“An Alien of Mexican Descent”: Racial Profiling and the Rise of Crimmigration

On January 12, 1969, two Border Patrol agents established an immigration checkpoint on Highway 99 in an attempt to prevent undocumented workers from entering the interior of California. The officers had strategically placed themselves along the highway’s “Grapevine,” the first major route to connect the Central Valley to the Los Angeles basin. In addition to taking advantage of the Valley’s natural barriers, the officers also employed racial profiling tactics to police migrant movement into the region.

Around midday, the agents stopped Tony Gonzalez Herrera under the pretext that he “appeared to be an alien, of Mexican descent, and the car was ‘saggy enough in the rear so that there could have been somebody in the back seat or the trunk of the vehicle.’” After questioning Herrera for some time, the officers grew convinced that he had entered the country legally, but they still asked to inspect the trunk of his car. The agents did not find any smuggled workers there but did notice “a large box containing a number of packages, … all of [which] were square and wrapped in brown paper.”[efn_note]People of the State of California v. Tony Gonzales Herrera, Cal. Cr. 840 (1970).[/efn_note] When the inspecting agent asked Herrera to identify the contents of the large box, he allegedly replied, “Marijuana.” The Border Patrol agents then conducted a more thorough search of Herrera’s car, discovering a gun, marijuana, secobarbital, and amphetamine sulphate. Border Patrol agents contacted the Kern County Sheriff’s Office, where Herrera was taken into police custody. He was subsequently convicted of multiple charges.

In this post, I will examine how the Border Patrol’s control of migration—and of migrant labor—provided a test site where the state developed new forms of power in the US interior. The Herrera case provided Border Patrol agents with the legal precedent needed to conduct warrantless search-and-seizures as long as a suspect “appeared to be an alien.” By formalizing the practice of racial profiling in the interior, the Herrera Case allowed the Border Patrol to police migrants and citizens alike. The officers’ ability to function as law enforcement auxiliaries enabled them to facilitate an interdepartmental partnership between themselves and local police departments. Examining the intersection of these two systems in Kern County can allow us to gain a deeper understanding of crimmigration’s early roots.

Through the new infrastructure of stop-and-search border control that it created, the Herrera case enabled Border Patrol officers to detain anyone who “appeared to be an alien” even when they were not near the Mexican border.

In “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” the legal scholar Juliet Stumpf argues that the War on Drugs precipitated a national “convergence” of criminal and immigration law, which she terms “crimmigration.”[efn_note]Juliet Stumpf, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” in Governing Immigration Through Crime: A Reader, ed. Julie A. Dowling and Jonathan Xavier Inda (Stanford: Stanford University Press, Stanford Social Sciences, 2013), 59–76.[/efn_note] I posit that a nascent form of the same phenomenon emerged in California’s Central Valley before the War On Drugs. Building on the work of historian Rachel Rosenbloom, I refer to this earlier form as “proto-crimmigration.”[efn_note]Rachel E. Rosenbloom, “Policing Sex, Policing Immigrants: What Crimmigration’s Past Can Tell Us About Its Present and Its Future,” California Law Review 104, no. 1 (2016): 149.[/efn_note] Eleven years before the emergence of the War on Drugs, the Herrera case enabled Border Patrol officers to detain anyone who “appeared to be an alien” even when they were not near the Mexican border. The use of these racial profiling tactics emboldened police and immigration agents to effectively criminalize the lives of Brown people.

A 1954 image of a Border Patrol checkpoint in Kern County. Immigration inspections were so rare at this time that the local newspaper decided to document the event. Image from Bakersfield Californian.[efn_note]”Surprise,” Bakersfield Californian, Apr. 27, 1954, 18.[/efn_note]

As the historian Kelly Lytle Hernandez notes in Migra! (2010), Border Patrol officers had been incorporating crime control into their daily routine since the early 1960s.[efn_note]Kelly Lytle Hernandez, Migra! A History of the U.S. Border Patrol (Berkeley: University of California Press, 2010), 205–13.[/efn_note] Agents established immigration checkpoints along major highways leading from the Mexican border, and their inspections not only captured undocumented migrants, they also subjected “illegal” and “legal” Latinx individuals to forms of criminal surveillance that had traditionally belonged to the province of police. On multiple occasions, Border Patrol officers would stop individuals they suspected of being in the country illegally only to inspect their vehicles and find illegal drugs. The subjects of these searches routinely contested their prosecution in cases such as Henry Luis Sinohui Contreras & Oscar Sinohui Contreras v. United States (1961), Luis Sanchez Plazola v. United States (1961), and Lazaro Fernandez v. United States (1963).[efn_note]Henry Luis Sinohui Contreras, Oscar Sinohui Contreras v. United States of America, 291 F.2d 63 (1961), Luis Sanchez Plazola v. United States of America 291 F.2d 56 (1961), Fernandez v. United States, 321 F.2d 283 (1963).[/efn_note] In the 1963 Fernandez case, the United States Supreme Court ruled that Border Patrol officers could “stop and search a vehicle within seventy-five air miles of any external boundary of the United States.”[efn_note]Fernandez v. United States, 321 F.2d 283 (1963).[/efn_note] In the aftermath of the Fernandez case, the Immigration and Naturalization Service was able to adopt a search policy that expanded the distance from seventy-five to one hundred miles.[efn_note]Immigration and Nationality Act of 1965 (8 Sec. 1357).[/efn_note] This protraction provided Kern County Border Patrol officers with the impetus they needed to conduct warrantless searches in California’s Central Valley.

One major detail distinguished the Herrera case from those that came before. Herrera was nowhere near the border. While the Border Patrol had stopped and searched the Sinohui brothers, Plazola, and Fernandez within a hundred miles of the Mexican border, Herrera had been stopped at the lower rim of California’s Central Valley, more than two hundred miles north of the United States–Mexico boundary. Herrera’s unprecedented arrest extended the arm of immigration control far beyond the border, and it prompted Herrera to bring his case to the California Court of Appeals. There Herrera argued that the checkpoint had been located too far north for the agents to have had any probable cause to stop his vehicle.

Attorney General Thomas Lynch, arguing on behalf of the Border Patrol officers, defended the expansion of the INS’s reach by citing the Immigration and Nationality Act of 1965. Title 8 of this new federal law allowed INS officers to conduct warrantless searches not only of “any alien” but of “any person believed to be an alien,” as long as the search took place “within a reasonable distance from any external boundary of the United States.”[efn_note]Fernandez v. United States, 321 F.2d 283 (1963).[/efn_note] The officers reminded the court that the term “reasonable distance” accounted for any search that took place within a hundred-mile limit. Although the agents had pulled Herrera over far from the Mexican border, they had conducted their search fifty miles east of the Pacific Ocean, a recognized international boundary. The California Circuit of Appeals responded to this logic by choosing to uphold the search’s constitutionality.

The case of The People v. Herrera helps us to understand how border enforcement tactics originally confined to the Mexican border advanced into the interior of the United States, radically expanding the power and reach of the INS. The court’s decision makes clear that the Border Patrol utilized Herrera’s proximity to the Pacific Ocean as an excuse to justify an illegal search of a car that came from a different direction. There was little to no “threat” of migrants entering the region from the west: no major ports of entry lay in that direction; no major roads led from it to the Valley. It was not with the Pacific but with Mexico in mind that the officers had positioned their checkpoint along the Grapevine. In 1969 the Golden State Highway still ran along the entire West Coast, connecting Mexico, the United States, and Canada, and migrant workers traveled along this road to follow the San Joaquin harvests. Not only was the Ninth Circuit privy to this information, the justices even cited it in their decision. “The economy of the Valley is primarily agricultural and employs a large number of Mexican-Americans and Mexican-Nationalists, legally in the country as holders of so-called “Green Cards,” Justice P. R. Borton observed in the majority opinion, “and it is common knowledge many aliens enter the United States from Mexico via Highway 99 into the San Joaquin Valley.”[efn_note]People of the State of California v. Tony Gonzales Herrera, Cal. Cr. 840 (1970).[/efn_note]

The case had nothing to do with the Pacific Ocean, but the proximity of Highway 99 to the coastline provided the justification that the Border Patrol needed to establish immigration checkpoints across the Central Valley—as long as they were located within one hundred miles of the coast. After reviewing the attorney’s arguments, Justice Borton determined that the Border Patrol officers had legally searched Herrera and that the location of their immigration checkpoint was justified under the United States Immigration Act of 1965.[efn_note]People of the State of California v. Tony Gonzales Herrera, Cal. Cr. 840 (1970); see also the Immigration and Nationality Act of 1965 (8 Sec. 1357).[/efn_note] Moreover, the Herrera ruling emboldened INS officers to function as both immigration agents and law enforcement auxiliaries. It gave them license to indiscriminately stop individuals who “appeared to be aliens” and search their bodies and property. This expansion of the Border Patrol’s powers subjected both “legal” and “illegal” people of color to hyper-policing, placing migrants and citizens alike under increased surveillance.

In the years that followed the Herrera ruling, local law enforcement and federal immigration departments in Kern County began collaborating to incarcerate criminalized Brown people and deport “illegal aliens.” In addition to the Herrera case and the Pacific Ocean factor, this phenomenon was precipitated by two major events. The first was the establishment of a Border Patrol station in Kern County—the site of California’s vast agricultural fields and a popular migrant labor destination—in 1965.[efn_note]Bruce Kipp, “Border Patrol Has Staff Here,” Bakersfield Californian, July 12, 1965, 26.[/efn_note] The office was run by a mere five men until a local union of farmworkers complained that landowners were using Mexican nationals to break strikes.[efn_note]Bill Bloecher, “Wetback Control Begins,” Bakersfield Californian, Aug. 16, 1967, 15.[/efn_note] In response, the INS launched a migrant removal campaign that allowed the Kern border force to grow five times its size.[efn_note]Bloecher.[/efn_note] By the time Herrera was stopped by the two Border Patrol officers in early 1969, he faced a system with the resources to establish twenty-four-hour immigration checkpoints along highways and participate in migrant and crime control—procedures that would have been nearly impossible for the county’s original five agents to carry out alone. After Herrera, the augmented Border Patrol continued to police migrants and report citizens whom officers suspected of committing a crime to local police. So called “criminal aliens” were not the only ones caught in this immigration–crime nexus. The partnership resulted in the apprehension of migrants and citizens alike, especially if they joined strikes.

Photograph of migrant workers being removed in 1967 after the Kern County Border Patrol station was reinforced with INS planes and manpower. Photo from Bakersfield Californian.[efn_note]”Wetbacks Taken Out By Planeload,” Bakersfield Californian, Aug. 24, 1967, 17.[/efn_note]

By 1970 immigration checkpoints were common sights on the Grapevine and the Border Patrol used them to police not just migrants but citizens suspected of committing crimes. On April 23, Border Patrol officers stopped Steve Romero, Jimmy Lee Dano, and three unidentified juveniles at a Grapevine service station. Under the protection of the Herrera ruling, the men proceeded to inspect the boys’ trunk even after they established that the entire group was in the country legally. Upon finding spare car parts, the immigration officers accused the youths of theft and contacted the California Highway Patrol, who arrested them for possession of stolen property.[efn_note]“Evidence Dispute Ruling Scheduled,” Bakersfield Californian, May 6, 1970, 38.[/efn_note] The details of this arrest, almost indiscernible from the Herrera case, demonstrate that the Border Patrol used the Herrera ruling to widen racial profiling tactics and carry out warrantless searches without any check on its power.

On the flip side of the new surveillance nexus, local law enforcement agencies now began to respond to the Border Patrol’s favors by alerting it to undocumented immigrants—that is, anyone suspected of not being a citizen—locked up in the county jail. In early June 1973, three hundred members of the United Farm Workers congregated outside the sheriff’s station to protest the department’s interference in their strike. Following the demonstration, a group of union members were arrested and charged with assault after sheriff deputies reportedly saw them throwing dirt clods at a pickup truck carrying non-union workers into a field.[efn_note]“UFW Claims Sharp Cut in Roberts Farm Job Force,” Bakersfield Californian, June 7, 1973, 10.[/efn_note] Unable to prove that the detained strikers had actually thrown the dirt, the Kern County Sheriff’s Office contacted the Border Patrol and invited its agents to conduct an immigration check on the detainees. The Border Patrol requested that the group be held in county jail until officers could determine their legal status. Under the cover of the Herrera ruling, the agents could justify their immigration checks as long as they claimed that they “suspected” the strikers of having entered the country illegally. Upon further investigation, the Border Patrol determined that the detainees were legal residents.

Kern County’s interdepartmental partnership not only impacted criminalized migrants and citizens, it also enabled law enforcement to turn over any undocumented migrants who sought social services to the Border Patrol. In June 1974, four Mexican nationals involved in a car crash were apprehended by the California Highway Patrol. Three of the victims attempted to flee on foot but were pursued and captured by officers a mile away, who turned them over to the Sherriff’s Department for transfer to the Border Patrol. Apprehensions of this kind were not uncommon in the Central Valley. Since the expansion of the Border Patrol force in 1967, officers had acquired the logistical capacity to detain any undocumented migrants who were turned over to them. The pages of the Bakersfield Californian contained various reports that demonstrate how migrants came to be detained by the Border Patrol after entering the county’s web of law enforcement and social services.[efn_note]“Crash Results in Arrest of Aliens,” Bakersfield Californian, June 12, 1974, 14. For similar cases, see, e.g., “5 Aliens Injured in Fog Caused Accident,” Bakersfield Californian, Jan. 14, 1974, 9; “Deportee Held in Illegal Case,” Bakersfield Californian, Nov. 18 1967, 9; “2 Suspects Held in Lamont Slaying,” Bakersfield Californian, June 27, 1975, 1; “Illegal Alien Arrest Total Soars,” Bakersfield Californian, July 13, 1976, 12; “Illegal Alien Influx To Continue Growing, Official Tells Club,” Bakersfield Californian, July 11, 1976, 22.[/efn_note] It is unclear whether the state police used the Border Patrol’s racial profiling tactics to determine the detained Mexicans’ legal status, but the case certainly demonstrates that immigration officers and local law enforcement were building a cooperative partnership in the years immediately following the Herrera case. This relationship hinged on the Border Patrol’s ability to engage in policing and extend small courtesies to local law enforcement.

The Herrera case can help us begin to understand how immigration policies in the United States gave way to crimmigration in the 1980s. While racial profiling tactics were commonly used by Border Patrol agents in the US–Mexico borderlands, there was no legal precedent for implementing them in the US interior. The Herrera Case and its use of the Pacific Ocean demonstrate how border and interior enforcement began to merge. The ability to establish immigration checkpoints in the Central Valley and interrogate suspects based on their appearance allowed Border Patrol officers to simultaneously expand the apparatus of border policing and law enforcement. The national consolidation of these two state projects would eventually result in the rise of crimmigration.

The intersection of migrant and crime control systems, crimmigration theorist Juliet Stumpf argues, “has created parallel systems in which immigration law and the criminal justice system are merely nominally separate.”[efn_note]Juliet Stumpf, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” 3.[/efn_note] Does crimmigration have earlier roots, predating the War on Drugs? What happened in Kern County between 1969 and 1980 certainly counts as an early manifestation of crimmigration, yet it appears to be a local phenomenon. Kern County became an early seedbed of the nascent system of state surveillance, but interdepartmental partnerships and the resulting heightened surveillance of all Latinx communities had yet to be propagated across the country. The policies operating in the county were not yet formalized by authoritative policing experts or united by a national directive. Therefore, it is most accurate to identify the Herrera case as an example of “proto-crimmigration,” when crime and migrant control tactics were expanding. The expansion of the immigration–policing nexus innovated in California would subsequently subject many more vulnerable communities—including migrants, strikers, and racialized peoples—to the increased surveillance known by Mexican Americans.

Nahomi Esquivel is a PhD student at the University of Chicago. Her research interrogates the systemic productions and economic functions of (il)legal immigrant categories.

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