[Nearly 100 years ago, Congress passed a law making it a felony to
reenter the US after being deported. Now a judge has found it too
racist to be allowed.] [[link removed]]

THE GROUNDBREAKING DECISION THAT JUST STRUCK A BLOW TO OUR RACIST
IMMIGRATION LAWS  
[[link removed]]


 

Elie Mystal
August 20, 2021
The Nation
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
* [[link removed]]

_ Nearly 100 years ago, Congress passed a law making it a felony to
reenter the US after being deported. Now a judge has found it too
racist to be allowed. _

, ProtoplasmaKid / Wikimedia Commons / CC-BY-SA 4.0

 

At some level, I have learned to accept that US immigration policy is
racist. And at some level, I’ve learned to accept that it is
“legal” for US immigration policy to be racist, at least from a
Hobbesian perspective, which holds that the state can do whatever it
wants in whatever lands it controls by force.

This country has always had a “preferred” class of immigrants it
wants to attract, while trying to stem the tide of those deemed
undesirable by the white powers that be. We didn’t like the Irish
for a time, then the Chinese, then the Japanese, then the Southern and
Eastern Europeans, and on and on until, latterly, Latinos and Muslims
from anywhere. And at nearly every turn, the overtly racist
immigration restrictions championed by the ruling whites have been
upheld by the courts. Our country’s bigotry is so ingrained in our
immigration laws that decoupling the racism from the law would require
holding even basic immigration restrictions unconstitutional and
essentially starting over.

Remarkably, that is precisely what US District Judge Miranda Du did
this week. In a case called _U.S. v. Carrillo-Lopez_
[[link removed]],
the Nevada judge declared one of our most basic immigration statutes
(Section 1326 [[link removed]]) an
unconstitutional violation of equal protection rights.

For a judge to find a law in violation of the Equal Protection
Clause—to find it essentially “too racist” to be
constitutional—the victim of the law has to show one of two things.
They have to prove that the law, as applied, treats one race
fundamentally differently and worse than others (lawyers call this
“disparate impact”), or they have to show that Congress passed the
law with the intent to racially discriminate.

Judge Du found that Section 1326—which makes it a felony for people
to return to the United States after being denied admission or
deported—failed both tests with regard to Latinx immigrants. The
disparate impact analysis is pretty obvious: We strictly police the
southern border with Mexico, hyper-militarizing it with far more
personnel and resources than we police the northern border with
Canada. Predictably, this leads to more Mexicans and Latinx immigrants
being caught and deported than Canadians. It leads to more Mexicans
and Latinx immigrants being deported than Europeans who may arrive via
points of entry along the Atlantic seaboard.

Section 1326 disproportionality affects Mexican nationals and people
trying to cross the border from Mexico, and there’s really no
credible argument otherwise.

But that’s not all. Du found that this biased impact was exactly
what Congress intended when it passed the law. Section 1326 was first
passed as part of the 1929 “Undesirable Aliens Act” and, as if the
name weren’t enough to tip you off to the racism, Judge Du has
officially confirmed that Congress had impermissible racial bias when
passing that act.

The government all but concedes that point, but contends that Section
1326 was reauthorized in 1952, and that Congress was not motivated by
racism in that instance. Judge Du disagrees. She points to, among
other things, the fact that the 1952 act was passed over a
presidential veto by Harry Truman. Indeed, Truman specifically said
that the 1952 act “would perpetuate injustices of long standing
against many other nations of the world” and “intensify the
repressive and inhumane aspects of our immigration procedures.”
Congress’s refusal to heed those words is one way we can see the
racist intent behind these laws.

The government’s final defense was that even though the law was
passed with racist intent, it could also have been passed without it.
In other words, there are very good, totally not-racist reasons to
discriminate against Mexicans crossing the southern border.

The government argued that there are economic reasons to keep people
from crossing the southern border, as well as a national security
interest in policing that border and deporting those who attempt to
cross it. But Judge Du was having none of it. She said the government
failed to show that Congress was concerned about economic
competition _absent_ racial animus—which means that she doesn’t
think Congress was concerned about immigrants’ taking jobs, only
that it was concerned about _brown_ immigrants’ taking jobs. And
on national security, Du refused to make the same wild accusations
that Donald Trump did when he called Mexicans rapists and criminals.

The opinion is thorough and well-reasoned, and Judge Du’s arguments
are so obvious in retrospect that it’s kind of amazing they aren’t
a staple of the immigration debate in this country. But this is where
Judge Du’s background perhaps becomes important.

DONATE NOW TO POWER _THE NATION_. 

Readers like you make our independent journalism possible.   DONATE
[[link removed]]

Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the
nation after the Vietnam War when she was 9, first to Malaysia, before
eventually making its way to Alabama. She went to Berkeley for law
school and was an employment lawyer in Nevada when Harry Reid and
Barack Obama made her a federal district judge in 2011. I would
imagine that Judge Du looks at the US immigration system with a fresh
perspective, at least as compared to a person like me, who was born
here and has been taught to just accept a background level of bigotry
as an immutable fact of immigration law. One of the more striking
parts of her opinion in this case is the section in which she calls
out other courts for not doing this sooner. She essentially says that
courts in other jurisdictions that have looked at Section 1326 have
blindly accepted the government’s reasoning that the 1952
reauthorization cleansed the statute of its racial bias, without
really looking at the 1952 Congress.

The opinion is brilliant, and I’m going to print it out so I’ll
still have a copy of it when Justice Samuel Alito and the other
conservatives on the Supreme Court reverse it and order Du’s opinion
to be nuked from orbit [[link removed]].
There is, practically speaking, no chance this ruling survives Supreme
Court review. The high court will skate over the disparate impact
analysis by saying that any person, regardless of race, who crosses
the southern border will experience the same over-enforcement. Or the
court will reverse the ruling of racist intent by finding, as other
courts have, that the 1952 Congress did cleanse the statute of racism.
Or they’ll find that the government does have a legitimate and
permissible interest in discriminating against southern border
crossers. After all, the Supreme Court found bigotry to be okay
in _Trump v. Hawaii_, which upheld the Muslim ban, so finding a
reason to uphold Section 1326 will be child’s play for the
conservatives who like a little bigotry in their immigration rulings.

And that’s if the case even makes it to the Supreme Court, which it
probably won’t. Judge Du’s ruling will first be appealed to the US
Court of Appeals for the Ninth Circuit, and I could see it getting
reversed there. It’s unlikely that other liberal judges will even
want to open this can of worms. As I said, Judge Du relies on a
disparate impact analysis, and I can think of at least three Supreme
Court justices who might be in the mood to overturn disparate impact
analysis altogether.

Judge Du is right about the bigotry inherent in our immigration laws,
but conservatives like the bigotry and liberals will be afraid that
trying to stop it will just piss off the conservatives.

But at least this opinion exists now. It’s out there, and future
lawyers and judges can read it and maybe think differently about the
core assumptions at the heart of our immigration system. A lone
federal judge cannot stop 100 years of bigoted policies, but if you
want to know what a truly progressive legal analysis looks like, Judge
Du just spelled one out.

Now, President Biden just needs to read it and go out and nominate 100
judges who agree.

_Copyright c 2021 The Nation. Reprinted with permission. May not be
reprinted without__ __permission_
[[link removed]]_.
Distributed by__ _PARS International Corp
[[link removed]].

_ELIE MYSTAL is The Nation’s justice correspondent—covering the
courts, the criminal justice system, and politics—and the force
behind the magazine’s monthly column “Objection!” He is also an
Alfred Knobler Fellow at the Type Media Center. He can be followed
@ElieNYC._

_Subscribe to THE NATION
[[link removed]]:
Your progressive companion in a Biden administration. Save over 40%
for one year of digital access. You can cancel anytime_

*
[[link removed]]
*
[[link removed]]
*
* [[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web [[link removed]]
Submit via email
Frequently asked questions [[link removed]]
Manage subscription [[link removed]]
Visit xxxxxx.org [[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]