Immigration enforcement officials can consider factors such as location, race, accent, language spoken and type of employment regarding stop Noem v. Vasquez-Perdomo US Supreme Court 606 U. S. ____ (2025)
In a 6-3 decision, the US Supreme Court ruled that immigration enforcement officials can consider factors such as location, race, accent, language spoken and type of employment in deciding whether there is a reasonable suspicion to stop and temporarily detain an individual in order to ascertain his lawful presence in the United States. The Court also held that the challenge to the government's conduct was not properly before the federal courts on standing grounds. The ruling effectively grants a stay of a district court ruling the contrary. Source Muni-Mail <muni-mail@bobramseylaw.com>
See programs online by our friend Bob Ramsey and co-speaker:
https://gardenstatecle.com/new-cle-programs-from-2025/Cite as: 606 U. S. ____ (2025)
1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 25A169
_________________
KRISTI NOEM, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY, ET AL. v. PEDRO
VASQUEZ PERDOMO, ET AL.
ON APPLICATION FOR STAY
[September 8, 2025]
The application for stay presented to JUSTICE KAGAN and
by her referred to the Court is granted. The July 11, 2025
order entered by the United States District Court for the
Central District of California, case No. 2:25–cv–5605, is
stayed pending the disposition of the appeal in the United
States Court of Appeals for the Ninth Circuit and
disposition of a petition for a writ of certiorari, if such a writ
is timely sought. Should certiorari be denied, this stay shall
terminate automatically. In the event certiorari is granted,
the stay shall terminate upon the sending down of the
judgment of this Court.
JUSTICE KAVANAUGH, concurring in the grant of the
application for stay.
I vote to grant the Government’s application for an
interim stay pending appeal of the District Court’s
injunction.
The Immigration and Nationality Act authorizes
immigration officers to “interrogate any alien or person
believed to be an alien as to his right to be or to remain in
the United States.” 66 Stat. 233, 8 U. S. C. §1357(a)(1).
Immigration officers “may briefly detain” an individual “for
questioning” if they have “a reasonable suspicion, based on
specific articulable facts, that the person being questioned
. . . is an alien illegally in the United States.” 8 CFR2 NOEM v. VASQUEZ PERDOMO
KAVANAUGH, J., concurring
§287.8(b)(2) (2025); see United States v. Brignoni-Ponce,
422 U. S. 873, 884 (1975); United States v. Arvizu, 534 U. S.
266, 273 (2002). The reasonable suspicion inquiry turns on
the “totality of the particular circumstances.” Brignoni-
Ponce, 422 U. S., at 885, n. 10; Arvizu, 534 U. S., at 273.
The Government estimates that at least 15 million people
are in the United States illegally. Many millions illegally
entered (or illegally overstayed) just in the last few years.
Illegal immigration is especially pronounced in the Los
Angeles area, among other locales in the United States.
About 10 percent of the people in the Los Angeles region are
illegally in the United States—meaning about 2 million
illegal immigrants out of a total population of 20 million.
Not surprisingly given those extraordinary numbers,
U. S. immigration officers have prioritized immigration
enforcement in the Los Angeles area. The Government
sometimes makes brief investigative stops to check the
immigration status of those who gather in locations where
people are hired for day jobs; who work or appear to work
in jobs such as construction, landscaping, agriculture, or car
washes that often do not require paperwork and are
therefore attractive to illegal immigrants; and who do not
speak much if any English. If the officers learn that the
individual they stopped is a U. S. citizen or otherwise
lawfully in the United States, they promptly let the
individual go. If the individual is illegally in the United
States, the officers may arrest the individual and initiate
the process for removal.
Immigration stops based on reasonable suspicion of
illegal presence have been an important component of U. S.
immigration enforcement for decades, across several
presidential administrations. In this case, however, the
District Court enjoined U. S. immigration officers from
making investigative stops in the Los Angeles area when
the stops are based on the following factors or combination
of factors: (i) presence at particular locations such as busCite as: 606 U. S. ____ (2025)
3
KAVANAUGH, J., concurring
stops, car washes, day laborer pickup sites, agricultural
sites, and the like; (ii) the type of work one does;
(iii) speaking Spanish or speaking English with an accent;
and (iv) apparent race or ethnicity.1
The Government contends that the injunction will
substantially hamper its efforts to enforce the immigration
laws in the Los Angeles area. The Government has
therefore asked this Court to stay the District Court’s
injunction.
To obtain a stay from this Court, the moving party must
demonstrate a fair prospect that, if the District Court’s
decision were affirmed on appeal, this Court would grant
certiorari and reverse. The moving party also must show a
likelihood that it would suffer irreparable harm if a stay
were not granted. Those two factors are the “most critical.”
Nken v. Holder, 556 U. S. 418, 434 (2009). Particularly in
“close cases,” the Court also considers the balance of harms
and equities to the parties, including the public interest.
Hollingsworth v. Perry, 558 U. S. 183, 190 (2010)
(per curiam); see Nken, 556 U. S., at 435.
In my view, the Government has made a sufficient
showing to obtain a stay pending appeal.
To begin with, given the significance of the issue to the
Government’s immigration enforcement efforts, this Court
would likely grant certiorari if the Court of Appeals
affirmed the District Court’s injunction. See, e.g., United
States v. Texas, 599 U. S. 670 (2023); Biden v. Texas, 597
U. S. 785 (2022).
In addition, on two alternative grounds, the Government
has demonstrated a fair prospect of reversal of the District
Court’s injunction.
——————
1 The Los Angeles area at issue here is the Central District of
California, which includes the counties of Los Angeles, Ventura, Santa
Barbara, San Luis Obispo, Orange, Riverside, and San Bernardino.4 NOEM v. VASQUEZ PERDOMO
KAVANAUGH, J., concurring
First, under this Court’s decision in Los Angeles v. Lyons,
461 U. S. 95 (1983), plaintiffs likely lack Article III standing
to seek a broad injunction restricting immigration officers
from making these investigative stops. In Lyons, the Court
held that standing to obtain future injunctive relief does not
exist merely because plaintiffs experienced past harm and
fear its recurrence. What matters is the “reality of the
threat of repeated injury,” not “subjective apprehensions.”
Id., at 107, n. 8. So too here.
Plaintiffs’ standing theory largely tracks the theory
rejected in Lyons. Like in Lyons, plaintiffs here allege that
they were the subjects of unlawful law enforcement actions
in the past—namely, being stopped for immigration
questioning allegedly without reasonable suspicion of
unlawful presence. And like in Lyons, plaintiffs seek a
forward-looking injunction to enjoin law enforcement from
stopping them without reasonable suspicion in the future.
But like in Lyons, plaintiffs have no good basis to believe
that law enforcement will unlawfully stop them in the
future based on the prohibited factors—and certainly no
good basis for believing that any stop of the plaintiffs is
imminent. Therefore, they lack Article III standing:
“Absent a sufficient likelihood” that the plaintiffs “will
again be wronged in a similar way,” they are “no more
entitled to an injunction than any other citizen of Los
Angeles; and a federal court may not entertain a claim by
any or all citizens who no more than assert that certain
practices of law enforcement officers are unconstitutional.”
Lyons, 461 U. S., at 111; see Clapper v. Amnesty Int’l USA,
568 U. S. 398 (2013); Application 16–22; Reply 4–9.2
Plaintiffs’ standing theory is especially deficient in this
case because immigration officers also use their experience
——————
2 To be clear, the plaintiffs have Article III standing to seek damages
for any unlawful action taken against them. For standing purposes,
Lyons distinguished between claims for damages and claims for broad
forward-looking injunctive relief.Cite as: 606 U. S. ____ (2025)
5
KAVANAUGH, J., concurring
to stop suspected illegal immigrants based on a variety of
factors. So even if the Government had a policy of making
stops based on the factors prohibited by the District Court,
immigration officers might not rely only on those factors if
and when they stop plaintiffs in the future.
Second, even if plaintiffs had standing, the Government
has a fair prospect of succeeding on the Fourth Amendment
issue. See Brignoni-Ponce, 422 U. S. 873; Arvizu, 534 U. S.
266; Application 22–30; Reply 9–14.
To stop an individual for brief questioning about
immigration status, the Government must have reasonable
suspicion that the individual is illegally present in the
United States. See Brignoni-Ponce, 422 U. S., at 880–882;
Arvizu, 534 U. S., at 273; United States v. Sokolow, 490
U. S. 1, 7 (1989). Reasonable suspicion is a lesser
requirement than probable cause and “considerably short”
of the preponderance of the evidence standard. Arvizu, 534
U. S., at 274. Whether an officer has reasonable suspicion
depends on the totality of the circumstances. Brignoni-
Ponce, 422 U. S., at 885, n. 10; Arvizu, 534 U. S., at 273.
Here, those circumstances include: that there is an
extremely high number and percentage of illegal
immigrants in the Los Angeles area; that those individuals
tend to gather in certain locations to seek daily work; that
those individuals often work in certain kinds of jobs, such
as day labor, landscaping, agriculture, and construction,
that do not require paperwork and are therefore especially
attractive to illegal immigrants; and that many of those
illegally in the Los Angeles area come from Mexico or
Central America and do not speak much English. Cf.
Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny
number of factors” that contribute to reasonable suspicion
of illegal presence). To be clear, apparent ethnicity alone
cannot furnish reasonable suspicion; under this Court’s
case law regarding immigration stops, however, it can be a6 NOEM v. VASQUEZ PERDOMO
KAVANAUGH, J., concurring
“relevant factor” when considered along with other salient
factors. Id., at 887.
Under this Court’s precedents, not to mention common
sense, those circumstances taken together can constitute at
least reasonable suspicion of illegal presence in the United
States. Importantly, reasonable suspicion means only that
immigration officers may briefly stop the individual and
inquire about immigration status. If the person is a U. S.
citizen or otherwise lawfully in the United States, that
individual will be free to go after the brief encounter. Only
if the person is illegally in the United States may the stop
lead to further immigration proceedings.
In short, given this Court’s precedents, the Government
has demonstrated a fair prospect of success both on
standing and Fourth Amendment grounds. To conclude
otherwise, this Court would likely have to overrule or
significantly narrow two separate lines of precedents: the
Lyons line of cases with respect to standing and the
Brignoni-Ponce line of cases with respect to immigration
stops based on reasonable suspicion. In this interim
posture, plaintiffs have not made a persuasive argument for
this Court to overrule or narrow either line of precedent,
much less both of them.
The Government has also demonstrated that it would
likely suffer irreparable harm if the District Court’s
injunction is not stayed. As the Court has indicated,
“‘“[a]ny time” ’” that the Government is “‘“enjoined by a
court from effectuating statutes enacted by representatives
of its people, it suffers a form of irreparable injury.”’”
Trump v. CASA, Inc., 606 U. S. ___, ___ (2025) (slip op., at
25) (quoting Maryland v. King, 567 U. S. 1301, 1303 (2012)
(ROBERTS, C. J., in chambers)).
So it is in this case, particularly given the millions of
individuals illegally in the United States, the myriad
“significant economic and social problems” caused by illegal
immigration, Brignoni-Ponce, 422 U. S., at 878, and theCite as: 606 U. S. ____ (2025)
7
KAVANAUGH, J., concurring
Government’s efforts to prioritize stricter enforcement of
the immigration laws enacted by Congress. Notably,
moreover, the District Court’s injunction threatens
contempt sanctions against immigration officers who make
brief investigative stops later found by the court to violate
the injunction. The prospect of such after-the-fact judicial
second-guessing and contempt proceedings will inevitably
chill lawful immigration enforcement efforts.
On the two most critical factors, therefore, the
Government has demonstrated that a stay is warranted.
Turning then to the balance of harms and equities: As
with many other applications for interim relief to this
Court, the harms and equities may appear weighty on both
sides. In those circumstances, to borrow Justice Scalia’s apt
words from a different context, trying to determine whether
one party’s harms or equities outweigh another party’s can
be akin to “judging whether a particular line is longer than
a particular rock is heavy.” Bendix Autolite Corp. v.
Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988)
(Scalia, J., concurring in judgment). Moreover, in a case
like this involving government action, balancing the harms
and equities can become especially difficult and policy-
laden. That is because a court must balance the harms to
the regulated and negatively affected parties not only
against the harms to the Government as an institution, but
also against the harms to the third parties who otherwise
would benefit from the challenged government action. Cf.
Nken, 556 U. S., at 436.3
——————
3 There can be situations where, based on the record before this Court,
it appears that a temporary injunction or stay would not impose much if
any harm on the non-prevailing party in the interim period before a final
judgment. See, e.g., NetChoice, LLC v. Fitch, 606 U. S. ___, ___ (2025)
(KAVANAUGH, J., concurring in denial of application to vacate stay) (slip
op., at 2); Response in Opposition in NetChoice, LLC v. Fitch, No. 25A97,
pp. 38–39. But especially in cases involving a significant new law or
government action, the interim harms and equities are typically weighty
on both sides. In those situations, as I have explained before, resolving8 NOEM v. VASQUEZ PERDOMO
KAVANAUGH, J., concurring
In 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. That is not an
especially weighty legal interest.
To be sure, I recognize and fully appreciate that many
(not all, but many) illegal immigrants come to the United
States to escape poverty and the lack of freedom and
opportunities in their home countries, and to make better
lives for themselves and their families. And I understand
that they may feel somewhat misled by the varying U. S.
approaches to immigration enforcement over the last few
decades. But the fact remains that, under the laws passed
by Congress and the President, they are acting illegally by
remaining in the United States—at least unless Congress
and the President choose some other legislative approach to
legalize some or all of those individuals now illegally
present in the country. And by illegally immigrating into
and remaining in the country, they are not only violating
the immigration laws, but also jumping in front of those
noncitizens who follow the rules and wait in line to
immigrate into the United States through the legal
immigration process. For those reasons, the interests of
——————
the application therefore often will depend on this Court’s assessment of
likelihood of success on the merits. See Labrador v. Poe, 601 U. S. ___,
___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at
3–4) (when applicant has demonstrated irreparable harm and when the
harms and equities are weighty on both sides, “this Court has little
choice but to decide the emergency application by assessing likelihood of
success on the merits”); Trump v. CASA, Inc., 606 U. S. ___, ___ (2025)
(KAVANAUGH, J., concurring) (slip op., at 10) (“[I]n deciding applications
for interim relief involving major new statutes or executive actions, we
often have no choice but to make a preliminary assessment of likelihood
of success on the merits; after all, in cases of that sort, the other relevant
factors (irreparable harm and the equities) are often very weighty on
both sides”).Cite as: 606 U. S. ____ (2025)
9
KAVANAUGH, J., concurring
illegal immigrants in evading questioning (and thus
evading detection of their illegal presence) are not
particularly substantial as a legal matter.
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.
Finally, although the dissent emphasizes the force
allegedly used by immigration officers, that is not the issue
in this case. The District Court enjoined the Government
from stopping individuals for questioning based on several
enumerated factors. The injunction is silent as to the use
of force. And it is not necessary for the injunction to address
that use-of-force question because the Fourth Amendment’s
reasonableness standard continues to govern the officers’
use of force and to prohibit excessive force.
To the extent that excessive force has been used, the
Fourth Amendment prohibits such action, and remedies
should be available in federal court. I agree with the
dissent on that point. But to reiterate, this injunction
against brief stops for questioning does not address the use-
of-force issue.
In short, the balance of harms and equities favors the
Government here.
Especially in an immigration case like this one, it is also
important to stress the proper role of the Judiciary. The
Judiciary does not set immigration policy or decide
enforcement priorities. It should come as no surprise that
some Administrations may be more laissez-faire in
enforcing immigration law, and other Administrations
more strict. Article III judges may have views on which
policy approach is better or fairer. But judges are not
appointed to make those policy calls. We merely ensure, in
justiciable cases, that the Executive Branch acts within the
confines of the Constitution and federal statutes. Just as10 NOEM v. VASQUEZ PERDOMO
KAVANAUGH, J., concurring
this Court a few years ago declined to step outside our
constitutionally assigned role to improperly compel greater
Executive Branch enforcement of the immigration laws, see
United States v. Texas, 599 U. S. 670; Biden v. Texas, 597
U. S. 785, we now likewise must decline to step outside our
constitutionally assigned role to improperly restrict
reasonable Executive Branch enforcement of the
immigration laws. Consistency and neutrality are
hallmarks of good judging, and in my view, we abide by
those enduring judicial values in this case by granting the
stay.
In sum, the Government has demonstrated a fair
prospect of success on the merits and has met the other
factors for an interim stay pending appeal of the District
Court’s injunction. I therefore vote to grant the
Government’s application.
