Amicus Curiae Brief — United States, Petitioner v. Refugio Palomar-Santiago

No. 20-437

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

REFUGIO PALOMAR-SANTIAGO.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PROFESSORS KELLY LYTLE

HERNÁNDEZ, MAE NGAI, AND INGRID EAGLY

AS AMICI CURIAE SUPPORTING RESPONDENT

BENJAMIN S. ZWEIFACH

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street NW

Washington, DC 20006

(202) 223-7300

AHILAN ARULANANTHAM

HIROSHI MOTOMURA

UCLA SCHOOL OF LAW

385 Charles E. Young Dr. E.

Los Angeles, CA 90095

(310) 825-1029

ALEXIA D. KORBERG

Counsel of Record

FARRAH R. BERSE

MELINA MENEGUIN LAYERENZA

RENATA M. O’DONNELL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

akorberg@paulweiss.com

TABLE OF CONTENTS

Page

Interest of amici ............................................................................ 1

Summary of argument ................................................................. 3

Argument....................................................................................... 5

I. Racial animus infects the origins of 8 U.S.C 1326 ..... 5

A. A “Nativist” political coalition advocated

severe restrictions on non-white

immigration in the 1920s .......................................... 5

B. The National Origins Act of 1924

failed to fully achieve the Nativists’

anti-Mexican goals .................................................... 7

C. Post-1924 congressional debates over

Mexican immigration policy reveal

widespread racism against Mexicans .................... 10

D. The criminal entry and reentry provisions

of the Undesirable Aliens Act of 1929

were crafted as a solution

to the “Mexican problem” ...................................... 13

II. The reenactment and recodification of the

criminal entry and reentry statutes failed to

purge their underlying racial animus ....................... 17

A. Racial animus against Mexican migrants

was still pervasive in the lead-up to the

McCarran-Walter Act of 1952................................ 17

B. The 1952 Act failed to reconsider, let alone

purge, the racial animus of the criminal entry

and reentry provisions. ........................................... 22

C. Nothing in the post-1952 history purged

the racist intent of the 1929 statute....................... 25

III. In light of the racist origins of section 1326, the

Court should construe any statutory ambiguity

in favor of Respondent................................................ 28

Conclusion ................................................................................... 31

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020) ........................................................ 28

Fourco Glass Co. v. Transmirra Products Corp.,

353 U.S. 222, 227 (1957) .............................................. 22, 25

Ramos v. Louisiana, 140 S. Ct. 1390 (2020)............. passim

Books, Periodicals, and Websites:

James J. Davis, Selective Immigration (1925) ................. 15

James J. Davis, The Iron Puddler: My Life in the

Rolling Mills and What Came of It (1922). ................... 15

Ingrid V. Eagly, Prosecuting Immigration,

104 Nw. U. L. Rev. 1281 (2010) .............................. passim

Ingrid V. Eagly, The Movement to Decriminalize

Border Crossing, 61 B.C. L. Rev. 1967 (2020) ......... 25, 27

Kelly Lytle Hernández, City of Inmates: Conquest,

Rebellion and the Rise of Human Caging

in Los Angeles, 1771–1965 (2017)........................... passim

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 (2006) ......................................... passim

Kelly Lytle Hernández, Migra! A History of the

U.S. Border Patrol (2010) ....................................... passim

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). ......................................................... 27

Doug Keller, Re-Thinking Illegal Entry and ReEntry, 44 Loy. U. Chi. L.J. 65 (2012) ....................... 23, 24

III

Books, Periodicals, and Websites—continued:

Laughlin’s Model Law, Harry Laughlin and

Eugenics: A Selection of Historical Objects

from Harry H. Laughlin Papers, Truman State

University, https://historyofeugenics.truman.edu/

altering-lives/sterilization/model-law/ (last visited

Mar. 31, 2021) .................................................................... 15

John M. Murrin et al., Liberty, Equality, Power:

A History of the American People, Volume 2:

Since 1863 (7th ed. 2015) ................................................ 8, 9

Mae M. Ngai, Impossible Subjects: Illegal Aliens

and the Making of Modern America (2004) ......... passim

Offers “[N*****]” Poem, Providence Evening Trib.,

June 18, 1929, at 7, https://news.google.com/

newspapers?id=hO1gAAAAIBAJ&sjid=

uWMNAAAAIBAJ&pg=3029%2C5898411 .................. 14

Daniel Okrent, The Guarded Gate: Bigotry,

Eugenics, and the Law that Kept Two

Generations of Jew, Italians, and Other European

Immigrants out of America (2019) ................................. 16

Isaac Stanley-Becker, Who’s Behind the Law

Making Undocumented Immigrants Criminals?

An ‘Unrepentant White Supremacist.’, Wash.

Post, June 17, 2019, http://www.washingtonpost.

com/nation/2019/06/27/julian-castro-beto-orourkesection-immigration-illegal-coleman-livingstoneblease/................................................................................. 14

Hans P. Vought, The Bully Pulpit (2004) ......................... 15

Congressional and Executive Agency Materials:

69 Cong. Rec. 2817 (1928). ................................................... 16

71 Cong. Rec. 2946–2947 (1929) .......................................... 14

Robert F. Foerster, Report Submitted to the U.S.

Dep’t of Labor, The Racial Problems Involved in

Immigration from Latin America and the West

Indies to the United States (1925)................................... 15

IV

Congressional and Executive Agency Materials—continued:

Immigration from Latin America, the West Indies,

and Canada: Hearings Before the House Comm.

on Immigration and Naturalization, 68th Cong.,

2d Sess (1925) .............................................................. 15, 16

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.

(1951) .................................................................................. 24

Seasonal Agricultural Laborers from Mexico:

Hearing on H.R. 6741, H.R. 7559, and H.R. 9036

Before the House Comm. on Immigration and

Naturalization, 69th Cong., 1st Sess. (1926) ................. 12

Statutes:

8 U.S.C. 1325 ................................................................ passim

8 U.S.C. 1326 ................................................................ passim

Act of March 4, 1929 (Undesirable Aliens Act),

Pub. L. No. 70-1018, ch. 690, § 2, 45 Stat. 1551 .......... 4, 17

Act of Nov. 18, 1988, Pub. L. No. 100-690,

Title VII, § 7345(a), 102 Stat. 4471 .................................. 28

Act of Nov. 29, 1990, Pub. L. No. 101-649,

Title V, § 543(b)(3), 104 Stat. 5059 .................................. 28

Act of Sept. 13, 1994, Pub. L. No. 103-322,

Title XIII, § 130001(b), 108 Stat. 2023 ............................ 28

Act of Apr. 24, 1996, Pub. L. No. 104-132,

Title IV, §§ 401(c), 438(b), 441(a), 110 Stat. 1267,

1276, 1279 ........................................................................... 28

Act of Sept. 30, 1996, Pub. L. No. 104-208,

Div. C, Title III, §§ 305(b), 308(d)(4)(J), (e)(1)(K),

(14)(A), 324(a), 110 Stat. 3009–606, 3009–618 to

3009–619, 300–629 ............................................................. 28

Immigration and Nationality (McCarran-Walter)

Act, ch. 477, § 276, 66 Stat. 229 (1952) ........................ 5, 23

National Origins Act of 1924,

Pub. L. No. 68-139, 43 Stat. 153. ....................................... 7

In the Supreme Court of the United States

No. 20-437

UNITED STATES OF AMERICA, PETITIONER

v.

REFUGIO PALOMAR-SANTIAGO.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PROFESSORS KELLY LYTLE

HERNÁNDEZ, MAE NGAI, AND INGRID EAGLY

AS AMICI CURIAE SUPPORTING RESPONDENT

INTEREST OF AMICI CURIAE

Amici are professors who teach and regularly publish

scholarship concerning the immigration laws of the

United States. 1 As some of the nation’s leading scholars

1

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part; no such counsel or a party

made a monetary contribution to fund its preparation or submission;

and no person other than amici or their counsel made such a monetary

contribution. The parties have consented to the filing of this amicus

brief.

(1)

2

on immigration, they have a professional interest in ensuring that the Court is fully and accurately informed regarding the history behind the criminal reentry provision

under which Respondent has been indicted.

Amicus Kelly Lytle Hernández is a professor and the

Thomas E. Lifka Endowed Chair of History at UCLA.

She is a 2019 MacArthur Fellowship recipient and is one

of the nation’s leading historians of race, policing, immigration, and incarceration in the United States. Her

award-winning scholarly works include books entitled Migra! A History of the U.S. Border Patrol (University of

California Press 2010), which explored the making and

meaning of the U.S. Border Patrol in the U.S.-Mexico borderlands; and City of Inmates: Conquest and the Rise of

Human Caging in Los Angeles (University of North Carolina Press 2017), which discussed the rise of incarceration as a social institution and its effect on racialized populations.

Amicus Mae Ngai is the Lung Family Professor of

Asian American Studies and Professor of History at Columbia University, and a U.S. legal and political historian

who specializes in studies of immigration, citizenship, and

nationalism. She has authored many publications concerning immigration in the United States, including the

award-winning Impossible Subjects: Illegal Aliens and

the Making of Modern America (Princeton University

Press 2004), a book tracing the origins of the concept of

the “illegal alien” in American law and society.

Amicus Ingrid Eagly is a professor at UCLA School of

Law. She is an expert in the intersection between immigration enforcement and the criminal legal system. She

has written extensively on the history of federal laws

criminalizing migration, including Prosecuting Immigra-

3

tion, published in the Northwestern University Law Review, and The Movement to Decriminalize Border Crossing, published in the Boston College Law Review.

SUMMARY OF ARGUMENT

The Government seeks to criminally prosecute Respondent Refugio Palomar-Santiago under 8 U.S.C. 1326,

a statutory provision enacted in 1929 for the purpose of

solving “the Mexican problem” by criminalizing

unauthorized reentry after deportation from the United

States. Under the Government’s theory, Respondent

cannot challenge his felony indictment even though it

rests entirely on an improper removal order that should

never have been entered. That harsh application is no accident. Like its misdemeanor companion provision codified at 8 U.S.C. 1325, Section 1326 was 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.

In this brief, amici describe the blatantly racist intentions of the legislators who drafted Sections 1325 and

1326. That history compels construing any ambiguity in

the statute in favor of Respondent. As Justice Kavanaugh

recently observed, “this Court has emphasized time and

again the ‘imperative to purge racial prejudice from the

administration of justice.’” See Ramos v. Louisiana, 140

S. Ct. 1390, 1418 (2020) (Kavanaugh, J., concurring in

part) (quoting Peña-Rodriguez v. Colorado, 137 S. Ct.

855, 867 (2017)). To do so, the Court must acknowledge

the most disturbing origins of our laws. Ibid.

In Part I, amici explain how Sections 1325 and 1326

resulted from a brokered compromise in 1929 between the

Nativists, a political faction organized to oppose non-

4

white, and particularly Mexican, immigration, and agribusiness, a burgeoning industrialist constituency that depended on a Mexican migrant workforce for the development of the southwestern economy. The two groups

struck a deal to pass the Undesirable Aliens Act of 1929

(“1929 Act”). The 1929 Act’s criminalization of unauthorized entry and reentry was designed to further the Nativists’ racist goal of preventing long-term Mexican immigration to the United States while also preserving agribusiness access to low-cost workers. The Nativists intended that the 1929 Act would form a bulwark to stop

Mexican migrants from undermining the “desirable character of citizenship,” thus preventing—in the Nativists’

minds—a new “social problem” akin to that purportedly

created by the arrival of African people during slavery. In

other words, their motivations were based on a belief in

the inherent inferiority and undesirability of Mexicans as

a racial group. The agribusiness constituency shared the

Nativists’ beliefs, even as they continued to rely on Mexican workers in their businesses.

Congress reenacted Sections 1325 and 1326 in the

McCarran-Walter Act of 1952 (“1952 Act”). Part II explains why that reenactment did not purge the racism underlying the statute. On the contrary, the history makes

clear that the same racist intent to exclude Mexicans continued to operate during the 1940s and 1950s. Unsurprisingly then, the only material changes in the 1952 reenactment made unauthorized entry easier to prosecute. Congress’s failure to grapple with the racist history of the

1929 provisions when reenacting them in 1952—and subsequently—renders the 1929 history operative when assessing the relevant legislative intent.

In Part III, amici chart a path for the Court to contend

with this racist history within the context of the relatively

narrow question before it today. By construing Section

5

1326(d) to afford additional judicial review in the case of

Respondent and defendants like him, the Court could alleviate some of the discriminatory impact flowing from

the enforcement of the criminal reentry provision. “[T]he

imperative to purge racial prejudice from the administration of justice” requires no less. Ramos, 140 S. Ct. at 1418

(Kavanaugh, J., concurring in part) (citation and internal

quotation marks omitted).

ARGUMENT

I.

RACIAL ANIMUS INFECTS THE ORIGINS OF 8

U.S.C. 1326

To claim that the Undesirable Aliens Act of 1929 was

founded in anything but deep-seated racial animus is to

ignore the words spoken on the Congressional floor in the

1920s that led to its passage. The congressional debates

made clear that legislators saw Mexican immigrants as a

“social problem” to be controlled because they were a

threat to white hegemony. This perceived threat was the

animating motivation behind the eventual passage of the

Act and, in particular, the criminal entry and reentry provisions.

A. A “Nativist” Political Coalition Advocated Severe Restrictions On Non-White Immigration In The 1920s

The felony unauthorized reentry after deportation

statute codified at 8 U.S.C. 1326, like its misdemeanor

counterpart, codified in Section 1325, traces its origins to

the 1920s. That era saw increasingly vocal and active

white resentment of other racial groups, a period so racially fractious that it earned the moniker the “Tribal

Twenties.” Kelly Lytle Hernández, City of Inmates: Conquest, Rebellion and the Rise of Human Caging in Los

Angeles, 1771–1965, at 131 (2017) (City of Inmates) (citing

6

John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925, at 264–299 (1988)). This was

“a time when the Ku Klux Klan was reborn, Jim Crow

came of age, and public intellectuals preached the science

of eugenics.” Ibid.

Over the course of the decade, a group of white lawmakers known as the “Nativists” increased their political

influence by pushing an agenda that demonized all immigrants from anywhere other than certain favored European countries. City of Inmates 131. The Nativists

warned that freely permitting the inflow of immigrants

from around the world would repeat the “tragedy” of the

slave trade, though ironically the Nativists used the word

“tragedy” to refer not to the evils of slavery but rather to

the introduction of African people into the United Sates.

Ibid.

Meanwhile, Mexican immigrant laborers were making

a home for themselves in borderlands and building a

“MexAmerica.” City of Inmates 131–132. These immigrants settled into and created communities, built homes

and “established everything from newspapers and businesses to bands and baseball teams.” Id. at 132. They

“made full and permanent lives for themselves and their

children—an increasing number of whom were U.S.-born

citizens—in the United States.” Ibid. The Nativist movement saw these burgeoning communities as a threat to its

national project of restricting permanent immigration to

select Europeans. Id. at 134 (discussing how the boom in

Mexican immigration “unnerved the Nativists” as it

“threatened to degrade the nation’s ‘Aryan’ stock”).

7

B. The National Origins Act Of 1924 Failed To Fully

Achieve The Nativists’ Anti-Mexican Goals

Faced with the prospect of non-white immigrants settling in the United States, the Nativists resorted to incremental legislative efforts to influence the composition of

the immigrant pool according to their racist view of what

was desirable. The Nativists secured an early, if partial,

legislative victory with Congress’s enactment of the National Origins Act of 1924 (“1924 Act”). Pub. L. No. 68139, 43 Stat. 153. That law banned all Asian immigrants

and required other immigrants who were potentially eligible for entry to submit to inspection at a U.S. immigration station. During inspection, aspiring immigrants

would take a literacy test and a health exam, and pay $18

in head taxes and visa fees before being granted entry—

all requirements that the Nativists believed only certain

Europeans could pass. City of Inmates 132–133. The

1924 Act also established a system of national quotas limiting the total number of immigrants allowed entry from

eastern-hemisphere countries each year; of the total annual quota allotment, 96% was reserved for European immigrants. Id. at 133.

While these restrictions on immigration from outside

Europe were remarkably stringent, the Nativists had actually been pushing for even greater restrictions on nonEuropean immigration. However, they were stymied by

business opposition from representatives from the Western states, which increasingly relied on the Mexican immigrant workforce. Due to “the decline of white male itinerancy, the exclusion of Chinese workers, and the nadir of

California’s indigenous population,” Mexican immigrants

had emerged as a significant proportion of the low-wage

workforce in the region. City of Inmates 132. As the

President of the Los Angeles Chamber of Commerce put

8

it, “[w]e are totally dependent . . . upon Mexico for agricultural and industrial common or casual labor. It is our

only source of supply.” Id. at 131 (quoting Devra Weber,

Dark Sweat, White Gold: California Farm Workers, Cotton, and the New Deal 35 (1994)). Speaking on behalf of

himself and various livestock raisers’ associations,

rancher Fred Bixby testified before the Senate Committee on Immigration about industrial reliance on Mexican

labor. He noted that in California “we have no Chinamen,

we have not the Japs. The Hindu is worthless; the Filipino

is nothing, and the white man will not do the work.” Kelly

Lytle Hernández, Migra! A History of the U.S. Border

Patrol 30 (2010) (Migra!) (quoting Restriction of Western

Hemisphere Immigration: Hearings on S. 1296, S. 1437,

and S. 3019 Before the Senate Comm. on Immigration,

70th Cong., 1st Sess. 24, 26 (1928) (statement of Fred

Bixby)).

At the time, immigration authorities counted approximately 100,000 Mexicans crossing the border each year.

The Nativists’ proposed quota would have limited entries

to a few hundred. City of Inmates 134. Thus, agribusiness opposed any quota system simply because they relied on Mexican laborers.

Because the bloc of pro-business representatives opposed the quota, the Nativists were forced to choose between a Mexican exemption to the quota system and no

immigration quotas at all. They chose the former. The

law ultimately exempted from the quota all immigrants

from the Western hemisphere, whereas all other nations

had a combined annual limit of 165,000 immigrants. City

of Inmates 133; John M. Murrin et al., Liberty, Equality,

Power: A History of the American People, Volume 2:

9

Since 1863, at 659 (7th ed. 2015) (Liberty, Equality,

Power). 2

The Nativists remained unsatisfied over the following

years. Congressman John C. Box, who would later cosponsor a 1926 bill that would have limited Mexican immigration, opined that “[t]he continuance of a desirable

character of citizenship * * * will be violated by increasing the Mexican population of the country.” Migra! 28

(quoting Seasonal Agricultural Laborers from Mexico:

Hearings Before the House Comm. on Immigration and

Naturalization, 69th Cong., 1st Sess. 124 (1926) (statement of John C. Box)). During the congressional hearings

for the 1924 Act, another Congressman questioned the

wisdom of exempting the Western hemisphere from the

nation-by-nation quota system by asking “[w]hat is the

use of closing the front door to keep out undesirables from

Europe when you permit Mexicans to come in here by the

back door by the thousands and thousands?” Id. (quoting

David Gutiérrez, Walls and Mirrors: Mexican Immigrants, and the Politics of Ethnicity 53–54 (1995)).

With the Western hemisphere not subject to the quota

system, Mexicans continued to immigrate in greater numbers. By the end of the 1920s, Mexico became one of the

leading sources of immigration to the United States. Migra! 28. But the Nativist backlash continued to build,

leading to what would become the Undesirable Aliens Act

of 1929.

2

The quota system capped the number of eligible immigrants from

each country based on a percentage of the immigrants from that

country who resided in the United States in 1890. Liberty, Equality,

Power 659. This, too, had a racially disparate impact in that it favored

certain European groups (such as British, Germans, and Scandinavians) over others that the Nativists thought less desirable (such as

Italians, Greeks, and Poles). Ibid.

10

C. Post-1924 Congressional Debates Over Mexican Immigration Policy Reveal Widespread Racism Against

Mexicans

The 1924 Act’s foundational compromise did not last

long. Congress considered bills designed to curtail Mexican immigration in 1926 and 1928. And although these debates ostensibly pitted Nativists against agribusiness lobbyists, legislators from both groups used openly racist

language when describing Mexican immigrants.

The Nativists voiced their usual fears about the effects

of the United States’ shifting demographic composition

due to immigration. For example, the Immigration Restriction League warned the Senate that “[o]ur great

Southwest is rapidly creating for itself a new racial problem, as our old South did when it imported slave labor

from Africa.” Migra! 29 (quoting Restriction of Western

Hemisphere Immigration: Hearings on S.1296, S.1437,

and S. 3019 Before the Senate Comm. on Immigration,

70th Cong., 1st Sess. 188 (1928) (statement on Mexican

immigration submitted by the Immigration Restriction

League)).

While the Southwestern agricultural lobby fought

against proposals to curtail Mexican immigration, they accepted the racist premise underlying the Nativists’

worldview. In 1926, an agribusiness lobbyist named S.

Parker Frisselle testified before Congress that “[w]e,

gentlemen * * * are just as anxious as you are not to build

the civilization of California or any other Western district

upon a Mexican foundation.” City of Inmates 135 (quoting

Seasonal Agricultural Laborers from Mexico: Hearing

on H.R. 6741, H.R. 7559, and H.R. 9036 Before the House

Comm. on Immigration and Naturalization, 69th Cong.,

1st Sess. 7 (1926) (statement of S. Parker Frisselle) (Frisselle Testimony)). “With the Mexican comes a social

problem. . . . It is a serious one. It comes into our schools,

11

it comes into our cities, and it comes into our whole civilization in California.” Migra! 29 (quoting Frisselle Testimony at 6–7).

Agribusiness disagreed with the Nativists on the question of whether Mexican immigrants were here to stay.

The southwestern lobbyists believed that the Mexican migrant is more like a “pigeon,” who “goes home to roost” at

the end of each season. City of Inmates 135 (quoting Frisselle Testimony at 6, 10, 14); see also id. at 136 (quoting

George Clements, “Mexican Indian or Porto Rican Indian

Casual Labor?,” folder 1, box 62, GPCP (Clements Testimony) (“A Mexican would not settle in the United States

because ‘his homing instincts take him back to Mexico.’”)).

Even if they were wrong on this point, and the Mexicans

stayed, Mexicans could easily be deported if need be, as

agribusiness lobbyist George Clements testified in 1928.

Id. at 135–136 (citing Clements Testimony).

Agribusiness also fought racial animus with more racial animus, raising the specter of Black workers from

Puerto Rico who might serve their labor needs if Mexicans could not. As Clements warned, “[t]he one problem

which should give us pause is the negro problem.” City of

Inmates 136 (quoting Clements Testimony). He went on

to explain that if Mexicans were denied entry into the

United States, the “[Puerto Rican] negro will come.” Ibid.

Clements thus forced Nativists to choose between “Mexico’s deportable birds of passage or Puerto Rican Negroes, who, as citizens, would leave the edge of the U.S.

empire to settle within the final frontier of Anglo America.” Id. (citing Clements Testimony).

While the two camps had their differences, the congressional debates of 1926 and 1928 make clear that both

Nativists and agribusiness industrialists agreed that

Mexican immigration presented a “social problem” that

had to be managed. A businessman from Texas put it

12

plainly: “If we could not control the Mexicans and they

would take this country it would be better to keep them

out, but we can and do control them.” Migra! 29 (quoting

Paul Schuster Taylor, An American-Mexican Frontier,

Nueces County, Texas 286 (1971)). When questioned

about the possibility that Mexicans might permanently

settle in the United States, Frisselle offered that “the

Mexican pretty well solves that problem himself. He always goes back [to Mexico].” Frisselle Testimony 14. But

to the extent that more assurances were needed, he promised to keep the Mexican population in check: “We, in California, think we can handle that social problem.” Migra!

29 (quoting Frisselle Testimony at 6). To that end, Frisselle highlighted an ongoing effort to set up labor organizations across the state that could shuffle immigrant

workers from region to region throughout the year in accordance with different crops’ harvesting periods. Frisselle Testimony 13–15. The goal, as he put it, was to get

migrants “out of the congested areas” where they were

“congregating” (like Los Angeles) and “keep them moving.” Id. at 14–15.

Yet as time passed, the facts on the ground changed.

By 1929, 10% of the Mexican population already lived in

the United States, Los Angeles was home to the secondlargest Mexican community in the world, and “small Mexican communities were developing as far north as Detroit.” City of Inmates 136–137. The Nativists may have

once been content with the agricultural industry’s promises that it could, as Frisselle put it, “handle” the Mexican

“problem,” but by 1929 agribusiness’s assurances of Mexican impermanence looked increasingly illusory.

13

D. The Criminal Entry And Reentry Provisions Of The

Undesirable Aliens Act Of 1929 Were Crafted As A Solution To The “Mexican Problem”

Ultimately, the two sides resolved their differences

over how to deal with the “Mexican problem” by creating

the unauthorized entry and reentry statutes. As the 1920s

wore on, Nativists’ patience was wearing thin. But the

economy of the Southwestern United States remained

critically dependent on Mexican immigrant labor. Crafting a legislative policy that imposed draconian limits on

the number of Mexicans who could cross the border was

politically infeasible, even if both sides of the debate

shared a white supremacist disdain for the Mexican immigrant community. The ground was fertile for a compromise, and Senator Coleman Livingston Blease—with the

help of Secretary of Labor James Davis—proposed a way

to mollify both the Nativists and the agribusiness lobby.

His idea would eventually become the Undesirable Aliens

Act of 1929, including its provisions criminalizing unauthorized entry and reentry after deportation.

According to one biographer, Senator Blease exhibited a “Negro-phobia that knew no bounds.” City of Inmates 137 (quoting Kenneth Wayne Mixon, The Senatorial Career of Coleman Blease 5 (1967) (The Senatorial

Career) (M.A. thesis, University of South Carolina)).

Blease began his career in government in the South Carolina state assembly, where “his first legislative proposal

was a bill to racially segregate all railroad cars in South

Carolina.” Ibid. He later became the state’s governor before being elected to the U.S. Senate in 1925. Ibid.

Senator Blease telegraphed his views on race openly

during his single term in Congress. For example, he

spoke out against the establishment of a world court because he could not stand the thought of a “court where we

[Anglo-Americans] are to sit side by side with a full

14

blooded ‘[n*****].’” City of Inmates 137 (quoting The

Senatorial Career 30).

In another incident, after First Lady Lou Hoover invited the African American wife of a congressman to tea

at the White House, Senator Blease attempted to introduce a formal resolution demanding that the president

and his wife “remember that the house in which they are

temporarily residing is the ‘White House.’” 3 Within the

resolution was the text of a poem titled “[N******] in the

White House,” which Senator Blease asked to be read into

the congressional record. 4 Upon objection from a fellow

legislator, Senator Blease agreed to withdraw it from the

record. 71 Cong. Rec. 2946–2947 (1929). But Senator

Blease wanted to make his reason very clear: “I have accomplished what I wanted by having it read here[.] * * *

[I]n withdrawing it from the record I am doing it because

it gives offence to the Senator from Connecticut and not

because it may give offence to the [n******].” 5

As noted above, Senator Blease did not act alone in

crafting the 1929 Act. He was assisted by Secretary of

Labor James Davis, who was a strong advocate of Dr.

Isaac Stanley-Becker, Who’s Behind the Law Making Undocumented Immigrants Criminals? An ‘Unrepentant White Supremacist.’, Wash. Post, June 17, 2019, http://www.washingtonpost.com/

nation/2019/06/27/julian-castro-beto-orourke-section-immigrationillegal-coleman-livingstone-blease/.

3

Offers “[N*****]” Poem, Providence Evening Trib., June 18,

1929, at 7, 7, https://news.google.com/newspapers?id=hO1gAAAAIBAJ&sjid=uWMNAAAAIBAJ&pg=3029%2C5898411 (Providence

Evening Tribune).

4

Providence Evening Tribune 7; see also 71 Cong. Rec. 2947

(1929).

5

15

Harry H. Laughlin’s eugenics theories. 6 See Hans P.

Vought, The Bully Pulpit 173 (2004). Secretary Davis had

previously warned of the “rat-men” coming to the United

States via the southern border who would jeopardize the

American gene pool. James J. Davis, The Iron Puddler:

My Life in the Rolling Mills and What Came of It 61

(1922). Like others, he criticized the 1924 Act for closing

“the front door to immigration,” while leaving the “back

door wide open.” James J. Davis, Selective Immigration

207 (1925).

After the 1924 Act was passed, Davis sponsored a

study by Princeton economics professor Robert Foerster

on the subject of the “racial problems” of Latin American

immigration. Robert F. Foerster, Report Submitted to

the U.S. Dep’t of Labor, The Racial Problems Involved in

Immigration from Latin America and the West Indies to

the United States (1925). The report was subsequently

incorporated into the permanent records of the Committee on Immigration and Naturalization of the House of

Representatives as it discussed the potential revision of

the 1924 Act. Immigration from Latin America, the West

Indies, and Canada: Hearings Before the House Comm.

on Immigration and Naturalization, 68th Cong., 2d

Sess. 303–338 (1925). In his report, Professor Foerster

provided a racial analysis of Mexico and every country located south of the U.S. border, finding that most of their

inhabitants were Indian, Black, or mixed race, all of which

he described as “dubious race factor[s].” Id. at 334–335.

6

Dr. Laughlin was the director of the Eugenics Record Office, and

was well known for designing a model sterilization law that many regimes, including Nazi Germany, had used as a template. Mae M.

Ngai, Impossible Subjects 24 (2004); Laughlin’s Model Law, Harry

Laughlin and Eugenics: A Selection of Historical Objects from Harry

H. Laughlin Papers, Truman State University, https://historyofeugenics.truman.edu/altering-lives/sterilization/model-law/.

16

He strongly advised that further immigration from south

of the border be curtailed because “when an immigrant is

accepted by the country, a race element or unit is added

into the race stock of the country.” Ibid.

Senator Blease and Secretary Davis also found allies

in the House of Representatives. First there was Representative John C. Box, discussed supra, who considered

the goal of immigration law to be “the protection of American racial stock from further degradation or change

through mongrelization.” 69 Cong. Rec. 2817 (1928). The

second was Representative Albert Johnson, Chair of the

House Immigration and Naturalization Committee, who

also headed the Eugenics Research Association. Daniel

Okrent, The Guarded Gate: Bigotry, Eugenics, and the

Law that Kept Two Generations of Jew, Italians, and

Other European Immigrants out of America 271, 326

(2019). Turning to legislation that would exclude the

“Mexican race” following the 1924 Act, Representative

Johnson explained that while prior reform was economically motivated, now “the fundamental reason for it is biological.” Id. at 3 (quoting Albert Johnson, Immigration,

a Legislative Viewpoint, Nation’s Bus., July 1923, at 26,

26).

In 1929, Senator Blease and Secretary Davis saw an

opportunity to broker a legislative compromise that would

address the political debate over Mexican immigration.

Their idea would not impose any cap on authorized immigration—as had been fruitlessly attempted—but instead

would regulate so-called “unauthorized” migration. They

thus proposed legislation that would criminalize unlawful

entry into the United States for the first time in the nation’s history. City of Inmates 137. “[U]nlawfully entering the country” would become a misdemeanor punishable

by a $1,000 fine, up to one year in prison, or both. Id. at

138 (quoting Act of March 4, 1929, Pub. L. No. 70-1018, ch.

17

690, § 2, 45 Stat. 1551). “Unlawfully returning to the

United States after deportation” was classified as a felony, punishable by a $1,000 fine, up to two years in prison,

or both. Ibid. (emphasis added). Agribusiness was

onboard; they liked the idea of taking advantage of inexpensive labor when they needed it, and making those people disappear at the end of the harvest. See id. at 138 (citing Frisselle Testimony at 8 (“We, in California, would

greatly prefer some set up in which our peak labor demands might be met and upon the completion of our harvest these laborers returned to their country.”)).

Notably, the statute did not punish overstaying a visa,

only unauthorized entry and reentry after deportation.

Thus, it authorized punishment for those who crossed by

land—who were overwhelmingly Mexicans—rather than

those who overstayed their authorized period of admission—who were overwhelmingly Europeans.

II.

THE REENACTMENT AND RECODIFICATION

OF THE CRIMINAL ENTRY AND REENTRY

STATUTES FAILED TO PURGE THEIR UNDERLYING RACIAL ANIMUS

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 cleansed—

the 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 nineteenth 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 post1952 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.

7

See Act of Nov. 18, 1988, Pub. L. No. 100-690, Title VII, § 7345(a),

102 Stat. 4471; Act of Nov. 29, 1990, Pub. L. No. 101-649, Title V,

§ 543(b)(3), 104 Stat. 5059; Act of Sept. 13, 1994, Pub. L. No. 103-322,

Title XIII, § 130001(b), 108 Stat. 2023; Act of Apr. 24, 1996, Pub. L.

No. 104-132, Title IV, §§ 401(c), 438(b), 441(a), 110 Stat. 1267, 1276,

1279; Act of Sept. 30, 1996, Pub. L. No. 104-208, Div. C, Title III,

§§ 305(b), 308(d)(4)(J), (e)(1)(K), (14)(A), 324(a), 110 Stat. 3009-606,

3009-618 to 3009-619, 3009-629.

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.

31

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

BENJAMIN S. ZWEIFACH

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street NW

Washington, DC 20006

(202) 223-7300

AHILAN ARULANANTHAM

HIROSHI MOTOMURA

UCLA SCHOOL OF LAW

385 Charles E. Young Dr. E.

Los Angeles, CA 90095

(310) 825-1029

MARCH 2021

ALEXIA D. KORBERG

FARRAH R. BERSE

MELINA MENEGUIN LAYERENZA

RENATA M. O’DONNELL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(212) 373-3000

akorberg@paulweiss.com