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Excerpted From: Kelly Lytle Hernández, Mae Ngai, and Ingrid Eagly , United States of America, Petitioner, v. Refugio PALOMAR-SANTIAGO. No. 20-437. (March 2021), Brief for Professors Kelly Lytle Hernández, Mae Ngai, and Ingrid Eagly as Amici Curiae Supporting Respondent, 2021 WL 1298527 (U.S.) (Appellate Brief), Supreme Court of the United States. (Footnotes) (Full Document)
Congress Never Purge Racial Animisty from Unauthorized Entry and Reentry statutes after 1929
While Congress recodified and reenacted the unauthorized entry and reentry statutes after 1929, it never purged the racial animus underlying them. The history of the period following 1929 shows that Congress's actions in 1952 and thereafter maintained-rather than cleansedthe original racist intent.
A. Racial Animus Against Mexican Migrants Was Still Pervasive In The Lead-Up To The McCarran-Walter Act of 1952
The history of the years leading up to the 1952 reenactment makes clear that racial animus against Mexicans remained a driving force motivating immigration policy throughout the 1940s and 1950s.
*18 As many United States citizens joined the armed services in the early 1940s, southwestern farmers faced domestic labor shortages. Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954, 37 W. Hist. Q. 421, 424 (2006) (Crimes and Consequences); Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 135-137 (2004). In fact, in 1942 the U.S. Employment Service officially certified that an extra 6,000 contract laborers were required to meet labor demands. Ngai 137. The shortage would lead to the Bracero Program, a series of agreements between the United States and Mexican governments that enabled the migration of short-term Mexican contract laborers, known as braceros, into and out of the United States. Crimes and Consequences 423.
The federal government's embrace of foreign contract labor represented “a momentous break with past policy and practice,” Ngai 137, insofar as it adopted a practice previously rejected as inconsistent with the prohibition on slavery. Contract labor in the wake of the Civil War had generally been perceived as “unambiguously unfree” and hence, “like slavery,” antithetical to the voluntary labor “upon which democracy depended.” Id. at 137-138. As a result, foreign contract labor had been outlawed in the mainland United States since 1885. In fact, it had either been abolished or never instituted in the first place in territories like Hawai'i, the Philippines, and Puerto Rico as they came under American colonial rule in the late nine-teenth century. Ibid.
The fact that “decades later, and in the mainland United States, Americans would turn to a colonial labor practice that they had rejected” shows how “Mexican workers in the Southwest and California were racialized as a foreign people, an ‘alien race’ not legitimately present *19 or intended for inclusion in the polity.” Ngai 138. That Mexican workers were recruited for an institution deemed unconscionable for others is an “expression of the legacies of slavery and conquest.” Ibid.
Nevertheless, the Bracero Program found many willing participants in Mexico. The combination of land privatization, mechanization, the export orientation of agricultural production and food shortages compelled rural Mexican laborers to seek survival through migration. Crimes and Consequences 424-425.
At the same time, other dynamics conspired to lead to a separate spike in unauthorized immigration to the United States. Crimes and Consequences 425; Ngai 146. First, many Mexicans did not meet the requirements of the Bracero Program, which only accepted young, healthy men with agricultural experience. Crimes and Consequences 426. Second, some states that enforced racial segregation were excluded from the Bracero Program based on Mexico's objection to race discrimination against Mexican workers. Ngai 147. As a result, Texas, Arkansas, and Missouri growers who became “ineligible to use braceros [] increasingly resorted to illegal labor during the 1940s.” Ibid. Third, some braceros deserted their contracts because of inhumane work conditions that violated the terms of the Bracero Program. Such violations included severe underpayment, illegal deductions, threats, mistreatment, and serious safety risks. Id. at 137-146. And if they deserted their contracts but did not depart from the United States, the braceros would lose their immigration status. Id. at 147.
From Mexico's perspective, the migration of young laborers across its northern border both exposed the failure of the Mexican Revolution to provide economic stability for its citizens and also drained the country of its own cheap labor supply. Crimes and Consequences 425-426. *20 Mexican officials convened meetings with a host of U.S. government agencies and demanded heightened border control in exchange for facilitating authorized immigration through the Bracero Program. They requested, among other things, that the United States return to Mexico anyone who had crossed illegally. Id. at 427. In 1944, the United States obliged. Id. at 428.
As a result of these bilateral discussions, United States immigration and deportation policies became focused on Mexico and the federal government undertook an “intensive drive on Mexican aliens.” Crimes and Consequences 428. The resulting shift of resources and personnel ultimately culminated in “Operation Wetback,” a harsh immigration enforcement campaign targeting unauthorized Mexican immigrants whose legacy reverberates to this day. See Crimes and Consequences 421; Ngai 155-160; Part II.C, infra.
Before 1943, the majority of Border Patrol officers worked along the northern, rather than southern, border. Crimes and Consequences 427. But Border Patrol now committed to strengthening its presence along the Mexican border by “filling all existing vacancies and detailing approximately 150 Patrol Inspectors from other areas” to the southern border. The number of inspectors working in the south doubled by year end. Ibid.
The United States and Mexico also worked in tandem to deploy trains and trucks to deport Mexican immigrants to the interior of Mexico to ensure these immigrants could not easily return to the United States. Crimes and Consequences 429-430. Reports of the deportations described inhumane conditions and “indescribable scenes of human misery and tragedy.” Id. at 432-433.
Additionally, in 1945, INS and the Border Patrol began construction on fencing designed to compel undocumented immigrants to enter the United States through *21 desert lands and mountains that were extremely dangerous to cross. Crimes and Consequences 438-439. One segment of the fence was removed from a demobilized WWII internment camp for Japanese American families to be planted along the U.S.-Mexico border. See Migra! 131.
At the same time that the U.S. government was deploying these on-the-ground measures, national sentiment both inside and outside of government coalesced around a stereotype of the “wetback” “as a dangerous and criminal social pathogen [that] fed the general racial stereotype ‘Mexican.’ ” Ngai 149. Within INS, a “conventional view” took hold “that illegal aliens were by definition criminal” because once “the ‘wetback’ starts out by violating a law * * * it is easier and sometimes appears even more necessary for him to break other laws.” Ibid.
Gradually, any effort to distinguish between the supposed characteristics of unauthorized entrants and the local population of Mexican descent was lost. An early 1950s sociological study revealed that these groups were “lumped together as ‘Mexicans' and the characteristics that are observed among the wetbacks are by extension assigned to the local people.” Ngai 149 (quoting Lyle Saunders & Olen Leonard, The Wetback in the Lower Rio Grande Valley 70 (1951)).
Meanwhile, the Senate Judiciary Committee convened a subcommittee to conduct a comprehensive study of the nation's immigration policy. It would culminate in the passage of the McCarran-Walter Act of 1952. Ngai 237.
The work of the subcommittee was heavily influenced by the views of Senator Pat McCarran, a so-called “Cold War warrior.” Ngai 237. Under his leadership, the subcommittee produced a report that concluded that “the Communist movement in the United States is an alien *22 movement, sustained, augmented, and controlled by European Communists and the Soviet Union.” Ibid. Senator McCarran viewed the 1952 Act as a necessary tool to preserve “this Nation, the last hope of Western civilization” against efforts (by foreigners) to “overrun, pervert[], contaminate[], or detroy[]” it. Ibid.
B. The 1952 Act Failed to Reconsider, Let Alone Purge, the Racial Animus Of The Criminal Entry and Reentry Provisions
Although the 1952 Act recodified the criminal entry and reentry provisions, with some revisions, the anti-Mexican racist views that underpinned the 1929 legislation remained relevant. Under this Court's precedent, no change in Congress's intent should be inferred from the revision and consolidation of statutes where, as here, there is no “clearly expressed” intention to “change their effect” or “alter[] the scope and purpose” of the enactments. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227 (1957). The recodified 1952 Act may have been “free of discriminatory taint” had Congress “actually confront[ed] [the 1929 Act's] tawdry past in reenacting it” and produced a law “untethered to racial bias.” Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring). But Congress did neither.
The 1952 Act changed immigration law and policy in several ways, but the major changes did not cleanse or even address the anti-Mexican sentiment underpinning the 1929 legislation. First, Congress repealed the complete exclusion of Asian immigrants from naturalization, although it maintained quotas for Asian immigrants. Ngai 238. Second, the 1952 Act codified suspension of deportation for individuals who had been continually present in the country for seven years with spouses or children who were United States citizens. This modification benefited a large number of European immigrants, but *23 not many Mexicans: Of the approximately 35,000 suspensions of deportation from 1941-1960, nearly three-quarters were of Europeans; only 8% involved Mexicans. Ngai 82-88 & n.120, 239.
The 1952 Act also “brought the many fragments of the nation's immigration and naturalization laws under a single code. Still, it was less an overhaul than a hardening of existing policy, with a few reforms and innovations” calculated to address the new Cold War context. Ngai 237. Indeed, the 1952 Act only reinforced the central view of the 1929 debates: that the arrival and assimilation of “aliens” who could undermine the uniformity of the white “cultural background” of the United States was undesirable and, indeed, a threat to national security. President Truman actually vetoed the Act “principally for its racist features,” but Congress overrode his veto. Id. at 239. Scholars have noted that the 1952 Act's emphasis on “similarity of cultural background” was an attempt to preserve the United States' “Western” identity through immigration policy. Id. at 237.
With respect to the criminal entry and reentry provisions specifically, the 1952 Act made no substantive changes to ameliorate their original racist purpose. See Immigration and Nationality (McCarran-Walter) Act, ch. 477, § 276, 66 Stat. 229 (1952); see also Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1326-1327 (2010) (Prosecuting Immigration); Doug Keller, Re-Thinking Illegal Entry and Re-Entry, 44 Loy. U. Chi. L.J. 65, 83 (2012). To the contrary, the 1952 Act's changes made unlawful entry and reentry easier to prosecute, thus exacerbating rather than diminishing their racially discriminatory harm.
As to reentry, Congress took what were previously three scattered provisions (targeting anarchism, prostitution, and general illegal reentry) and combined them into *24 one provision. The illegal reentry portion of that statute largely tracks Section 1326 to this day. Keller, 44 Loy. U. Chi. L.J. at 84. The revised reentry provision, unlike its predecessor, explicitly penalizes being “found in” the United States after having been deported (if the Attorney General has not granted permission to return). As the relevant committee report explained, “[t]his change [permits prosecution where] it is not possible for the Immigration and Naturalization Service to establish the place of reentry, and hence the proper venue, arising in prosecutions against a deported alien under the 1929 act.” See Joint Hearings on S. 716, H.R. 2379, and H.R. 2816 Before the House and Senate Subcomms. of the Comms. on the Judiciary, 82d Cong., 1st Sess. 716 (1951). In other words, the change made prosecution easier by allowing defendants to be tried in any district in which they were found, rather than requiring the prosecutor to establish the place of reentry to try a defendant consistent with the Sixth Amendment. Keller, 44 Loy. U. Chi. L.J. at 85 & nn.99-100.
Another (seemingly benign) revision also worked to make it easier to prosecute and convict immigrants. The 1952 Act lessened the penalty for a first illegal entry from one year to six months in prison, which made it a petty offense. Prosecuting Immigration 1326-1327; Keller, 44 Loy. U. Chi. L.J. at 83-84 & n.94. As a result, after 1952, defendants charged with a first illegal entry lost the right to a jury trial. Prosecuting Immigration 1327 & n.268; Keller, 44 Loy. U. Chi. L.J. at 84. At the time it made this change, Congress had been told that grand juries in El Paso in the 1940s refused to indict in more than 90% of cases because the criminal entry laws were “locally unpopular.” Prosecuting Immigration 1327 & n.269 (quoting Immigration and Naturalization: Hearing Before the Senate Subcomm. on Immigration of the Senate *25 Comm. on the Judiciary, 80th Cong., 1st Sess. 30 (1948)). That diminished process not only endured through subsequent reenactments of the criminal entry provision, but eventually opened the door to having magistrate judges, rather than Article III judges, preside over illegal entry trials. Id. at 1326-1327.
These amendments laid the groundwork for the massive use of illegal entry and reentry prosecutions that exists to this day. See Prosecuting Immigration at 1281-1282,1353 & fig.4; Ingrid V. Eagly, The Movement to Decriminalize Border Crossing, 61 B.C. L. Rev. 1967, 1984 & fig.2, 1988 & tbl.1 (2020) (The Movement). They cannot plausibly be read to contain a clear expression of an intent to purge the criminal entry and reentry provisions of their racist origins. Accordingly, no change in Congress's intent should be inferred from these amendments. See Fourco Glass Co., 353 U.S. at 227. The racist intent that propelled the original enactment of these provisions in 1929 remained operative after the 1952 recodification.
C. Nothing In The Post-1952 History Purged The Racist Intent Of The 1929 Statute
No developments after 1952 served to purge the racist intent behind the 1929 statute. The inhumane treatment of Mexican immigrants at the border continued and intensified in the years after Congress passed the 1952 Act. In 1954, President Eisenhower appointed retired Army General Joseph Swing as the commissioner of INS to focus on the militarization of the INS. Crimes and Consequences 442. According to Swing, the “ ‘alarming, ever-increasing, flood tide’ of undocumented migrants from Mexico constituted ‘an actual invasion of the United States' ” that necessitated a reciprocal response. Ngai 155 (quoting typescript, Joseph Swing, Report to the American Section of *26 the Joint Commission on Mexican Migrant Labor, September 3,1954, 3, file CO629P, INS-CO).
The government's response came in the form of Operation Wetback, an intensive law enforcement campaign designed to be a “direct attack * * * upon the hordes of aliens facing [the United States] at the border.” Ngai 155. Under Operation Wetback, the INS redirected its resources from the northern and eastern districts to the southern border. The INS deployed 750 Border Patrol officers, 300 jeeps, cars, and buses, seven airplanes, and other equipment in an effort to sweep through the southwestern United States, performing raids and mass deportations. Ibid. The policy of discouraging illegal reentry by relocating apprehended migrants “far into” the Mexican interior also continued in full force. Id. at 156.
Prosecutions under the criminal entry and reentry provisions also surged during this period. Prosecuting Immigration 1352-1353. In what were referred to by the Attorney General as the “wet-back” cases, thousands of laborers were criminally charged by the federal government, served little if any jail time, and were sent back across the Southwest border. Id. at 1352. And in Arizona, the U.S. Attorney's Office instituted a zero-tolerance policy of prosecuting all unauthorized border crossers. Ibid.
Operation Wetback also resulted in mass deportations on an enormous scale. Between 1953 and 1955, the INS reported capturing 801,069 Mexican immigrants-twice the number of apprehensions from 1947 through 1949. Ngai 156 (quoting minutes, meeting of American section, Joint Migratory Labor Commission, September 10-11, 1954, file 56321/448G, box 3299, accession 58A734, INS). General Swing sought to capitalize on Operation Wetback's success and build a fence along sections of the border in California and Arizona to deter “the illegal migration of ‘disease-ridden’ women and children whom he said *27 comprised over 60 percent of those entering surreptitiously after Operation Wetback.” Ibid.
Decades later, during a 2015 debate for the Republican nomination for President, then-candidate Donald Trump praised the operation, saying:
Dwight Eisenhower, good president, great president, people liked him. I like Ike, right? The expression. I like Ike. Moved a million and a half illegal immigrants out of this country, moved them just beyond the border. They came back. Moved them again, beyond the border, they came back. Didn't like it. Moved them way south. They never came back.
Dwight Eisenhower. You don't get nicer, you don't get friendlier. They moved a million and a half people out. We have no choice. Dara Lind, Operation Wetback, the 1950s Immigration Policy Donald Trump Loves, Explained, Vox (Nov. 11, 2015), https://www.vox.com/2015/11/11/9714842/operation-wetback).
Further, Operation Wetback's operational success coincided with a significant increase in prosecutions for unauthorized entry and reentry. Prosecuting Immigration 1352-1353. Unauthorized entry quickly became the most prosecuted crime on the entire federal docket, and in the decades since the total number of prosecutions has increased dramatically. Ibid.; see also The Movement 1984. And unauthorized reentry prosecutions, for their part, have risen steeply since the early 2000s. The Movement 1988 & tbl.1.
*28 Given this background, subsequent reenactments and reauthorizations of Sections 1325 and 1326 after 1952 $%^7 do not represent a break with the past. Congress has never taken any action to remove the taint of the racism inherent in their passage in 1929. Although some of the post-1952 enactments made changes to peripheral provisions of the statute, including by adding Section 1326(d), the subject of this case, none of them enacted material changes to the core criminal-liability provisions in Sections 1325 or 1326. Congress's repeated failure to grapple with the “sordid history” of those provisions makes clear that the intent underlying them remains. Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring); see also Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2273 (2020) (Alito, J., concurring) (recognizing that “it emphatically does not matter whether Montana readopted the no-aid provision for benign reasons. The provision's ‘uncomfortable past’ must still be ‘examined’ ”).
III. In Light of the Racist Origins of Section 1326, the Court Should Construe Any Statutory Ambiguity in Favor of Respondent
Where, as here, a criminal law's original purpose was defined by racial animus, the Court should interpret any ambiguity in a provision in favor of the defendant-in this case, Respondent.
*29 This Court just recently emphasized, in Ramos v. Louisiana, 140 S. Ct. 1390 (2020), that where racism infected a law's origins, that uncomfortable history must not be ignored. Ramos concerned the constitutionality of Louisiana and Oregon laws permitting non-unanimous jury convictions. These state rules had originally been enacted for racist reasons, but had since been recodified in a non-discriminatory context. The Court struck down the nonunanimous jury laws, in part, because it could not ignore the “racially discriminatory reasons that [the state] adopted [its] peculiar rules in the first place.” Ramos, 140 S. Ct. at 1401. The majority opinion determined that the openly racist purpose of the laws demanded acknowledgement, and pondered how the Court could possibly “ignore the very functions those rules were adopted to serve.” Id. at 1401 n.44.
Although Louisiana and Oregon recodified the nonunanimous jury laws at issue in Ramos “in new proceedings untainted by racism,” this Court declined to “supply an excuse for leaving an uncomfortable past unexamined.” Ramos, 140 S. Ct. at 1401 n.44. As in Ramos, the fact that Sections 1325 and 1326 have been reenacted and recodified since their inception does not purge them of their original racist intent. As Justice Kavanaugh emphasized in his concurrence, were courts to turn a blind eye to a statute's disturbing background, “the resulting perception of unfairness and racial bias [could] undermine confidence in and respect for the criminal justice system.” Id. at 1418. In construing Section 1326(d) here, this Court should likewise be guided by the ever-present “imperative to purge racial prejudice from the administration of justice.” Ibid. (Kavanaugh, J., concurring in part) (citation and internal quotation marks omitted).
*30 While this case does not present the Court with the occasion to consider the question whether the racist history of Sections 1325 and 1326 renders them unconstitutional, that history can and should inform the Court's approach in the more modest undertaking before it today: narrowly construing Section 1326(d) to afford additional judicial review. Such an interpretation could ameliorate some of the discriminatory impact flowing from the enforcement of the substantive criminal reentry provision.
Adopting a defendant-favorable construction of Section 1326(d) would properly leave for another day the constitutional question whether the criminal reentry provision, like its misdemeanor counterpart, violates the Fifth Amendment because it is infected with racial animus. Holding that Respondent did not satisfy the requirements of Section 1326(d) even though he was deported pursuant to an unlawful removal order would perpetuate the world the Nativists dreamed of: one in which the law facilitates the expulsion of Mexican immigrants to ensure they do not dilute the racial purity of the United States.
Permitting the punishment of Mr. Palomar-Santiago, a Mexican immigrant, even though he should not have been deported in the first place, is precisely the result Senator Blease would have wanted.
