Scholars Describe Racist Origins of Unlawful Reentry Law in Supreme Court Amicus Brief

Legislative History Shows Statutes Based Entirely on Desire for Racial Control

April 1, 2021

Three leading scholars of the history of immigration law from UCLA and Columbia University filed an amicus brief with the Supreme Court in United States v. Palomar-Santiago. Their brief describes the explicitly racist, anti-Mexican origins of the federal law criminalizing unlawful reentry after deportation. The scholars were represented by the new Center for Immigration Law and Policy (CILP) at the UCLA School of Law and the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP.

The brief draws heavily on the research of the three scholars: history professors Kelly Lytle Hernández (UCLA) and Mae M. Ngai (Columbia), and UCLA law professor Ingrid Eagly. It looks specifically at the racist ideology of the Congressmen who enacted Sections 1325 and 1326 of the Immigration and Nationality Act. Those statutes gained significant attention during the last presidential campaign, when Julian Castro and other candidates called for the repeal of Section 1325.

As the professors" amicus brief shows, Congress enacted those statutes in 1929 explicitly to deal with "the Mexican problem." Supporters described Mexican immigrants as "rat men" and "pigeons" who would "dilute" the "race stock of the country." The laws were championed by "Nativists" in Congress, whose primary objective was to keep the U.S. population as "white" as possible, and the agriculture industry, which profited from the hard work of Mexican immigrants, but also shared the Nativists" racial goals. The history also shows that both groups were virulently anti-Black.

The brief explains that the provisions criminalizing unauthorized entry and reentry were deliberately "designed to target people crossing the Southwest border, rather than those from Europe who overstayed their visas. Both statutes still work to authorize extraordinarily harsh results against those who cross the Southwest border, the vast majority of whom are Mexican immigrants."

Kelly Lytle Hernández, Professor of History, African American Studies, and Urban Planning at UCLA, said: "Over the years, the racist origins of Sections 1325 and 1326 have been buried and the policy built on them normalized. But the criminalization of border crossing has an enduring impact on the lives of immigrants and their families."

"To create a just and humane set of immigration laws, we must reckon with the racist origins of our system," said Ahilan Arulanantham, Faculty Co-Director of the Center for Immigration Law and Policy at the UCLA School of Law. "How to do this, of course, is the crucial issue. And it"s exactly the type of question we plan to interrogate and answer at the Center for Immigration Law and Policy."

Read the amicus brief.

Learn about the Center for Immigration Law and Policy, and sign up to receive notice about ways to participate in the conversation, including the Center's conference on "The Biden Administration's Immigration Policy: the First 100 Days and Beyond" in April and May.

Founded in 2020, the Center for Immigration Law and Policy (CILP) at the UCLA School of Law expands the law school"s role as a national leader in immigration law and policy. The Center generates innovative ideas at the intersection of immigration scholarship and practice; serves as a hub for transforming those ideas into meaningful changes in immigration policy at the local, state, and national level; and empowers students with unique opportunities for experiential learning through work with academics, practitioners, policymakers, and activists. In addition to engaging in strategic litigation, the Center will publish briefings and reports on immigration policy, host conferences and symposia featuring leading national scholars, and launch immigration law training opportunities for judges and legislators.


Hayley Burgess, 626-497-2341
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