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March 01, 2021

From Traffic Stop to Deportation Order: Black Immigrants and Criminal Immigration Removals

When the federal removal machinery relies upon local arrests to trigger enforcement action, immigrants of color are disproportionately affected.

When the federal removal machinery relies upon local arrests to trigger enforcement action, immigrants of color are disproportionately affected.

During the Obama administration, hundreds of thousands of noncitizens, lawful permanent residents as well as undocumented immigrants, were removed each year on criminal grounds.*  Although some noncitizens convicted of serious crimes were removed during this period, most of the removals were based on minor crimes, such as traffic violations.

Over the last few decades, Congress has passed a series of tough immigration enforcement laws, which are especially tough on immigrants convicted of crimes. Stops for “driving while Black” and “driving while Brown” have long been a staple of the “war on drugs.” When the federal removal machinery relies upon state and local arrests to trigger immigration enforcement action, immigrants of color are disproportionately affected.  

Disparate racial impacts in the criminal justice system mean disparate racial impacts in deportations.  In the Obama years, 90 percent of removals were of Latinx noncitizens. Although the Trump administration did not release statistics breaking down removals by country, we do know that 90 percent of all removals in the Trump presidency were based on criminal arrests and convictions.

Because of the centrality of race to contemporary policing, Black immigrants, similar to Latinx persons, are disproportionately at risk. Racial profiling, for example, and driving while Black have been well-established. One case exemplifies the risks to Black immigrants who encounter the criminal justice system.

In 2013, the Supreme Court in Moncrieffe v. Holder (2013) Moncrieffe v. Holder :: 569 U.S. 184 (2013) :: Justia US Supreme Court Center rejected a Board of Immigration Appeals order of removal from the United States of a long-term lawful permanent resident based on a single criminal conviction for possession of the equivalent of two to three marijuana cigarettes.  Adrian Moncrieffe, a Black immigrant from Jamaica who came to the U.S. in 1984 at age three, had two U.S. citizen children. He had lived, worked, attended school, and married in the United States. He no longer had ties with Jamaica.  

The Supreme Court decided Moncrieffe’s removal case without having before it the full set of facts surrounding his criminal conviction. The facts of the criminal case offer important lessons about how the contemporary criminal justice system works in combination with the modern immigration removal system to disparately impact communities of color, including Black immigrants. My research in the criminal case considered materials not before the Supreme Court, including the police report of Moncrieffe’s arrest, and correspondence with the officer who made the stop.   

Moncrieffe v. Holder would not have made it to the Supreme Court absent the criminal conviction that triggered the removal proceedings. On the night of June 13, 2006, a City of Perry (Georgia) police officer was “monitoring traffic” on Interstate 75, a main artery along the East Coast that includes a stretch extending from Georgia to Florida. At various times, racial profiling has been reported on Interstate 75. At approximately 11:15 p.m., the officer pulled over Adrian Moncrieffe, a young Black man from Palm Beach, Florida, as he was driving south in a black Chevrolet Tahoe. Moncrieffe was returning to Palm Beach after a weekend visit with his daughter in Atlanta. The police report does not state that Moncrieffe was speeding.

The police report stated that the officer stopped the Chevrolet Tahoe and said that the dark tinting on the vehicle’s windows might violate of Georgia law. He later wrote that. “I particularly like the tint violation as a reason for stopping folks because it negates the argument that I stopped a particular sex or race.” Given that the stop was at night, it is uncertain what the officer could physically see that would make him suspect that the tint on the windows was too dark. He wrote in the police report that he then “made contact with two B/M’s [a reference to Black males] inside the vehicle.”  

The officer made several observations that he said gave rise to a suspicion of unlawful activity. He smelled air freshener “like it was just sprayed in the vehicle.” He also saw an air freshener hanging on the rearview mirror, which the officer wrote in the police report as “a strange location.”  

The officer was suspicious of Moncrieffe’s statement that he was “friends” with the passenger, Keyaonta Robinson because Moncrieffe was “several years older” than Robinson.  The police report states that the officer thought it out of the ordinary that Moncrieffe “was taking a friend to hang with him while allegedly visiting his daughter in Atlanta.” The report also stated that Moncrieffe had “more luggage than would be necessary for a three day trip.”

The officer talked with the driver and passenger before smelling marijuana in the vehicle.   The officer asked Moncrieffe if he had smoked marijuana. Moncrieffe admitted to having smoked a “blunt” – a marijuana cigarette – earlier in the day. The officer then searched Moncrieffe but did not find contraband or anything suspicious.    

Next, the officer had “K9 Rex,” a police dog trained to search for drugs, sniff the exterior of the Chevrolet Tahoe. The dog alerted. The officer then found a small amount of marijuana in the vehicle.  He also “located a wallet, which had three separate bundles of US currency. [$1050]  I have seen money separated out like this in the past when making narcotics arrest.”

Moncrieffe was arrested for possession of marijuana in an amount or packaged indicative of distribution, in violation of Georgia law.

Consider the facts surrounding the traffic stop and search. It cannot be said for certain whether the race of the driver and passenger influenced the officer in deciding to stop the vehicle, in his interactions with Moncrieffe and Robinson, or his suspicion of illicit activity. The officer did find the race of driver and passenger “two B/M’s” worth noting in the police report.  

The window tint violation on which the officer said the initial stop was based seems dubious given that the stop was at night. The alleged window tint violation was irrelevant to the Moncrieffe’s subsequent questioning, search, arrest, and ultimate drug conviction. A series of innocent factors and factually-based speculations unrelated to the window tint violation raised the officer’s suspicions. Only after the stop and the initial questioning of Moncrieffe did the officer smell marijuana in the vehicle. A drug-sniffing dog was on the scene.

Moncrieffe’s initial encounter with the officer was due to a traffic stop unrelated to the drug offense for which he was arrested. The possible window tint violation may well have been a pretext for the traffic stop. Recall that the police report does not suggest that Moncrieffe was speeding or otherwise violating the traffic laws.

The police officer found a small amount of marijuana and a little more than $1000 cash in the search of the vehicle. He considered the cash and its bundling to be suspicious and speculated that Moncrieffe was engaged in the sale of marijuana.  

All that said, the stop, arrest, and conviction of Adrian Moncrieffe may well have been constitutional under current Fourth Amendment doctrine. The alleged tint violation arguably satisfied the Fourth Amendment requirements for a traffic stop. The smell of marijuana provided the probable cause necessary to justify the search of the vehicle. Moncrieffe pleaded guilty to possession of marijuana, and the court placed him on probation.

A traffic stop on the interstate began a series of events that took Adrian Moncrieffe through the Georgia criminal justice system before his case percolated through the U.S. immigration removal system to the Supreme Court. The Court reviewed what it treated as a straight-forward immigration removal case, with its decision revealing none of the racial overtones of the traffic stop that led to Moncrieffe’s criminal arrest and conviction. From reading the Court’s opinion, one could not say for certain that Moncrieffe was Black. 

In a 7-2 decision, the Supreme Court, in an opinion by Justice Sonia Sotomayor held that the conviction under state law criminalizing, among other offenses, possession of a small amount of marijuana as well as large quantities for sale, failed to constitute an “aggravated felony” for purposes of removal under the U.S. immigration laws.   The decision in Moncrieffe v. Holder was one of a number of times that the Court in recent years rejected the U.S. government’s assertion that a relatively minor drug offense constituted an aggravated felony for purposes of the immigration laws. The cases generally involved people of color.

Today, immigration removals fall disproportionately on communities of color.  Focusing on “criminal aliens” in removal efforts exacerbates the racial impacts because of the racially disparate impacts of the criminal justice system in the United States. Black immigrants as well as Latinx immigrants are those most at risk of removal.

* The analysis here borrows from Kevin R. Johnson, Racial Profiling in the War on Drugs Meets the Immigration Removal Process: The Case of Moncrieffe v. Holder, 48 U. Mich. J. L. Reform 967 (2015).  Sources for the assertions in this blog post can be found in the article.

About the Author:

Kevin P. Johnson is Dean and Mabie-Apallas Professor of Law and Chicanx Studies at the University of California, Davis School of Law. He has written extensively on the intersection of immigration and civil rights law and blogs at the ImmigrationProf blog