Felony Reentry Immigration Law Is Unconstitutional Due to Racist Origins, Judge Rules

by Walter Ewing

A federal judge ruled for the first time in U.S. history that a provision of U.S. immigration law which makes it a felony for someone to reenter the United States after having been deported is unconstitutional because of its racist origins.

Since 1929, U.S. immigration law has made it a misdemeanor to “unlawfully enter” the country and a felony to “unlawfully reenter” the country after being deported. In recent years, these two “entry-related offenses” have made up the majority of all criminal prosecutions in federal court.

In the August 18 ruling, Judge Miranda Du of the U.S. District Court for the District of Nevada dismissed the federal government’s case against Gustavo Carrillo-Lopez, who was indicted in 2020 for being present in the United States in violation of a previous deportation order. Judge Du held that the reentry provision “was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons.” As a result, she ruled that the provision violates the U.S. Constitution’s guarantee of equal protection under the law.

Judge Du’s ruling described the racist history of the reentry provision. At the time the provision was first enacted into law, the U.S. immigration system was based on an explicitly racist quota system intended to keep southern and eastern Europeans out of the United States. The lawmakers and so-called scientific experts who helped create this system were firm believers in eugenics: the idea that white people whose ancestors came from northern and western Europe are a distinct race that is genetically superior to people from other parts of the world.

Judge Du’s ruling also points out that the law which made unlawful entry a felony—the Undesirable Aliens Act of 1929—was explicitly intended to keep Mexicans out of the country. And the lawmakers who drafted and supported the law were open about the fact that they wanted to keep Mexicans out because they believed Mexicans were racially inferior to white Americans.

Even government prosecutors in the case decided by Judge Du conceded that the 1929 law was discriminatory in intent.

The 1929 law was superseded by the Immigration and Nationality Act of 1952. However, the 1952 law incorporated the reentry provision of the 1929 law without rejecting or even acknowledging its racist origin. In fact, Judge Du pointed out that supporters of the 1952 law were also openly racist and commonly referred to Mexicans using racial slurs like “wetbacks.”

One of the expert witnesses called by the defense in the case decided by Judge Du emphasizes just how ingrained racism is in U.S. immigration policy. Benjamin Gonzalez O’Brien, a political scientist at San Diego State University, says that “it’s fundamentally impossible to separate race and racism from immigration policing.” In his opinion, U.S. immigration policy has always been guided by “the desire to shape the racial and cultural characteristics of this country.”

The ruling by Judge Du is a stark reminder that immigration policy in this country is not, and never has been, color blind. In fact, many of the immigration policies that are still on the books were designed by policymakers whose primary goal was to keep America as white as possible.

This post originally appeared on Immigration Impact .Reprinted with permission.


About The Author

Walter Ewing is an Editor and Writer at the American Immigration Council. Walter has authored numerous reports for the Council, including The Criminalization of Immigration in the United States (co-written in 2015 with Daniel Martinez and Ruben Rumbaut), which received considerable press attention. He has also published articles in the Journal on Migration and Human Security, Society, the Georgetown Journal of Law and Public Policy, and the Stanford Law and Policy Review, as well as a chapter in Debates on U.S. Immigration, published by SAGE in 2012. Walter holds a Ph.D. in Anthropology from the City University of New York (CUNY).


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