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Opinion: Challenging the racist underpinnings of laws criminalizing undocumented immigration

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Eleven years ago, Yobani Barceñas Rumualdo, an undocumented Mexican man in his early 20s, was charged in South Texas with conspiracy to commit aggravated robbery. He was convicted and sent to Huntsville. After he served his time, he was deported to Mexico and told he’d be punished if he were caught crossing the border again. He crossed anyway and was picked up in Tucson in 2017. He was charged with violating 8 U.S. Code 1326 –– or 1326 for short. He served more time, then got deported again. He tried to sneak back but got caught once more — this time in El Paso County. Again he was charged under the same criminal statute.

Section 1326 is a federal felony law that bans undocumented people from re-entering the United States if they’ve previously come in illegally and been caught and deported. The law can also be used against immigrants caught in the United States after being deported for committing a crime. The penalty for the latter group can be as high as 20 years in prison, but back in 2017 the Arizona judge gave Barceñas Rumualdo 10 months. 

After he served his time he tried to settle down in Mexico. He opened a wedding and quinceañera business and was getting it off the ground, but terrible things started happening. Gangs began charging him “cuota’ — extortion fees. One of his uncles had a similar experience and was murdered. Then COVID hit, and its lockdowns. No more weddings or quinceañeras. 

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Barceñas Romualdo went bankrupt. Desperate to earn money for his family — he now had three children — he crossed the border in July 2020, into the Lower Valley, and hid in a cotton field. A Border Patrol agent caught him. He was now facing his second 1326 charge.

On the border, illegal-entry prosecutions like those against Barcenãs Rumualdo are legion. From San Diego to El Paso to Brownsville, hundreds of thousands of people in the last 15 years have been charged and convicted, and virtually all their cases have been ignored by the media and the public. 

A striking exception was the intense attention paid to the short-lived “family-separation” fiasco under the Trump administration. Children were taken from their mothers and fathers after the parents were arrested. Many of the adults were charged under a federal misdemeanor law that bans even first-time border crossing. It is called 8 USC 1325, and it pairs with 1326.

Barceñas Romualdo didn’t cross with any kids. Even so, his case is noteworthy because his public defender in El Paso, Erik Hanshew, tried to get the indictment thrown out. Hanshew did this by arguing that the illegal-entry and re-entry laws are racist and therefore violate the U.S. Constitution’s Fifth Amendment, the Due Process Clause. It guarantees equal protection under criminal law to all persons, regardless of their immigration status. 

Hanshew got the idea to make this argument in 2020, after he became part of a novel collaboration among lawyers, activists and scholars nationally who are fighting to invalidate 1325 and 1326. You may have heard about one such case earlier this year, when a federal judge in Nevada ruled that 1326 is unconstitutional. 

U.S. District Judge Miranda Du

In her ruling, Judge Miranda Du wrote that the original impetus for 1326 was a law passed years ago with the clear intention of discriminating against Mexicans. She added that a later version, enacted in 1952, continued the racism, while yet a newer revision, enacted in 1990, did not seem racist on its face but failed to examine the problematic history of the earlier statutes. Du questioned whether 1326 serves any rational purpose today. 

These are all dramatic arguments, but the public defenders are facing an uphill battle to end not just 1326, but also 1325. Nevada aside, if the challenges filed so far in several courts were a baseball game, they would have a vanishingly low batting average. Even so, the people trying to invalidate these criminal statutes consider their efforts worthwhile. 

The man whose case led to the Nevada ruling is Gustavo Carillo Lopez. He got into similar legal trouble as Barceñas Rumualdo, the El Paso defendant. 

Carillo Lopez, also a Mexican, was charged with illegal entry and then re-entry, most recently in 2012. Then he was caught in the United States again, when he was arrested in 2019 on drug and firearms charges. That arrest yielded another 1326 charge — the one which led Judge Du to find the law unconstitutional. The day after she did so, the government filed an appeal to the Ninth Circuit Court of Appeals. In the meantime, no one in Nevada can be prosecuted under 1326.

Activists engage to challenge the law

That situation resulted from efforts by many lawyers, community activists, and scholars nationally. Their challenge movement began in about 2015 and was pioneered by the activists. They included people from Mijente, a national Latinx organization that maintains a strong presence in Arizona; and Grassroots Leadership, in Texas. 

These and other groups started doing political work to get 1325 and 1326 repealed. Then they branched out. By 2018, they were meeting in Tucson and Austin with concerned public defenders — including Kara Hartzler, who works in San Diego. Everyone brainstormed, not just about how to get legislators to repeal the laws, but also about courthouse strategies. 

From their day-to-day work with immigrants, everyone at these meetings had concluded that 1325 and 1326 are deeply discriminatory. And, though some of the people targeted have been traveling in families, the laws’ main focus is on young men crossing the border on their own. 

In some cases, 1325 and 1326 charges are coupled with convictions for more conventional crimes like drug possession or distribution, driving under the influence, domestic violence, and robbery. But many other people have no criminal records at all — except for prior 1325s and 1326s. 

The Justice Department has been using these laws with great intensity since the George W. Bush administration. From 2004 to 2019 over a million people were prosecuted, and by the end of that period, 1325 and 1326 were the top charges in two-thirds of all federal prosecutions. 

The COVID pandemic has led to drastic reduction in prosecutions, but that is only because people caught illegally entering and re-entering the United States at the Southern border are being immediately expelled without being put through either the immigration or criminal justice system. 

As the country recovers from COVID, we can expect 1325 and 1326 numbers to climb again. The anticipated increase will again raise questions about whether implementing these laws is a good use of Justice Department resources that could be better used to prosecute traditional crime. 

A white supremacist’s role in criminalizing immigration

Implementing 1325 and 1326 is also ethically revolting, not to mention very expensive. In magistrate courts on the border since 2005, dozens and often scores of shackled immigrants have pleaded guilty to 1325 and been sentenced en masse in just minutes, in a process called “Operation Streamline.” 

I’ve witnessed these proceedings. They look less like due process and more like kangaroo courts. The cost to taxpayers has been billions of dollars. The government often justifies the high price by claiming that enforcement of 1325 and 1326 deters people from immigrating illegally. Yet according to studies, evidence of deterrence is shaky to non-existent.

And then, there’s the laws’ explicitly racist history — which the activists and lawyers had never heard of until right after the 2019 Democratic presidential debates. 

Julian Castro

 On the first night of the debates, in late June, candidate Julian Castro called on his opponents to support the abolition of 1325. His urging followed lobbying by Mijente, said Jacinta Gonzalez, the group’s senior campaign organizer. “We interviewed candidates Sanders, Warren and Castro” about 1325, she said. The group also had a separate meeting with Castro’s staff. 

On the evening of June 26, 2019, Castro told the world about the law and the need to abolish it. Next day, the Washington Post published a long article describing 1325’s Jim Crow origins, with stomach-turning details about its sponsor. The source for the revelations was a history professor at UCLA, Kelly Lytle Hernández. She is an expert on the racist criminalization of Blacks and Mexicans. Her work has earned her a MacArthur genius award. 

Lytle Hernandez has detailed how the origins of 1325 and 1326 date to 1928 and to South Carolina Sen. Coleman Livingston Blease. He was a virulent white supremacist who supported lynching and once read a grotesquely racist poem in the Senate that was studded with the N word. 

Sen. Coleman Blease

In 1928 Blease introduced a bill that came to be called the Undesirable Aliens Act. It explicitly aimed to keep Mexicans out of the United States. Blease’s work on the bill was supplemented with efforts by Texas Senator John Box. He embraced theories lifted from eugenicists like Dr. Harry Laughlin, who presented a report to Congress claiming that the “bad blood” of inferior racial groups was a threat to the country, and “immigration control” was “the greatest instrument which the Federal Government can use in promoting race conservation of the Nation.” 

Box claimed that Mexican immigrants were “badly infected with tuberculosis and other diseases; there are many paupers among them; there are many criminals.” Their presence in the United States, he said, was “breeding another one of those great race questions.”

The Undesirable Aliens Act became law in 1929. It made undocumented re-entry a felony punishable by up to two years in prison.The act was the first U.S. “crimmigration” law: the first ever to add criminal penalties to deportation for undocumented immigration. It was aimed mainly at Mexicans on the southern border. 

The law was amended in 1952. The new version codified felony criminalization of undocumented repeat entrants as 8 U.S. Code 1326. It also separated out first-time entry as a misdemeanor and labeled it as 1325.

 In lawmaking by Congress during run-up to the Immigration and Nationality Act of 1952, the eugenics language of the 1920s discussions disappeared. But it was replaced by legislators making frequent, racist-tinged references to “wetbacks.” 

In addition to 1325 and 1326, the 1952 INA contained nationality quotas that grossly discriminated against people from Asia and Africa. President Harry Truman called the INA racist and vetoed it, but Congress overrode his veto. (The racist quotas were not abolished until 1965.)

Still later, in 1990, an updated immigration law was enacted; it left intact the earlier criminalization of mostly Latinx immigrants who crossed the Southern border illegally. “Wetback” by then had completely dropped out of the rhetoric. But now it was replaced by silence. Legislators never acknowledged or discussed the racist antecedents of 1325 and 1326.

Subsequently, Congress has continued to re-enact the two laws without analyzing their history.

Public defenders try a new approach

Some of this history appeared in the Washington Post article, and it electrified federal public defender Hartzler and others working on 1325 and 1326 abolition. Months later, COVID hit and federal court work was curtailed. Hartzler took advantage of the hiatus. 

“I was in my house in June and July 2020, just researching eugenics and congressional records” with other colleagues’ assistance, she said. She decided to “cold email” UCLA scholar Lytle Hernández and ask for help.

“She was very much on board!” Hartzler said. So was San Diego State University political scientist Benjamin Gonzalez O’Brien, who had studied the “wetback” rhetoric of 1952. Declarations were crafted to reflect the scholars’ findings, and Hartlzer created a companion “motion to dismiss.” The set was posted on the list-serv. By late 2020, legal challenges based on this material had gone nationally viral—including in courts far from the border.

That’s how the Nevada motion to dismiss Gustavo Carrillo Lopez’s 1326 indictment originated, and, in El Paso, Barceñas Rumualdo’s as well. No one seems to know how many others have been filed. Judges’ decisions, and the Republican state attorneys general response to the Nevada case, have mentioned about a dozen cases, but there are undoubtedly far more. 

In San Diego, Hartzler said her public defender office files them whenever the details of a client’s case suggest that a challenge to 1326 would be helpful — for instance, when the potential prison-time penalty is so high that a challenge might motivate a judge to throw up their hands and accept a generous plea bargain. 

In Texas’ Western District, said Maureen Franco, who is head of the federal public defender office, her office has “filed these motions in cases where the client approved of us filing it.” She named no particular cases, but likely there are many. I ran into Barceñas Rumualdo’s case completely by chance while visiting an El Paso courtroom one morning this past summer to observe different types of felony proceedings. 

Yet almost none of the 1325 and 1326 challenges so far have been successful at the trial-court level. A judge in Arizona said that the government has the right to criminalize immigrants because legislators have “plenary power” — implying that the courts can’t intervene with constitutional principles into immigration-related laws passed by Congress. 

Other judges have ruled that the racist “taint” of the 1929 and 1952 laws was “cured” in 1990. Others have seen no provable legal problem in the first place with the 1952 law. And at least one judge has ruled that the laws have come down disproportionately on Latinx people, but illegal Southern border crossers are almost all Latinx, so there’s a rational — thus constitutional — basis for the disparity.

In cases decided so far, it might have helped the defendants if the scholars had testified before the judges instead of just filing written documents. But evidentiary hearings have happened in only two cases, both far from the border. 

One was in Oregon. The defendant there was a Guatemalan man, and after the judge heard from both Lytle Hernandez and Gonzalez O’Brien, he ruled that the 1952 law was free of racism and constitutional. Yet in Nevada, where Judge Du heard the same evidence from the same witnesses, she ruled that the law was tainted with racism and unconstitutional. 

The situation in border courts

Still, the vast majority of defendants are tried in courts near the border — and no judges there have held evidentiary hearings. Public defenders suspect that, unlike in interior communities such as Reno and Portland, judges in close proximity to Mexico are too busy with gluts of immigration-related cases to make time to hear experts. Evidentiary hearings typically take days to hold. 

There’s also the issue of border economic dependence on the big money that 1325 and 1326 cases bring in. El Paso County government’s third largest source of revenue, for instance — over $20 million annually — comes from fees that the U.S. Marshals pay the sheriff to hold people in the local jail who are accused and convicted of immigration-related crimes. These include thousands of 1325 and 1326 defendants. If judges were to abolish those statutes, they would likely face sharp community fire. 

Despite such obstacles, El Paso federal public defender Hanshew in May of this year filed a motion challenging the 1326 indictment of his client Yobani Barceñas. The judge in the case, David Briones, responded with a 36-page ruling. In it, he agreed that racism had infected the 1929 law and its 1952 re-enactment. But, Briones wrote, the 1990 version cured the problem. 

Migrant families surrender to Border Patrol agents in April after crossing the shallow Rio Grande from Ciudad Juárez to El Paso. (Angela Kocherga/El Paso Matters)

The El Paso ruling against Barceñas Rumualdo, so similar to the others, raised the question: What’s the point of all these challenges, when their court outcomes, at least in the short run, are bleak?

The challengers see them as a teaching-and-action device. San Diego State’s Gonzalez O’Brien hopes they will push “the Biden administration to look more closely at whether the law actually functions as a deterrent. If there is no functional purpose, it exists only to tear apart families and destroy lives. I don’t think that is the purpose of immigration policy in this country.” 

Jacinta Gonzalez, of Mijente, wants the Justice Department to stop thinking of 1325 and 1326 as immigration enforcement measures and instead to understand that “they are racist criminal laws.” Gonzalez is using discussion about the cases in her politicking to pass The New Way Forward Act. It’s an immigration reform bill, introduced in the House earlier this year, that would abolish 1325 and 1326. 

Meanwhile, some of the challenges are headed to higher courts on appeal initiated by the public defenders. A 1326 case out of Virginia has been filed in the Fourth Circuit. The Phoenix case is going to the Tenth. 

From El Paso, Yobani Barceñas Rumualdo’s case is also in play. 

Barceñas Rumualdo did badly in front of Judge Briones. He had asked for a bench trial — meaning he wanted to dispense with a jury and instead have the judge decide the verdict. Briones complied and quickly handed down a conviction. When his day of sentencing arrived, Barceñas Rumualdo already had spent 13 months behind bars waiting for a resolution to his case. Briones threw the book at him, with 30 additional months — even after public defender Hanshew described his client’s bad luck with mafias and COVID, and his need to get back to his kids in Mexico.

“I’m not impressed,” Briones said. He seemed irritated by the case — and especially by the 1326 challenge that he’d rejected. “I know you’re going to take it to the Supreme Court if you can,” he snapped at Hanshew. 

Minutes later, Barceñas Rumualdo sat slumped in a chair, tearfully waiting to be led off to his fate in some federal prison. But days after that, Hanshew filed a notice of appeal with the Fifth Circuit, in New Orleans. If it fails there, Briones is correct: the Supreme Court could come next. 

Cover photo: A mass trial of immigrants in 2018 at the Lucius D. Bunton Federal Courthouse in Pecos, Texas. (Photo courtesy of Debbie Nathan)

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Debbie Nathan

Debbie Nathan is a longtime freelance journalist specializing in the US-Mexico border, race, and sexual politics.

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