Congress Must Confront Racist History Of Illegal Reentry Statute

Criminal reentry statute and ICE
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Photos: Wallin & Klarich\YouTube\ICE

LOS ANGELES, CA – This week, the Center for Immigration Policy, the Aoki Center for Critical Race and Nation Studies, and the Southern Poverty Law Center filed an amicus brief in the United States Court of Appeals for the Ninth Circuit in United States v. Rodrigues-Barios, a case involving a racial justice issue of enormous significance.

Mr. Rodrigues-Barios, the criminal defendant in the case, has argued that the criminal illegal reentry statute—the most prosecuted federal crime in the United States, and a key driver of mass incarceration for Mexicans in the United States—is unconstitutional because it was enacted to discriminate against Mexicans based on their race.

Mr. Rodrigues-Barios’ brief presents substantial historical evidence in support. Congress first enacted the illegal reentry statute in 1929 explicitly to keep the “Mexican race” out of the United States, it explains. Supporters called for the “protection of American racial stock from change through mongrelization.” Supporters also called Mexicans and other non-white groups “rat men” who were “illiterate, unclean and pionized masses.” Unless they were excluded using the law, they said Mexicans would “poison the American citizen.”

Those statements were made nearly one hundred years ago, but the law continues to work as intended to this day. In many years, approximately 99% of those prosecuted under the law are Latinos, overwhelmingly Mexicans.

Our amicus brief therefore addresses a critical question: is the racism motivating the law’s original enactment still relevant nearly 100 years later? As the brief explains, the answer is “yes.” Under controlling Supreme Court authority, to purge racism from our laws, Congress must “consciously confront” their racist origins and deliberately choose to repeal, modify, or reenact laws in light of their discriminatory history and on-going effects.

“The approach we advocate is not only required by governing law, but also has the benefit of forcing legislators to understand the on-going effects of discriminatory laws and policies in the immigration realm,” said Ahilan Arulanantham, Faculty Co-Director of the Center for Immigration Law and Policy. “A legal rule that permits Congress to reflexively reenact laws that were motivated by racism would perpetuate, rather than correct, the white supremacy that motivated too many of our very oldest immigration laws.”

While there are several lawsuits challenging the racist origins of the illegal reentry statute all around the country, a federal judge in Nevada recently declared it unconstitutional due to its racist origins.

The amicus brief can be read in its entirety here.

Founded in 2020, the Center for Immigration Law and Policy (CILP) at the UCLA School of Law expands the law school's role as a national leader in immigration law and policy, generating innovative ideas at the intersection of immigration scholarship and practice and serving as a hub for transforming those ideas into meaningful changes in immigration policy. 

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