Can the Courts Decriminalize Immigration?

The new series From “Crisis” to Futurity is aimed at pushing forward our thinking and action about immigration and borders. Read series curators Geraldo Cadava, A. Naomi Paik, and Catherine S. Ramírez’s introduction here.
In 2019, immigration crimes represented almost 60 percent of all federal prosecutions. Yet the racism of the underlying laws may be their undoing.

In 2011, prosecutions for unlawful entry overtook federal drug prosecutions as the most commonly prosecuted federal crime. Add in prosecutions for reentering after a deportation, and, for at least a decade, almost half of all federal prosecutions have been for immigration-related crimes.1 Following a brief downturn during the Obama administration, the Trump administration scaled up criminal prosecutions for immigration offenses to unprecedented levels. In 2019, immigration crimes represented almost 60 percent of all federal prosecutions.2

In fact, US policymakers, beginning in the 1980s, have made federal prosecutions of immigrants under sections § 1325 (unlawful entry) and § 1326 (reentering after deportation) into a pillar of the carceral state. And the significance of these prosecutions is more than just the numbers. Almost all prosecutions target Latinx immigrants, with devastating economic and social consequences for Latinx American communities, including the breakup of mixed-status families. They also fuel stereotypes about Latinx criminality that worsen the racism plaguing the nation.

These federal actions, then, don’t just expand mass incarceration—they do so with an overwhelming racial impact. The racism of these prosecutions, however, may end up being their undoing.

Kara Hartzler, a public defender out of San Diego, belongs to a growing group of lawyers fighting a years-long, uphill battle to decriminalize immigration. In 2020, to their great surprise, conservative justices on the Supreme Court opened a door. In Ramos v. Louisiana, 140 S. Ct. 1390 (2020), the court held that laws passed with racial animus are unconstitutional. Hartzler and other public defenders across the country, with the help of historians and legal scholars, saw an opportunity to undo two sections of law—8 USC § 1325 and § 1326—used to criminally prosecute border crossers for immigration offenses. Their efforts not only protect the rights of immigrants but also take on mass incarceration.


In 2018, Hartzler and her colleagues in the San Diego Public Defender Office, reeling from the spiking cases under the Trump administration, looked for mitigation tools to help their growing list of immigrant clients. Their work soon led them to take on a wider, systemic challenge to the criminalization of immigrants. But they faced an uphill battle: the laws and policies had a decades-long history, and, at the same time, the public defenders were responding to the Trump-era escalation.

One of the public defenders’ first efforts was to mount a legal challenge to Operation Streamline, a federal prosecution program launched in 2005 under the George W. Bush administration.  Under Streamline, federal judges conduct mass hearings in which they criminally prosecute up to 80 people at once.3 Streamline proceedings, until the Trump presidency, were concentrated in eight federal districts along the US-Mexico border, including Del Rio, Texas; Yuma, Arizona; Tucson, Arizona; Las Cruces, New Mexico; El Paso, Texas; Laredo, Texas; McAllen, Texas; and Brownsville, Texas.4

Federal Prosecutions for Illegal Entry in US Magistrate Courts, 2001–20195

During the Obama administration, federal officials continued the Bush-era policy of criminally prosecuting migrants en masse under Streamline. This was done partly in hopes of securing GOP support for comprehensive immigration reform, which never came. “As hope for an immigration overhaul faded,” UCLA law professor Ingrid Eagly notes, “President Obama began to gradually shrink his administration’s involvement in the Streamline initiative.”6 The numbers prosecuted declined between 2013 and 2017.7

The Trump administration turned prosecution of § 1325 (unlawful entry), along with the mass trials of Operation Streamline, into a cornerstone of its wider racist anti-immigrant policy. Enforcement of § 1325 provided the legal justification for Trump officials to separate families and deny asylum to people fleeing war and violence. Criminal prosecutions under Operation Streamline grew more numerous than ever. In 2018, the Trump administration convicted more than 80,000 people, and in 2019, more than 91,000.8

In order to increase convictions, the Trump administration expanded Operation Streamline into new districts, including San Diego. Hartzler and her colleagues began documenting discriminatory practices they witnessed in Streamline proceedings. Yet they were hamstrung—by legal precedent—from challenging the racism of Streamline head-on.

To circumvent this obstacle, the San Diego public defenders framed many of their cases as alienage-based equal-protection claims. Migrants in Streamline proceedings are denied procedural protections open to citizens and lawfully present immigrants facing prosecution for other kinds of crimes. While other defendants charged with federal petty offenses are nearly always cited, released, and able to negotiate a dismissal without ever serving jail time, migrants charged with the petty offense of illegal entry are arrested, detained, convicted, and sentenced to jail time.

The San Diego office began to share their work across the country: they drafted and widely circulated template motions to aid lawyers defending immigrant clients, and regularly offered trainings for criminal-justice attorneys and public defenders.

Then, in 2020, the Supreme Court unexpectedly opened the door to directly challenging the criminal prosecutions of immigrants on racial grounds. In Ramos v. Louisiana, the court struck down jury laws based on racial animus, which had “survived reenactments,” to use a legal term that means revision in later laws. None other than conservative justice Kavanaugh, who penned a partial concurring opinion, stated that “this Court has emphasized time and again the ‘imperative to purge racial prejudice from the administration of justice.’” In this decision, as Kavanaugh put it, the court decided against sticking with law that “tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects.”

Hartzler and others soon realized that Ramos opened the door to challenging § 1325 and § 1326. If they could prove racial animus, then perhaps the court would strike down these sections of immigration law, too.

Federal actions don’t just expand mass incarceration—they do so with an overwhelming racial impact. The racism of these prosecutions may end up being their undoing.

Challenging the racial animus of today’s laws that criminalize immigration may seem difficult. But the history of these laws’ origins demonstrates that racism has always been explicitly at their heart.

Historians (including Kelly Lytle Hernández, Mae Ngai, Lisa Y. Ramos, Natalia Molina, and S. Deborah Kang) have already demonstrated the racial animus in the historical origins of § 1325 and § 1326. This racism started as far back as the Undesirable Aliens Act of 1929.

In the 1920s, two powerful lobbies in Congress clashed over immigration restrictions. Nativists—who counted the KKK among their supporters—favored halting almost all immigration, except for northern European immigrants of Anglo-Saxon heritage. They drew on eugenics, the same pseudoscience that motivated Adolf Hitler, to justify restrictions on immigration from Asia and central and southern Europe. Yet nativist efforts to include restrictions on Mexican immigration were blocked by a second lobby: western agribusiness, which relied on cheap labor.

Nativists and agribusiness leaders disagreed on immigration restrictions. But what they did agree on was a belief in white supremacy and the inferiority of people of Mexican descent.

In 1929, a white-supremacist senator from South Carolina named Coleman Livingston Blease brokered a compromise in the form of the Undesirable Aliens Act of 1929. It made unlawful entry a misdemeanor punishable by a $1,000 fine and up to one year in prison, and it made returning to the US after a deportation a felony, punishable by a $1,000 fine and up to two years in prison.

This criminal law, Blease proposed, could be used to control Mexican migration. The new law handed agribusiness a tool to control Mexican labor: they could remove laborers when not needed or if they questioned unfair labor practices. The law satisfied the nativists, too, because it would be used to target primarily Mexican immigrants who crossed the nation’s southern border.


The 1929 law was created with clearly racist intent. But what Hartzler and other lawyers still have to prove to judges is that this intent survived later revisions. Here, historians and legal scholars are working alongside public defenders to gather evidence. Their research reveals that, far from removing racial animus, lawmakers magnified it, eventually weaving it into the fabric of mass incarceration.

For example, after studying the 1952 reenactment of the 1929 law, scholars Kelly Lytle Hernández, Ingrid Eagly, and Mae Ngai found that Congress “made unlawful entry and reentry easier to prosecute, thus exacerbating rather than diminishing their racially discriminatory harm.”9 In the 1930s, federal authorities prosecuted roughly 44,000 Mexican immigrants.10

Some in Congress wanted even more prosecutions. One problem, to their minds, was the fact that some “jurors might be hostile to criminal enforcement of immigration laws against Mexican economic migrants.”11 To address this hesitancy, lawmakers in 1952 dropped the sentence for unlawful entry to six months, making it into a petty offense. The lower sentence removed the constitutional right to a jury trial.

Lawmakers continued to worry that budget limitations kept officials from pursuing mass prosecutions. And they continued to clash with industrial and agribusiness leaders. These industries, after all, used low-wage, racialized Mexican labor, just as they used immigration officials to protect that labor supply, rather than undermine it with prosecutions.12

Lawmakers passed the next four reenactments of the original 1929 law as part of the nation’s War on Drugs. These acts decisively linked immigration crimes into the nation’s emerging system of mass incarceration.13 Congress created the category of aggravated felony, which would drive up deportations and contribute to the rise in § 1326 violations, as well as enhance penalties for prosecutions under § 1326 in the Anti-Drug Abuse Act of 1988, the Immigration Act of 1990, the Violent Crime Control and Law Enforcement Act of 1994, and the Antiterrorism and Effective Death Penalty Act of 1996. Immigrants violating § 1326 thereafter have faced sentences of up to 20 years. And, unlike in the 1950s, Congress has appropriated millions and millions annually since the 1990s to fund prosecutions, detention, and imprisonment of § 1325 and § 1326 violations.

New research by historian S. Deborah Kang is bringing to light the discriminatory purpose of these four reenactments. For instance, Kang uncovers racially motivated decisions by senators Lawton Chiles (D-FL) and Bob Graham (D-FL), and Representative Bill McCollum (R-FL) to draft legislation on immigration-related crimes. “The legislative history,” Kang writes, “reveals that their racial animus toward Haitian and Mariel Cuban refugees motivated [these members of Florida’s congressional delegation to] revise the criminal penalties for the reentry of removed aliens.”14

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Today, therefore, legal challenges to § 1325 and § 1326 are based on the original intent of racial animus, alongside the ongoing intent in each of the reenactments. Such challenges, in 2021 alone, are pending in California, Oregon, Louisiana, Texas, Idaho, Washington, and Nevada. Public defenders like Hartzler—with their strategy of challenging the constitutionality of § 1325 and § 1326 based on racial animus—have emerged as important allies to immigrants, their families, and communities, who have all long endured and fought the racism at the heart of the nation’s criminalization of immigrants.

If successful, these legal challenges could bring about change more quickly than legislative action, because they would bypass congressional gridlock. In so doing, public defenders have the potential to undercut a key segment of mass incarceration—by decriminalizing migration.

 

This article was commissioned by Catherine S. Ramírez. icon

  1. Doug Keller, “Re-thinking Illegal Entry and Re-entry,” Loyola University Chicago Law Journal, vol. 44, no. 1 (2012), p. 67.
  2. Immigration-related crimes totaled 121,589 out of 206,448 federal prosecutions. Ingrid Eagly, “The Movement to Decriminalize Border Crossing,” Boston College Law Review, vol. 61, no. 6 (2020), p. 1977, note 37.
  3. Joanna Lydgate, “Assembly-Line Justice: A Review of Operation Streamline,” policy brief, Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity, January 2010.
  4. Lydgate, “Assembly-Line Justice.”
  5. Eagly, “The Movement to Decriminalize Border Crossing,” p. 1984.
  6. Eagly, “The Movement to Decriminalize Border Crossing,” p. 1985.
  7. Patrisia Macías-Rojas, “Liberal Policies, Punitive Effects: The Politics of Enforcement Discretion on the US-Mexico Border,” Law and Social Inquiry, vol. 46, no. 1 (2021).
  8. Eagly, “The Movement to Decriminalize Border Crossing,” p. 1985.
  9. Brief for Professors Kelly Lytle Hernández, Mae Ngai, and Ingrid Eagly, United States v. Palomar-Santiago, March 31, 2021, p. 23.
  10. Becky Little, “How Border-Crossing Became a Crime in the United States,” History.com, July 1, 2019.
  11. Keller, “Re-thinking Illegal Entry and Re-entry,” p. 84.
  12. Kelly Lytle Hernández, Migra! A History of the US Border Patrol (University of California Press, 2010); S. Deborah Kang, The INS on the Line: Making Immigration Law on the US-Mexico Border, 1917–1954 (Oxford University Press, 2017).
  13. Patrisia Macías-Rojas, From Deportation to Prison: The Politics of Immigration Enforcement in Post–Civil Rights America (NYU Press, 2016).
  14. Affidavit of Dr. S. Deborah Kang, Anne Stark and Chester Watson Associate Professor of History, University of Texas at Dallas, United States of America v. Juan Rendon Rodriguez, case no. 5:20-cr-00526-XR (W.D. Tex. April 26, 2021), p. 25.
Featured image: U.S. Customs and Border Protection, Mexico Repatriation Flight (2020). Photograph by Jerry Glaser / Flickr