By Tracy Waller, MPH, Esq.
The Supreme Court and ICE: Noem v. Perdomo. On September 8, 2025, the Supreme Court heard one issue in a case on their shadow docket, the current name for cases that are rushed in front of other cases.
The Name of the Case:
Noem v. Perdomo
The Background: The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures (taking things) by the government. However, an officer, or government official may conduct a brief stop and search if they have reasonable suspicion to believe someone has been involved in criminal activity – this includes immigration stops based on reasonable suspicion of illegal presence. Rather than using one specific reason, they are supposed to use “the totality of the circumstances,” or many factors to make their decision for stopping a person. On June 18, 2025, Pedro Vasquez Perdomo, Carlos Alexander Osorto, and Isaac Villegas Molina, who are residents of Pasadena, California, were arrested at a bus stop as they were waiting to be picked up for a job. Pedro Vasquez Perdomo and the other plaintiffs filed a lawsuit against the Governor of South Dakota, Kristi Noem, and federal immigration authorities.
The (Legal) Issue: Perdomo and the other plaintiffs are arguing that Immigration and Customs Enforcement (ICE) agents violated the Fourth Amendment because ICE agents did not have reasonable suspicion for their stops because they were relying on any combination of four factors to justify their stops and not the reasonable suspicion that was required under the Fourth Amendment. These four factors were:
1) The type of work one does—like day labor, landscaping, agriculture, and construction, that do not require paperwork;
2) Being at a location where undocumented immigrants are 'known to gather'- like bus stops, car washes, day laborer sites, pickup sites, agricultural sites;
3) The race or ethnicity people appeared to be;
4) The language they spoke- such as Spanish, or accented English.
Is it Over?
This case has not yet been fully decided—but while the Fourth Amendment issue is pending, there are temporary restraining orders (TRO) that have been at play and that is what the Supreme Court was ruling on—rather than the entirety of the issue. The Supreme Court made a decision on the TRO and sent it back to the other courts to decide.
What Happened in the Courts Before the U.S. Supreme Court?
On July 11, a U.S. District Court judge issued a temporary restraining order preventing ICE agents from using race, language, and job type as the only reasons to hold people unless they had other reasons for suspicion. This meant that ICE could not use those factors to conduct raids as long as the TRO was in effect. The Justice Department appealed to the U.S. Court of Appeals for the 9th Circuit, but the 9th Circuit kept the TRO in place. The Justice Department filed an emergency appeal to the Supreme Court.
U.S. Supreme Court Decision: On September 8, 2025, the U.S. Supreme Court granted the Justice Department’s emergency application for emergency stay. This means that ICE can now more freely engage in immigration stops, especially at places like car washes and farms while the case plays out.
The hearing in the District Court was originally scheduled for September 24, 2025. While the stay remains in place, the Ninth Circuit Court of Appeals of California will continue to review this case. If the Ninth Circuit agrees with the district court’s decision, the Justice Department will likely appeal to the Supreme Court and ask them to take on the case.
A Few Notable Citations from Within Kavanaugh’s Concurring Opinion:
Citing a case from 1975 titled United States v. Brignoni-Ponce, Justice Kavanaugh wrote, “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.” 422 U. S. 887.
Kavanaugh writes as if he agrees that someone’s appearance cannot create reasonable suspicion. He says that, “[i]mportantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status” to make sure people are not being harmed during stops.
But then, he goes on to say, “[i]n any event, the balance of harms and equities in this case tips in favor of the Government. The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law.” In the end, Kavanaugh holds for the government—and finds for the Justice Department.
What This Opinion Means Right Now, (you can find more on this two-pager about what the Court did and did not say about limited stops):
- What Officers can do under this opinion:
- Officers may briefly question individuals about their immigration status only if they have reasonable suspicion a person is not legally in the United States
- Reasonable Suspicion: must be based on specific facts, that can be communicated
- Apparent Ethnicity (the way someone looks): is not allowed by itself to create reasonable suspicion
- Totality of Circumstances: reasonable suspicion is based on many factors—the way someone looks is only one part of the total picture
- Apparent Ethnicity in combination with working at specific jobs identified may create enough reasonable suspicion to justify a stop under Justice Kavanaugh’s opinion
- What Officers cannot do under this opinion:
- They cannot stop people based only on apparent ethnicity
- This does not apply outside of the Los Angeles region because no other region has as many undocumented immigrants
- The ICE stops can only resume at selective places in LA: ICE cannot make stops at places other than where “working jobs” are identified. This includes places where Latinos may also gather such as:
- music concert featuring a Latino artist, a neighborhood Target or Walmart, or a Latino-themed event
- Excessive force is not permitted during the stops or arrests
