Excerpted From: Ingrid V. Eagly, The Racism of Immigration Crime Prosecution, 109 Iowa Law Review Online 27 (2023) (148 Footnotes) (Full Document)


IngridEaglyEric Fish's Article, Race, History, and Immigration Crimes, is a tour de force. In it, he unearths the racist history of the Undesirable Aliens Act, a law passed in 1929 that criminalized crossing the border without permission. He also calls on lawyers, judges, politicians, and the public to recognize racist origins of the modern criminal law barring entry and reentry of immigrants.

Through careful archival research, and building on related strands of work by path-breaking historians, Fish traces the 1929 border law to “a group of white men who believed in racial eugenics” and sought to stop migration from Latin America. One of these men was South Carolina Senator, Coleman Livingston Blease, a known racist who first proposed the law. Blease did not hide his racist views about Mexicans, saying during a 1928 Senate committee hearing: “I want them kept out. They know when they get over here they have got to behave or we will kill them.” Labor Secretary James Davis, in his role administering the immigration laws, worked by Blease's side on the drafting of a proposal to criminalize unlawful reentry after deportation. Fish characterizes Davis as “more of a genteel racist;” Davis believed in racial eugenics and wrote two books setting forth his views on immigration, warning of “rat-people [who] began coming here, to house under the roof that others built.” The Blease-Davis proposal to criminalize reentry was eventually merged with a related proposal by a third man, Congressman Albert Johnson, to make unlawful entry a misdemeanor. Chair of the powerful House Committee on Immigration and Naturalization, Johnson was also a card-carrying eugenicist, and one of the namesakes of the Johnson-Reed Act of 1924 that set numerical per-country migration limits based on each country's representation in the 1890 census.

The racism that undergirds the Undesirable Aliens Act was on full display in the racial slurs that filled the legislative record leading up to its passage. Legislators referred to Mexicans as “mongrels,” “peons,” and “degenerates” who they said presented a racial problem and threatened the purity of the white race. They warned of “[h]ordes of undesirable immigrants from Mexico” who were coming to the United States, and “not the better or higher-type Mexicans, but generally of the less desirable type, and in many cases the criminal and diseased element.” As Fish explains, the debate around the Act “revealed its purpose: to target Latin American immigrants for punishment and deportation because of their race.” The resulting law achieved the restrictionists' goal by allowing federal prosecutors to use the criminal law as a tool to effectively bar permanent settlement by Mexicans and others from Latin America. Importantly, the new law also satisfied agri-business interests by not penalizing employers for hiring migrant labor to prepare the harvest.

Fish's history of the now nearly century-old Undesirable Aliens Act has enduring relevance today. The law has been reenacted and amended many times, but remains on the books in substantially the same form, found in section 1325 and section 1326 of the federal penal code. Just as in the original law, section 1325 criminalizes the simple act of entering the United States without permission, and section 1326 criminalizes reentering after a prior deportation. While section 1325 is a misdemeanor, section 1326 is a felony, now punishable by up to twenty years in federal prison.

Over time, prosecution of illegal entry and reentry has grown. In the year after the Undesirable Aliens Act was passed, 7,001 people were convicted under the new provision. In the 1950s, prosecutions of entry crimes-- which the Attorney General referred to with the derogatory term “wet-back” cases--again surged. The Department of Justice requested that its budget be nearly doubled in order to bring criminal charges against “Mexican laborers coming across the Rio Grande and at other points along the southern border to seek employment.” During Barack Obama's presidency, prosecutions for illegal entry and reentry grew to forty-three percent of the federal criminal docket. Under the Donald Trump administration, border prosecutions again skyrocketed, this time to a record high of fifty-nine percent of all cases brought in federal courts.

Heavy reliance on the law criminalizing entry and reentry by the federal government--combined with its use almost exclusively against immigrants from Latin America--adds urgency to Fish's call to action. As the United States Sentencing Commission reports, ninety-nine percent of people prosecuted in district court today for illegal reentry are Latino. Additionally, as research by sociologist Matthew Light documents, illegal reentry cases “are punished uniquely in U.S. federal courts,” as they are almost always (ninety-seven percent of cases) punished with incarceration.

Since Professor Fish posted an early draft of his Article online in April 2021, a lot has happened. Federal public defenders throughout the country representing persons charged with unlawful entry and reentry have been busy doing precisely what Fish recommends--recounting the law's racist history and challenging the law's constitutionality. On August 18, 2021, Chief Judge Miranda Du of the District Court of Nevada made headlines when she issued a forty-three page landmark ruling striking down a section 1326 indictment brought against Gustavo Carrillo-Lopez on equal protection grounds. In particular, Judge Du concluded that although the reentry statute is racially neutral on its face, it “has a disparate impact on Latinx persons,” “was enacted with a discriminatory purpose,” and the government failed to show that the law “would have been enacted absent racial animus.” In reaching her finding on racial animus, Judge Du considered both animus that tainted the original enactment of the law in 1929, as well as other evidence of animus at the time the modern reentry law was enacted in 1952 as part of the Immigration and Nationality Act (“INA”) (also known as the McCarran-Walter Act).

On appeal, a three-judge panel of the Ninth Circuit disagreed. In particular, the panel concluded that the district court erred because Mr. Carrillo-Lopez provided insufficient proof that Congress was motivated by discrimination in enacting the reentry statute. Importantly, as discussed further in this Response, the Ninth Circuit's analysis focused on the intent of Congress when the INA was adopted in 1952 and rejected Judge Du's finding that discriminatory intent motivating the 1929 Act taints the modern section 1326 law. Other similar challenges are percolating their way through the courts, but Judge Du was the first--and thus far the only-- court to declare the law unconstitutional.

This Response uses the historical record presented by Professor Fish--together with the legal arguments developed by the parties and amici in the Carrillo-Lopez litigation--as a framework for discussing three central and recurring questions in the immigration law field. First and most fundamentally, Fish and Carrillo-Lopez provoke consideration of the enduring legacy of the plenary power doctrine that has long been used to legitimize and mask discrimination based on race in immigration. Second, Fish's history, especially as seen through the lens of Carrillo-Lopez, calls for examination of the boundary between the core of immigration law, which is generally shielded from constitutional review, and other related areas of law that touch on the lives of noncitizens--such as the criminal law--that enjoy the full bundle of constitutional protections. Third and finally, Fish and the litigation challenging the illegal entry and reentry law invite interrogation of what scholar Kerrel Murray calls “the ‘discriminatory predecessor’ problem.” That is, under what circumstances can a new enactment or revision of a law originally passed with racist intent purge the law of constitutional infirmity? The three Parts of this Response that follow engage each of these key debates, the resolution of which is central to not only the constitutionality of the illegal entry and reentry laws, but also to other areas of law that shape the lives of immigrants in the United States.

[. . .]

Eric Fish has uncovered a detailed and deeply troubling history of what have long been the two most-prosecuted crimes in the federal criminal system. This Response has built on Fish's contributions to analyze the Carrillo-Lopez litigation challenging the federal reentry law on equal protection grounds due to its racist origin. Although the law has thus far survived review, as Daniel Harawa has pointed out, airing the racist history of the Undesirable Aliens Act and subsequent iterations of the reentry law has “forced courts to grapple with the history and explain why it does or does not render the current law unconstitutional.” As a result, the litigation will surely have rippling effects. Informed by Fish's history, defense lawyers may now be more likely to apply a race-conscious approach to defending their clients charged with illegal reentry at other stages in their cases, including in pretrial motions, during voir dire, and at trial. Such strategies could call out the fundamental unfairness of a law that is used in practice today to prosecute almost exclusively immigrants from Mexico and Latin America, and highlight how the law was originally designed to function as a tool for race-based exclusion on the border. Once made aware of the law's history and current disparate impact, federal judges may proceed with more caution when presiding over jury trials or sentencing defendants under these laws. Appreciating how such cases can perpetuate systemic racism, prosecutors may reevaluate the wisdom of bringing these cases in the first instance. And, jurors who learn about the law's unsettling history may refuse to convict.

Professor of Law, UCLA School of Law.