Courts are starting to admit that some immigration laws are racist
Referral by district court
Oregon District Court Decision
(Reuters) – A Nevada federal judge first ruled last week that a long-standing law that makes re-entry into the United States a felony after deportation is unconstitutional because it is explicitly racist in its origins .
Federal laws make it an offense to enter the country without permission and a felony to return, punishable by up to six months in prison for entry and up to 20 years for re-entry. . Today, illegal entry and re-entry are the most prosecuted crimes in federal courts, according to Federal Courts Administrative Office caseload statistics from 2008 to 2019.
Judge Miranda Du of the United States District Court for the District of Nevada on August 18 dismissed a case against Gustavo Carrillo-Lopez, who was charged with staying in the United States after being previously deported. Du said Carrillo-Lopez had shown that the law of return was “enacted with a discriminatory purpose and that the law had a disparate impact on Latinx people.” The government has failed to demonstrate that it “would have been enacted in the absence of racial animosity.”
The decision is a capital judicial recognition of the clearly racist and nativist foundations of laws, such as the Immigration and Nationality Act of 1952, which criminalizes readmission. This is a rare admission by the courts that the core elements of the federal immigration mechanism – the enforcement processes we now take for granted – are in fact in conflict with constitutional guarantees of equal protection and perpetuate a disparate stigmatizing impact on Latinos and Hispanics.
It is also a recognition that courts can and should repeal bias-motivated laws, especially given the prevalence of law enforcement approaches that are inextricably linked to race and identity, like convictions for drug offenses.
Oregon District Court Judge Michael Simon said in a ruling earlier this month that he was “unaware of any federal appeal decision finding that a seemingly neutral act passed by Congress was motivated by racial, ethnic or religious animosity. “
The Nevada attorney’s office did not respond to my request for comment and my question about a potential appeal.
Ahilan Arulanantham, professor and co-director of the Center
for Immigration Law and Policy at the University of California, Los Angeles School of Law, told me that the ruling is culturally significant because it broadcasts “an incredible archival and legislative history of these laws, which is really very sordid and just racist “.
The United States has criminalized border crossing for more than 90 years, and the administrations of Presidents George W. Bush, Barack Obama and Donald Trump have all stepped up the deportation and prosecution of immigrants who have entered or re-entered the country illegally. country.
But the historical record shows – quite clearly – that the criminalization of unauthorized entry and re-entry rests on fundamentally racist foundations.
This story was presented in the case of Carrillo-Lopez by UCLA historian Kelly Lytle Hernandez and Benjamin Gonzalez O’Brien, a political scientist at San Diego State University. The Aug. 3 ruling by Oregon District Judge Simon also acknowledged this story and suggested that Congress should explicitly repudiate the racism that underlies immigration laws. Government lawyers in the Carrillo-Lopez case also “conceded that discriminatory intent motivated the passage” of certain immigration laws, Du wrote.
I asked Gonzalez O’Brien if it is fair to say that it is generally accepted among historians and political scientists that America’s immigration laws today have racist foundations.
“Yeah, because if you look at this story in this country, it’s fundamentally impossible to separate the race and racism from immigration police,” said Gonzalez O’Brien. “The desire to shape the racial and cultural characteristics of this country is deeply tied to our immigration policy. “
This racialized conception dates back almost as far as US immigration law itself, which has constructed and redefined “whiteness” over the centuries, as PBS reported in September 2017.
The Page Act of 1875 and the Chinese Exclusion Act of 1882 effectively prohibited Chinese immigration.
The National Origins Act of 1924 used a racial quota system consciously designed to discourage southern and eastern Europeans from entering the United States. He was greeted by Adolf Hitler, according to the PBS report.
Illegal re-entry was first criminalized in 1929, under the ill-titled Undesirable Aliens Act. It was this status that prosecutors said was motivated by racial animosity. At the time, Congress openly relied on the discredited pseudoscience of eugenics to enact immigration laws.
The 1952 Immigration and Nationality Act incorporated the language and re-entry bar policy of the 1929 law. But prosecutors argued that the INA is different because there are no statements in it. the Congressional dossier showing the racist intentions of lawmakers. In other words, that the policy became free of all traces of racism because elected officials did not make fanatical remarks in the Senate and House when they reproduced it.
But Congress did not repudiate the racial animosity of 1929 in 1952, even though it knew the law had a disparate impact on Latinos (Mexicans made up 99% of offenders in some years, Lytle Hernandez testified). Instead, lawmakers extended the government’s power to criminalize illegal return, and did so on the recommendation of a deputy attorney general who used a racist insult in his letter of support for the law, wrote Of.
In fact, the same Congress had enacted an “anti-accommodation” measure that lawmakers openly called the “wet back bill” a few months earlier. These policies were a compromise between agribusiness leaders who wanted undocumented immigrants for cheap and exploitable labor, and Congressional nativists who wanted to keep America white, according to academics who have testified. The law criminalized workers and those who help people cross the border, but provided a specific exemption for employers. Law enforcement targeted Latinos even though Canadians were also entering the United States in record numbers at the time, Du wrote.
Du’s opinion is a rare court decision setting out strong factual, moral and constitutional grounds for striking down some existing laws due to their original racist intent. Nonetheless, the likelihood that this particular decision will be appealed means that the case could become an example of how systemic racism works.
Here, the people who held personal racist beliefs – lawmakers in 1929 – are dead and gone. But their racist policies were continued and extended by the government of both political parties, nothing more than the administration of the first non-white president. And now, under a president who has spoken more firmly about righting the racist wrongs of our past than ever before, the government will (more than likely) once again defend the reenactment of policies it admitted, the ruling said, were racist. in their design.
More than anything else, this speaks to the need for the judiciary to follow Judge Du’s lead.
Carrillo-Lopez public defender Lauren Gorman told me she was “thrilled for Mr. Carrillo-Lopez and his family.”
“While the racism and nativism entrenched in the law’s historic record are glaring, it took almost 100 years for a court to probe its scandalous history and attack the constitutionality of the law,” Gorman said. “The decision of the Court is a historic decision, but one of the requirements of our Constitution. “
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