LAS VEGAS (AP) — As thousands of children were taken from their parents on the southern border during the Trump administration’s crackdown on illegal crossings, a federal public defender in San Diego has decided to find new strategies to deal with a longstanding deportation law fueling family separations.
The resulting legal defense that Kara Hartzler will help prepare in the coming years—a work that continued even after a judge suspended the general practice at the U.S.-Mexico border in June 2018—was unprecedented.
He exposed Section 1326 of the Immigration and Nationality Act, which criminalizes illegal return to the US after being deported, expelled, or denied entry as racist and a violation of Fifth Amendment equal protection rights.
And it became the legal basis for an unprecedented decision in August 2021 by Nevada District Judge Miranda Du. She dismissed the law as unconstitutional and discriminatory against Hispanics when she dismissed an illegal re-entry charge against Mexican immigrant Gustavo Carrillo López, although she did not block enforcement and the prosecution did not stop as the government appealed the case.
Du’s 43-page ruling cites much of Hartzler’s legal defense. “The report before the Court shows that Congress has never challenged the racist, nativist roots of section 1326,” the judge wrote.
Hartzler, who has spent the past decade as a federal public defender in California, said she was shocked when she learned of the decision.
“When you’ve been in the legal profession for as long as I have, you know that just because you’re legally right doesn’t mean you always win,” she said. “There are a lot of forces involved in making legal decisions.”
The potentially precedent-setting case has been in limbo for more than a year as a federal court in California hears the Justice Department’s appeal in defense of the law. Despite the ongoing battle in the 9th Circuit Court of Appeals, the Nevada case brought the little-known history of Section 1326 to national attention.
“This is a really poorly understood law when you think about the extent to which it is based on an explicitly racist white supremacist ideology,” said Sirin Shebaya, executive director of the nonprofit National Immigration Project.
Section 1326, along with torts section 1325, which criminalizes tampering, was passed by Congress in 1952.
But the law’s origins can be traced back a century to the 1920s—a decade described by UCLA history professor and Section 1326 lead investigator Kelly Little Hernandez as “the time when the Ku Klux Klan was resurgent, Jim Crow came of age, and public intellectuals preached the science of eugenics”.
Many of the key elements that have shaped the legal defense now being considered by the 9th Circuit stem from Hernandez’s findings about the discriminatory origins of Section 1326.
When Congress targeted legislation in the 1920s that would block “unwanted” immigration, the National Origins Act of 1924 was passed, placing a limit on the number of immigrants who could enter the US under a system that reserved 96% of the seats for immigrants from Europe. and included a total ban on immigrants from Asia.
However, immigrants from the Western Hemisphere, including Mexico, were exempted from this system. Hernandez, who was called as an expert witness in the Nevada case, said the exclusion was a compromise between nativist lawmakers and employers who relied heavily on cheap labor from Mexico.
But before the end of the decade, South Carolina Senator Coleman Livingston Bleese orchestrated a new deal with employers that led to the passage of the Unwanted Aliens Act of 1929.
Under this new law, unauthorized entry into the US was made illegal, allowing Congress to restrict immigration from Mexico without an outright ban.
Bleese, according to Hernandez, was a “proud white supremacist” who advocated segregation and advocated lynching. “That has to be taken into account.”
Nearly a century later, the Justice Department acknowledged that the 1929 law was motivated by racism. But in an oral argument in early December before the 9th Circuit, a US government attorney argued that later amendments such as section 1326 made it constitutional.
However, Du’s ruling states that the 1952 revision establishing Section 1326 adopted the wording of the 1929 law verbatim, and since then, penalties ranging from imprisonment to indefinite deportation have been escalated at least five times.
Lawyers for the Department of Justice also acknowledged that Section 1326 “affects Mexicans and Hispanics more strongly”, but argued that this discrepancy is “a product of geography, not discrimination”, as well as “a sign of Mexico’s proximity to the United States, the history of employment patterns in Mexico and other socio-political and economic factors that stimulate migration from Mexico to the United States.”
Between October 2021 and September last year, the federal government’s fiscal year, 96% of individuals indicted under Section 1326 were from Mexico, Central America, South America, and the Spanish-speaking Caribbean.
Sections 1325 and 1326 cases are among the most prosecuted by the federal government, hitting record highs in fiscal year 2019 with nearly 90,000 people charged under section 1325 and nearly 25,500 under section 1326. The number of prosecutions has declined since prosecutions began. . COVID-19 pandemic, but the Department of Justice continues to prosecute tens of thousands of people every year for illegal re-entry.
For example, this fiscal year, the Biden administration’s Justice Department filed 13,670 1326 cases. The vast majority of these defendants were charged in border states, including Arizona, New Mexico, and Texas.
“If you look at this law impartially and without political motives, the facts of the legislation, how it was passed and its impact on immigrants from Latin American countries, the case is really clear,” said Shebaya of the National Immigration Project. “There is a clear violation of equal protection.”
The 9th Circuit does not have a deadline for a decision on the Justice Department’s appeal.
Meanwhile, the US government continues to hear Section 1326 cases across the country because Du’s order did not contain an injunction against the law.
“It’s still pretty outrageous that they continue to persecute them,” Shebaya said, “given the court’s ruling that they’re unconstitutional.”
At the same time, some of the thousands of children separated from their parents during the Trump administration have yet to be reunited.
Under Trump’s immigration policy, all adults who crossed the border without permission were charged with illegal entry. Since children cannot be imprisoned with their parents, the Health and Welfare Service took over custody of the children. The reunification system was not put in place.