared to the definition outlined in Noem; the Court has elsewhere clarified that a seizure occurs when officers, through means of physical force or show of authority, in some way restrain the liberty of a citizen [37]. In turn, reasonableness requires more than an “inchoate” and unparticularized suspicion or “hunch,” as found in Illinois v. Wardlow (2000) [38]. Nor may statistics substitute for the individualized suspicion that the Fourth Amendment requires as decided in Kansas v. Glover (2019) [39].These restrictions are intended to impose limits on officer powers in order to prevent officials from arbitrarily interfering with the privacy and personal security of individuals [40]. 

As the dissent in Noem rightfully points out, those protections may no longer exist for people who simply look, speak, or work in certain ways, putting large groups of people at risk of Fourth Amendment failures [41]. As of 2024, there were an estimated 68 million Latinos in the U.S., approximately only 30.69% of whom spoke only English; meaning that over 60% of the Latino population speaks Spanish or is bilingual to some degree [42] [43]. Under just one combination of the Court’s factors—Hispanic appearance and English proficiency—over 38 million individuals could be subject to and left unprotected from random discriminatory searches. Neither of these attributes are indicative of illegality, as the district court held, nor is location or type of work.

If the Court began to apply the same foundational logic to other contexts, its incoherence would become even more apparent. Under this framework, the government could cross-apply immigration justification to other practices such as in racial discrimination in hiring or education access, so long as other factors were considered in their decision. Or, on the basis of flawed aggregate population assumptions, it could say that as Black individuals are statistically more likely to be drug dealers and frequent alleyways, any Black individual in an alleyway may be stopped for questioning. The line of logic is identical, but (should be) clearly unreasonable and prejudicial. The Court’s approach provides no guidelines or safeguards against such extractions. All persons within the U.S. are protected by the Fourteenth Amendment, regardless of their immigration status [44]. As the amendment states, no government shall make or enforce any law that denies the people within its jurisdiction the equal protection of the laws—which is exactly what has been done in this case. The concurrence fails to provide any reason as to why racial and ethnic discrimination is generally unconstitutional, and yet also may be used as reasonable under the Fourth Amendment [45] [46].

A secondary issue related to the plaintiffs’ Article III standing in Noem was whether or not the government would suffer “irreparable harm” if a stay were not appointed. Justice Kavanaugh concludes that given the significance of the issue to the government’s immigration enforcement efforts, an injunction posed a significant threat to the government’s immigration enforcement efforts [47]. His statement relied on language taken from Maryland v. King (2012), which stated that “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury” [48]. This was later quoted in Trump v. CASA (2025), which ruled that universal injunctions granted by federal courts exceed their congressional power [49]. Although this was used as a core line of Kavanaugh’s argument, Kristi Noem—the appellant and then-Secretary of Homeland Security—is, in actuality, not a representative of the people, and is not subject to the restrictions found in King [50].

Moreover, irreparable injury definitionally requires proving that it would be impossible to repair or rectify the damages done as the government waits for an appeal on the merits of the case. Granting the stay serves to do two things: protect Latinos from unfounded, discriminatory stops and pause the government’s enforcement efforts on that basis while waiting for a decision. The government is still able to continue with their enforcement efforts. Even if they were not, these damages are reparable—the government could simply increase enforcement efforts in Los Angeles after a final decision is reached. Noem further argued that the injunction chilled enforcement efforts by deterring officers from stopping suspects “even when they [had] reasonable suspicion on other grounds” [51]. However, as the dissent argues, that the stay did not preclude lawful enforcement of immigration laws, merely that officers must consider additional facts beyond the four prohibited factors [52]. The dissent also argues that the government only cited hypothetical enforcement actions that only “might” be chilled by the injunction [53]. As Kavanaugh grants this argument as satisfactory, his simultaneous denial of the plaintiffs’ Article III standing seems quite contradictory.

The list of legal concerns grows after considering that the government bears the burden of proving that it has reasonable suspicion to stop someone [54]. Within Kavanaugh’s concurrence, he states:

“Moreover, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States” [55].

This narrative, as pointed out by the dissent, shifts the burden onto an entire class of citizens to carry enough documentation on their persons to justify deserving to walk freely [56]. As a result of Noem, 38 million individuals now at increased risk of unlawful seizure must carry with them sufficient documentation to prove their right to walk free. Even when documentation is produced, it may still be deemed insufficient. Over 170 U.S. citizens have been detained by immigration agents as of October, 2025 [57]. Some of these citizens have not only been unlawfully detained, but have also been beaten, choked, and shot—and their citizenship status did not prevent this, contrary to what Kavanaugh believes [58]. It becomes clear, then, that Noem sets a precedent of act first, justify later which is being exploited by immigration enforcement officers.

Kavanaugh was provided with three examples of this before he released his decision. In one instance, an agent questioned an individual, Jorge Viramontes, and asked for his ID. Despite Viramontes supplying his California driver’s license, the agent regarded it as insufficient, grabbed his arm, and took him to a warehouse for further questioning [59] [60]. On another occasion, masked agents got out of their cars at a bus stop in Pasadena, and ran at three Latino men who were waiting to be picked up for work [61]. In Glendale, AZ, nearly a dozen masked agents with guns jumped out of cars and began chasing and tackling Latino day laborers, without identifying themselves, asking questions, or saying anything at all [62]. Even though such conduct would ultimately be deemed unlawful, even under Kavanaugh’s reasoning, it is undeniable that by granting the government a stay, the Court has exacerbated these harms by permitting enforcement policies that indisputably facilitate mass racial profiling of Latinos across the U.S. The Due Process clause of the Constitution specifically states that all people should not be deprived of life, liberty, or property, without due process of the law. This terminology directly contrasts the use of citizens in other areas of the Constitution. It is for this reason that it is abundantly clear that all individuals within the U.S.—legal or not—are protected and deserve due process, equal protection, and the freedom from unreasonable searches and seizures.

As articulated by Justice Sotomayor in dissent of Noem, “after today, that [equal protection and treatment] may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job” [63]. Despite the numerous facts, precedents, and arguments that directly contradict the basis of the Court’s decision in Noem, three things stand out. 

I. First, the plaintiffs have Article III standing; It is clearly shown that ICE agents in Los Angeles have a documented past of pulling the plaintiffs over on the basis of the four aforementioned factors, and the officers will almost certainly target the specific area the plaintiffs were arrested in and are almost guaranteed to return to [60]. 

II. Second, the harm suffered by the government by granting the stay is repairable. The enforcement efforts on the basis of the four factors are also not necessary or critical to be performed now as opposed to a few months from now when a final decision is released by the courts. 

III. Third, the government’s actions infringe upon the Fourth and Fourteenth Amendments. The racial prejudice perpetuated against those of Mexican ancestry violates the equal protection and due process clauses which guarantee freedom from unreasonable searches and seizures and equal protection under the law. 

Both the government and the Court have decided, in effect, that all Latinos—regardless of immigration status, who work certain jobs, speak a certain way, or happen to be in a certain place—may be this seized at any time, taken away, and held until they provide proof of their legal status to the immigration agents’ satisfaction [64].

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[1] Mathew Miranda, ICE deportations in California surged in the thousands as 2025 went on, THE SACRAMENTO BEE (Jan. 12, 2026), https://www.sacbee.com/news/california/article314213552.html

[2] Noem v. Vasquez Perdomo, 606 U. S. (2025).

[3] Vasquez Perdomo et al. v. Noem et al. (2:25-cv-05605, C.D. Cal.)

[4] See [2].

[5] Nken v. Holder, 556 U.S. 418 (2009).

[6] See [2].

[7] See [2].

[8] City of Los Angeles v. Lyons, 461 U.S. 95 (1983).

[9] See [2].

[10] Peter C. Douglas, City of Los Angeles v. Lyons: How Supreme Court Jurisprudence of the Past Puts a Chokehold on Constitutional Rights in the Present, 17 Nw. J. L. & Soc. Pol'y 1 (2021).

[11] See [10].

[12] See [8].

[13] See [8].

[14] Mike Krings, Plaintiffs left 'standing in the dark' when seeking redress for police misconduct, researcher finds, UNIVERSITY OF KANSAS SCHOOL OF LAW (June 24, 2025), https://law.ku.edu/news/article/plaintiffs-left-standing-in-the-dark-when-seeking-redress-for-police-misconduct-researcher-finds.

[15] See [8].

[16] See [2].

[17] See [2].

[18] See [2].

[19] See [2].

[20] United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

[21] See [2].

[22] Terry v. Ohio, 392 U.S. 1 (1968).

[23] See [2].

[24] See [2].

[25] See [2].

[26] See [20].

[27] See [20].

[28] Kristin Connor, Updating Brignoni-Ponce: A Critical Analysis of Race-Based Immigration Enforcement, 11 N.Y.U. J. Legis. & Pub. Pol'y. 3 (2008).

[29] See [20].

[30] See [28].

[31] Brown v. Texas, 443 U.S. 47 (1979).

[32] Reid v. Georgia, 448 U.S. 438 (1980).

[33] See [32].

[34] U.S. Const. amend. IV

[35] See [32].

[36] See [20].

[37] See [22].

[38] Illinois v. Wardlow, 528 U.S. 119 (2000).

[39] Kansas v. Glover, 589 U.S. 376 (2020).

[40] United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

[41] See [2].

[42] Gabriel Pina, Key Facts about Latinos, PEW RESEARCH CENTER (Oct. 22, 2025), https://www.pewresearch.org/short-reads/2025/10/22/key-facts-about-us-latinos/

[43] Statista Research Department, Distribution of English language proficiency among Hispanics in the United States as of 2024, STATISTA (Nov. 28, 2025), https://www.statista.com/statistics/639745/us-hispanic-english-proficiency/

[44] EMP Law, What Rights Do Undocumented Immigrants Have in the US?, EMP LAW FIRM (Jan. 26. 2026), https://emplawfirm.com/what-rights-do-undocumented-immigrants-have-in-the-us/.

[45] U.S. Const. amend. XIV, § 1.

[46] Ilya Somin, Supreme Court Issues Dubious “Shadow Docket” Ruling Staying Injunction Against Racial Profiling in Immigration Enforcement, REASON (Sept. 8, 2025), https://reason.com/volokh/2025/09/08/supreme-court-issues-dubious-shadow-docket-ruling-staying-injunction-against-racial-profiling-in-immigration-enforcement/

[47] See [2].

[48] Maryland v. King, 569 U.S. 435 (2013).

[49] Trump v. CASA, Inc., 606 U.S. ___ (2025).

[50] Department of Homeland Security, THE UNITED STATES GOVERNMENT MANUAL, https://www.usgovernmentmanual.gov/Agency?EntityId=beCHeRZ5Vf8=&ParentEId=+klubNxgV0o=&EType=jY3M4CTKVHY=# (last visited Mar. 6, 2026).

[51] See [2]

[52] See [2].

[53] See [2]. 

[54] See [2].

[55] See [2].

[56] See [2].

[57] Nicole Foy, We Found That More Than 170 U.S. Citizens Have Been Held by Immigration Agents. They’ve Been Kicked, Dragged and Detained for Days, PROPUBLICA (Oct. 16, 2025),

https://www.propublica.org/article/immigration-dhs-american-citizens-arrested-detained-against-will

[58] See [57].

[59] See [2].

[60] César Cuauhtémoc García Hernández, The Trump administration puts ethnicity on the court’s emergency docket, SCOTUSBLOG (Aug. 19, 2025), https://www.scotusblog.com/2025/08/the-trump-administration-puts-ethnicity-on-the-courts-emergency-docket/

[61] See [2].

[62] See [2].

[63] See [2].

[64] See [2].