Posted on December 12, 2022

The Law That Led to Trump’s Family Separation Crisis Has a Racist History. Now These Attorneys Are Fighting Against It in Court.

Adolfo Flores, BuzzFeed, December 4, 2022

Kara Hartzler, who worked as a federal defender in San Diego, had a front-row seat to the impact of the Trump administration’s “zero tolerance” policy that was being used to separate thousands of immigrant parents and their children.

Inside the courthouse where Hartzler worked as an attorney with the Federal Defenders of San Diego, hundreds of distraught parents faced criminal charges of entering the US without authorization, which former president Donald Trump used to separate them from their children.

Most of the time, the parents were charged with illegal entry in mass hearings where they pleaded guilty as a group. They were then often sentenced to time served and returned to the same Customs and Border Protection facility where they had initially been detained. But by the time the parents arrived, their children had been sent to shelters, sometimes several states away. To this day, hundreds of families remain separated.

Hartzler and her colleagues at the Federal Defenders of San Diego, who take on a majority of pro bono federal criminal defense cases in the county, came up with a strategy: Challenge the illegal-entry charge. If defense attorneys could prove that it was unconstitutional and inherently racist, a judge would strike the entire thing, potentially affecting hundreds of cases.

Their research into the law’s formation bolstered their case. It showed how congressional lawmakers in the early 1900s invoked overt racism to justify the legislation at the time, discussing how the “mixture blood” of white, Native Americans, and Black people would inflict “great penalty” on the US. They also said Mexicans were “illiterate, unclean, peonized masses” who were “poisoning the American citizen.”


The racist comments made by lawmakers before passing the 1929 law that was the basis for the illegal-entry and felony-reentry statutes would go on to be the linchpin in their legal argument. Instead of denying the illegal-reentry charge, the attorneys would try to get it dismissed by arguing that it was enacted with the purpose of discriminating against Latinos.

It was a novel argument that had never been used before. But even if a judge believes that the laws were conceived with racist intentions, the statutes could still be ruled constitutional if the government can prove they would have been passed regardless.

The 9th Circuit is set to rule on the appeal of two cases, one of which is Hartzler’s challenge of the constitutionality of illegal reentry. A favorable ruling would prevent the government from being able to prosecute immigrants on these charges and put them in jail for months or longer in areas covered by the 9th Circuit.

In recent years, illegal entry and reentry were the most prosecuted federal offenses, more so than drug, weapon, and white-collar crimes, according to the Transactional Records Access Clearinghouse at Syracuse University. In November and December 2018, for example, immigration prosecutions accounted for 69% and 65%, respectively, of all criminal prosecutions.

The number of prosecutions for illegal entry and reentry hit a record high in 2019, according to the Justice Department, at 106,312. That number has dropped significantly in recent years since border authorities quickly began to expel immigrants from the US at the border, without their having access to the immigration system, starting in 2020 under a Trump-era pandemic order. That could soon change, though; a federal judge last month gave the government five weeks to stop using the order, known as Title 42.


When the laws that form the basis of the modern immigration system were passed in the 1920s, some members of Congress openly embraced eugenics, supported segregation, and used racist language.

When Congress passed the National Origins Act of 1924, which restricted how many immigrants could enter the US, particularly non-Europeans, it exempted people from the Western Hemisphere, including Mexicans. This upset lawmakers who wanted to restrict all immigration from Mexico, but those efforts failed under pressure from employers, particularly those in agriculture.

During attempts to restrict immigration from non-European countries, US lawmakers heard testimony from a eugenicist who said that controlling which immigrants were allowed in was the best way to promote “race conservation,” and compared drafters of deportation laws to “successful breeders of thoroughbred horses.”

Sen. Coleman Livingston Blease, a Democrat from South Carolina who defended lynching and supported segregation, proposed a solution regarding Mexican immigrants that would appease nativists and employers: make crossing the border without authorization a crime. It would force Mexican workers to enter only through a port of entry, allowing the US to control how many entered while ensuring that employers had enough of the laborers they depended on. The law making it a crime to enter the US without authorization was approved in 1929.


Decades later, the 1952 Immigration and Nationality Act upheld the system established by the 1924 law, though it granted immigration quotas to mostly Western and Northern European countries. The law also reenacted illegal entry and reentry.

In a court filing for one of Hartzler’s cases, she pointed to a 925-page report that served as the basis for the 1952 statute that repeatedly uses the term “wetback” to prove Congress sought to discriminate against Latinos. Sen. Pat McCarran, a Democrat from Nevada and chair of the Senate Judiciary Committee, used “wetback” — a racist term originally referring to Latinos who swam across the Rio Grande — to refer to both authorized and unauthorized immigrants.


The report would go on to state that the purpose of the US immigration system was to “maintain the balance of the various elements in our white population.”

In court, Justice Department attorneys said that while there was racism behind the enactment of the 1929 laws, the court should focus on the reenacted 1952 version and review it under the standard that gives Congress near-absolute say on immigration matters.


The group at the Federal Defenders of San Diego shared the legal argument with their counterparts across the US. But for a little over a year after they filed the first challenge in July 2020, their efforts went nowhere. {snip}

That changed in 2021, when, for the first time, in an “unprecedented” ruling, a federal judge in Nevada dismissed an illegal-reentry charge for Gustavo Carrillo-Lopez, a Mexican immigrant, on the grounds that it violated his Fifth Amendment rights.

“The Court is aware that proving discriminatory intent motivated the passage of a specific statute is difficult — in fact, unprecedented,” US District Judge Miranda Du said. “But despite the high threshold, the Court cannot deny that when considered as a whole, the evidence indicates discriminatory intent on the part of the 1952 Congress.”

The Justice Department had argued that the law would have been reenacted regardless of whether lawmakers wanted to discriminate because Congress was actually trying to protect US citizens from economic competition, maintain national security, and preserve diplomatic relations with Mexico. Du disagreed and noted that the 1952 Congress made no substantial efforts to address the original racist intentions. Nor was there any attempt to grapple with its racist history or influence in the five times the illegal-reentry provision had been amended since 1952, Du said.


Cassandra Lopez, an attorney who represented a Mexican immigrant whose case is on appeal before the 9th Circuit, said that if today’s Congress has a nonracist reason for the law, lawmakers should make it known in new deliberations on whether to keep it. Because ultimately, she added, hundreds of immigrants still receive federal prison time under what has been proved to be a racist law.

“We regularly see people who receive years in prison for what is essentially glorified trespassing,” Lopez said. “They can’t just keep essentially laundering a racially discriminatory law.”


If the federal defenders prevail in the 9th Circuit, the government would be prevented from prosecuting immigrants for entering the US without authorization in regions under its purview. It wouldn’t stop the deportations, though. And if it happens, the Justice Department will almost certainly appeal to the Supreme Court.