On Monday, September 8, the Supreme Court issued a decision in Noem v. Vasquez Perdomo, pausing a lower court ruling regarding Immigration and Customs Enforcement (ICE) and individuals who can be stopped and detained under “reasonable suspicion” of being an illegal immigrant. The ruling overturns a temporary restraining order (TRO) issued by District Judge Maame Ewusi-Mensah Frimpong in Vasquez Perdomo v. Noem on July 11, 2025, which prevented ICE from detaining individuals based solely on four factors: “(1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found[…]; and (4) the type of job they appeared to work” (Sotomayor’s dissent).
This case was an appeal decided on the so-called “shadow docket”. These are cases that are decided with limited briefings, no public hearings, and in some cases (including this one), no official opinion of the court or list of which justices voted for or against a motion. Unfortunately, this means we have no transcripts or official reasoning, which does make analysis difficult. That said, Justice Brett Kavanaugh did offer a concurrence. Justice Sonia Sotomayor offered a dissent, which was joined by Justices Ketanji Brown-Jackson and Elena Kagan. I will be referring to these documents when analyzing the court’s decision. (This also means that Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney-Barrett have not commented on this case, but due to the need for a majority to vote on this decision, at least four of them voted in favor of it.) It is worth noting that Kavanaugh’s reasoning may not reflect the reasoning of other members of the majority (again, we have no opinion in this case), but as it’s the only reasoning any member has provided, I will be citing to it as the closest thing we have to a majority opinion to try to analyze the reasoning behind this decision.
I won’t try to hide my biases in this case: I think the Supreme Court got this decision wrong. For one, Kavanaugh’s concurrence notes that “apparent ethnicity alone cannot furnish reasonable suspicion”, but the initial case noted at least one instance in which, allegedly, the [ICE] agents approached and prevented a non-white individual from walking away but not those who appeared to be Caucasians” (Order granting TRO).
Furthermore, Kavanaugh ascertains that “reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status”. I actually fully agree that this is the legal standard for reasonable suspicion, but I don’t think that it is accurate to what the initial plaintiffs allege happened to them. Plaintiffs Vasquez Perdomo and Carlos Alexander Osorto were waiting at a bus stop when a series of unmarked ICE vehicles arrived. Agents with no badges or other identifying information grabbed Vasquez Perdomo and Osorto, who were “surrounded, grabbed, handcuffed, and put into one of the vehicles.” The agents did not show a warrant, and “[i]t was only after [they were] brought to a nearby CVS parking lot that agents checked” if they had identification.” Osorto alleges that “[a]gents did not inform [him] that they were immigration officers authorized to make an arrest or of the basis for his arrest.” Plaintiff Isaac Villegas Molina alleges he “was told to provide his identification, and he provided his California ID, but the agent kept questioning him.” At the time of the TRO being filed, Vasquez Perdomo, Osorto, and Villegas Molina were being held at a detention facility. Plaintiff Jorge Hernandes Viramontes alleges that “agents asked [him] whether he was a citizen, and he replied yes and explain that he was a dual citizen of the U.S. and Mexico.” Hernandez Viramontes showed an ID, but was told this was insufficient and detained. Vasquez Perdomo, Osorto, and Villegas Molina were detained before being questioned, and Hernandez Viramontes was detained after showing ID and telling enforcement he was a citizen. None of these matches the standard of a brief stop and inquiry. These are evidence-less detentions (Order granting TRO).
Next, Kavanaugh cites to Los Angeles v. Lyons (1983) to hold that the fear of another incident with law enforcement is insufficient reasoning to provide a TRO. That said, I don’t think the fact pattern matches to make them particularly comparable. In Los Angeles v. Lyons, Adolph Lyons had sued the city of Los Angeles after being put into a chokehold, out of “fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.” The Supreme Court, with Justice Byron Raymond White writing for the majority, found that a preliminary injunction (PI) was inappropriate in this case because injunctive relief required that “the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical'” (Los Angeles v. Lyons). However, “[s]hortly after agents returned Hernandez Viramontes to the car wash, yet another group of agents raided the car wash again” (Order granting TRO). The deciding factor in Los Angeles v. Lyons was that Lyons had not shown that the threat of injury he alleged was “real or immediate”. In the case of Hernandez Viramontes, whose workplace was raided soon after he was returned, there probably was a more real and immediate potential injury. Comparing this to Los Angeles v. Lyons misrepresents the likelihood of the injury happening again.
Additionally, let’s look to Kavanaugh’s assertion that “[race or ethnicity] can be a ‘relevant factor’ when considered along with other salient factors.” Kavanaugh joined in full with the majority in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), whose opinion was written by Chief Justice Roberts. In this decision, Roberts holds that the Fourteenth Amendment intended to eliminate all racial discrimination, and that “[e]liminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies ‘without regard to any differences of race, of color, or of nationality’—it is ‘“universal in [its] application.'” The second paragraph of Kavanaugh’s additional concurrence opens: “[r]atified in 1868 in the wake of the Civil War, the Equal Protection Clause of the Fourteenth Amendment provides: ‘No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.'” Noem v. Vasquez Perdomo makes no sense in this light.
That said, none of this is what was most concerning to me in Kavanaugh’s concurrence, and this is the other reason that I think the court got this decision wrong. The core of Kavanaugh’s reasoning was about the “balance of equities” in the case. The concept of this is pretty simple; it’s basically considering what each party stands to gain or lose depending on the outcome, and determining which interests are stronger. All TROs and stays on TROs are based on determining the balance of equities. Kavanaugh determines “the interest in illegal immigrants in evading questioning (and thus evading detection of their illegal presence) is not particularly substantive in a legal matter”, as this is “ultimately an interest in evading the law.” At the time that the TRO was filed, Vasquez Perdomo, Osorto, and Villegas Molina were all in detention centers. Allegedly, Vasquez Perdomo “was given little to eat”, Villegas Molina “was given almost nothing to eat”, and at the facility Osorto was being held at, “when people asked for help, [detention] officers told them there was no food, no water, and no medicine” (Order granting TRO). If this is true, these men are three of many who may currently be starving to death. Their interest in this case was not about evading law enforcement, but in not dying. Kavanaugh does not acknowledge this. I fundamentally think that people’s interest in not dying outweighs the government’s interest; therefore, I think this decision was wrong.
As far as I can find, at least when digging through the case documents that I can get access to, none of these three have even been charged with anything (either in criminal or immigration courts) that would necessitate detention. (I have been trying to ground my analysis in the actual legal documents of this case due to large amounts of disinformation surrounding it, so I may have missed something here.) That said, if this is true, then Kavanaugh and, by extension, the majority of the court, have determined that not dying while being held extrajudicially is not a real interest in this case. This is also part of why I wanted to write this article. The racial profiling is the easy, on-the-face part of this decision. Deeper hidden are serious concerns about the legalization of extrajudicial killing.
That said, this is not the end of this case. This is the other part that I think most outlets have been missing. The Frimpong court is still considering a PI that could restore the protections against ICE’s racial profiling of people. Usually, a PI will replace our TRO anyway, regardless of whether or not a TRO stay was successful. The plaintiffs were granted an extension to submit these documents in light of the new Supreme Court decision, and they will be due for submission to the court on September 15. (Note: this article was submitted for review on September 13, so by the time this is published, some of these dates may have passed.) A hearing for the PI will be held on September 24. There is no firm deadline for a decision on this motion, but given that the Frimpong court had a one-day turnaround from hearing the motion for the TRO to granting it (July 10 and July 11, respectively), we should probably have a decision soon after the hearing for the PI. The initial decision is 52 pages and was released in one day, so they are clearly moving quickly on this issue. It’s quite possible that we would have a decision on this by the end of that week, and that Frimpong will reinstate the protections as a PI.
Also, whatever happens with the PI, that’s not the end of this case. The lower court will make a final ruling, and whoever wins or loses, it will be appealed to a federal appeals court and to the Supreme Court. They will have the final word on this case. Kavanaugh’s concurrence is a worrying harbinger, but it is also a potential opportunity. In this case, we do actually have some amount of reasoning for a shadow docket ruling, and that’s more than we get in a lot of shadow docket cases. This case is far from over, and the plaintiffs now have more opportunity to strengthen their arguments regarding these concerns. It’s not a guarantee the outcome will be different, but it is an opportunity.
That said, for anyone looking for quick takeaways about this story:
- This is a shadow docket ruling, and while we know the stances of four justices (Kavanaugh in the majority; Sotomayor, Brown-Jackson, and Kagan in the minority), we don’t know the stances of five (Roberts, Alito, Thomas, Gorsuch, and Coney-Barrett), though at least four of them are in the majority.
- The ruling does state that race or ethnicity alone is insufficient legal reasoning, but this ignores what is actually happening.
- Kavanaugh’s concurrence actually ignores a lot of the evidence presented.
- Kavanaugh’s concurrence ignores that the interests are not enforcing the law versus evading the law, but enforcing the law versus extrajudicial deaths.
- There are a lot more steps to the legal process, some of which are fairly soon, but this case is far from over and will take years to resolve.
Relevant case documents:
Noem v. Vasquez Perdomo, 606 U.S. ____ (2025), Kavanaugh concurrence
Noem v. Vasquez Perdomo, 606 U.S. ____ (2025), Sotomayor dissent
Pedro Vasquez Perdomov. Kristi Noem (2:25-cv-05605), “Order GRANTING Plaintiffs’ Ex Parte Applications for Temporary Restraining Order and Order to Show Cause for Preliminary Injunction.” [ECF No. 87]
Pedro Vasquez Perdomov. Kristi Noem (2:25-cv-05605), “Order DENYING Defendants’ Ex Parte Application for Stay of Order Granting Temporary Restraining Order [ECF No. 94]; Order DENYING AS MOOT Proposed Intervenor’s Ex Parte Application to Advance Briefing Schedule on Motion to Intervene [ECF No. 93]; and Order Setting the Briefing Schedule and Hearing on Plaintiffs’ Motion for Preliminary Injunction and Order to Show Cause [ECF No. 104].” [ECF No. 181]
Pedro Vasquez Perdomo v. Kristi Noem (2:25-cv-05605), “Order GRANTING Extension of Time to File Stop/Arrest Plaintiff’s Replies [DKT. No. 182].” [ECF No. 191]
City of Los Angeles v. Lyons, 461 U.S. 95 (1983), White decision
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023), Roberts decision
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023), Kavanaugh concurrence