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Justices asked to strike down immigration law as example of systemic racism

A previously deported illegal immigrant has asked the Supreme Court to overturn his criminal conviction, arguing the law that makes it a felony to sneak back into the U.S. is the product of systemic racism.

Gustavo Carrillo-Lopez says Congress was decidedly racist when it enacted a law against illegal reentry in 1929 as part of the Undesirable Aliens Act. Congress rewrote the law in 1952 and has updated it several times but has never repudiated the racism from 1929, so the law must fall, Carillo-Lopez’s lawyers argue.

“This is not a case in which the mere passage of time or social transformation can be presumed to cleanse the taint of the law’s racist origins,” wrote Ellesse Henderson, the assistant public defender leading Carrillo-Lopez’s defense, in urging the justices to hear the case.

If the high court takes the case, it would present a major chance to explore critical race theory, a legal argument that racism pervades American law and must be rooted out.

At issue is Section 1326 of the immigration code, which makes it a felony for someone deported to return to the U.S. without getting permission. It’s known as the illegal reentry statute.

Carrillo-Lopez’s legal team argues the law was crafted in 1929 by a racist Congress acting on clear “anti-Latino” motives.

Congresses in the 1980s and 1990s amended the statute but didn’t grapple with the racism, the lawyers argued.

“When a legislature takes steps to remedy past discrimination, that discrimination no longer taints current legislation. But when a legislature fails to take those steps, silently amending or reenacting a discriminatory law, the intent of the original discriminatory legislature continues to be relevant,” Ms. Henderson told the justices.

Christopher Hajec, director of litigation at the Immigration Reform Law Institute, said what was on lawmakers’ minds when they rewrote the law wasn’t race, but rather safety and economics.

“The terrible effects illegal immigration has on the wages and employment of Americans, public safety and national security are well known. And the criminal reentry law is crucial in combating illegal immigration. That is why it was reenacted in 1996, not for any discriminatory reason,” he said.

It would take four of the nine justices wanting to hear the case for the high court to add it to the docket.

Carrillo-Lopez, a citizen of Mexico, was deported in 1999, then sneaked back in and earned a felony drug conviction and a misdemeanor spousal abuse conviction. He was deported again in 2012.

He again sneaked in and was arrested for drug offenses in 2019. He pleaded guilty to a drug trafficking charge, then was charged with illegal entry under Section 1326.

Sneaking in illegally is a misdemeanor, but sneaking in after a previous removal is a felony, with the potential of significant prison time depending on other factors such as how many times someone has been deported or whether the previous deportations came after convictions for other crimes.

Carrillo-Lopez won a shocking victory in a federal district court in 2021 when Judge Miranda M. Du, an Obama appointee, sided with him.

“The record before the court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” she wrote.

That was too much even for the 9th U.S. Circuit Court of Appeals, which is usually not shy about blazing ground in immigrant rights. In a 3-0 ruling, the court reversed Judge Du.

Circuit Judge Sandra Ikuta said the law is written neutrally and said Judge Du was wrong to insist there must be an affirmative refutation of past racism for a law to survive scrutiny.

“This conclusion ignores the presumption of legislative good faith, which compels the conclusion that indifference to prior legislation is not evidence of discriminatory animus,” wrote Judge Ikuta, a George W. Bush appointee.

She also rejected the notion that because more Latinos, and particularly Mexicans, are prosecuted the law is racist. She pointed out that Mexico lies on the other side of the southern border, so it makes sense its citizens are the most frequent offenders.

Carrillo-Lopez’s lawyers have cast the case as a chance for the court to decide how far back the courts should look at a law’s history to spot problems.

Mr. Hajec said even if the justices take the case, the illegal reentry statute “passes any reasonable test the court could arrive at.”

A host of immigration advocacy groups and law professors filed with the appeals court denouncing the law.

Asian advocacy groups argued that “racism against Asian immigrants forms the basis of … much of modern immigration law.”

The Southern Poverty Law Center, meanwhile, said judges should demand affirmative denunciations of past racism in legislating because it “serves the important purpose of disrupting structural racism.”

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