US law based on anti-Latino racism fuels fight against immigration

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LAS VEGAS (AP) As thousands of children were taken from their parents on the southern border during a Trump administration crackdown on illegal crossings, a federal public defender in San Diego set out to find new strategies to combat the longstanding eviction law that fuels family separations.

The resulting legal defense that Kara Hartzler would help draft for years to come, work that continued even after a judge halted general practice at the US-Mexico border in June 2018 was unprecedented.

He exposed Section 1326 of the Immigration and Nationality Act, which criminalizes unlawful re-entry to the United States after deportation, removal, or denial of admission, as racist and a violation of human rights. equal protection guaranteed by the Fifth Amendment.

And it became the legal framework for a groundbreaking August 2021 ruling by Nevada U.S. District Judge Miranda Du. She struck down the law as unconstitutional and discriminatory against Latinos when she dismissed an illegal re-entry charge against Mexican immigrant Gustavo Carrillo Lopez, despite not blocking the app and the lawsuits have not stopped as the government appeals the case.

Du’s 43-page ruling cited much of Hartzler’s legal defense. The record before the court reflects that at no time did Congress confront the racist and nativist roots of Section 1326, the judge wrote.

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Hartzler, who has spent the past decade as a federal public defender in California, said she was blown away when she learned of the decision.

When you’ve worked in law as long as I have, you know that just because you’re legally right doesn’t always mean you win, she said. There are many forces at work in making legal decisions.

The potentially precedent-setting case has been in legal limbo for more than a year as a federal court in California considers the Justice Department’s appeal to defend the law. Despite the ongoing battle in the 9th Circuit Court of Appeals, the Nevada case has shone a spotlight on the little-known story of Section 1326.

It is truly a misunderstood law when you consider the extent to which it is based on an explicitly racist and white supremacist ideology, said Sirine Shebaya, executive director of the nonprofit National Immigration Project.

Section 1326, along with its tort equivalent, Section 1325, which criminalizes unauthorized entry, was enacted by Congress in 1952.

But the law’s origins date back a century to the 1920s, a decade described by Kelly Lytle Hernandez, a UCLA history professor and senior investigator for Section 1326, as a time when the Ku Klux Klan was reborn, Jim Crow comes of age and public intellectuals preach the science of eugenics.

Many of the key elements that made up the legal defense currently being considered by the 9th Circuit came from Hernandez’s findings on the discriminatory history of Section 1326.

In the 1920s, as Congress sought legislation that would block unwanted immigration, the National Origins Act of 1924 was enacted, setting a cap on the number of immigrants who could enter the United States under a system that reserved 96% of slots for European immigrants and included a total ban on Asian immigrants.

However, immigrants from the Western Hemisphere, including Mexico, were exempt from this system. Hernandez, who was called as an expert witness in the Nevada case, said the exception was a compromise between nativist lawmakers and employers who had come to rely heavily on cheap labor from Mexico. .

But before the decade was out, South Carolina Senator Coleman Livingston Blease would orchestrate a new deal with employers that led to the Unwanted Aliens Act of 1929.

Under this new law, unauthorized entry into the United States became illegal, allowing Congress to limit immigration from Mexico without implementing an outright ban.

Blease, Hernandez said, was a proud white supremacist “who advocated for segregation and defended lynching. That alone requires a number of accounts.

Almost a century later, the Department of Justice has acknowledged that the 1929 law was motivated by racism. But during oral arguments in early December before the 9th Circuit, a US government lawyer argued that later revisions like Section 1326 made it constitutional.

Du’s decision, however, points out that the 1952 revision establishing Section 1326 had adopted word for word the language of the 1929 legislation, and since then penalties ranging from prison to permanent deportation have been increased by at least five years. times.

Lawyers for the Justice Department also admitted that Section 1326 bears more heavily on Mexican and Latino individuals, but argued that the disparity is a product of geography, not discrimination, as well as a characteristic Mexico’s proximity to the United States, the history of Mexican employment models. , and other socio-political and economic factors that drive migration from Mexico to the United States.

Between October 2021 and September of this year, the federal government’s fiscal year, 96% of those charged under Section 1326 were from Mexico, Central America, South America and the Spanish-speaking islands of the Caribbean.

Sections 1325 and 1326 cases are among the most prosecuted charges by the federal government, reaching record numbers in fiscal year 2019, when nearly 90,000 people were charged under section 1325 and nearly 25,500 under Section 1326. The number of prosecutions has declined since the start of the COVID-19 pandemic, but the Justice Department continues to prosecute tens of thousands of people each year for illegal re-entry.

In that fiscal year, for example, the Justice Department under the Biden administration prosecuted 13,670 cases under Section 1326. The vast majority of those defendants were charged in border states, including Arizona, New Mexico and Texas.

If you look at this law dispassionately and without political motivations, the facts of the legislation, how it was enacted and its impact on immigrants from Latinx countries, the case is really clear,” said Shebaya, of the National Immigration Project. . a clear violation of equal protections.

There is no deadline for the 9th Circuit to issue its decision on the Justice Department’s appeal.

In the meantime, the US government continues to pursue Section 1326 cases across the country because Du’s order did not include an injunction on the law.

It is still quite outrageous that they continue to prosecute them, Shebaya said, given a court order declaring them unconstitutional.

At the same time, some of the thousands of children separated from their parents under the Trump administration have still not been reunited.

Under Trump’s immigration policy, all adults crossing the border without permission were charged with illegal entry. Because children cannot be imprisoned with their parents, Health and Social Services took custody of the children. No reunification system has been put in place.

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