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 Ahead of Ninth Circuit Hearing, Legal Experts Raise Alarm that Immigration Prosecutions Are Likely to Increase after Title 42 Expulsions End

On Thursday, December 8, the Biden administration is expected to appear in federal court to defend a nearly century-old law, first championed by white supremacist legislators, which has been used to criminally prosecute thousands of asylum seekers and separate families seeking safety at the U.S. border.

In a press briefing, a panel of legal experts discussed the upcoming arguments in USA v. Carillo-Lopez, a case challenging 8 USC § 1326 – the law used to criminally prosecute people for reentering the United States without permission after deportation – on the grounds that Congress enacted it for overtly racist purposes, and that the government since has used it in a discriminatory manner. A fact sheet about the case and origins of the Section 1326 law is available here.

The Biden administration has said it will increase its reliance on migration prosecutions like Section 1326 as it prepares to end the Title 42 expulsion program, which both the Trump and Biden administrations have used since 2020 to block people from seeking asylum protection at the border.

Lawyers and experts who have contributed to briefing shared the following statements in advance of Thursday’s hearing:

Kelly Lytle Hernandez, professor & Thomas E. Lifka Chair of History, UCLA: “In 1929, Congress cinched together a whites-only immigration regime by banning, slashing, and criminalizing non-white immigration to the United States. Since then, Congress has only doubled down on these provisions. Today, immigrants arriving from Mexico and Central America are the ones primarily targeted for prosecutions which were first invented back in 1929 by eugenicists who were committed to slashing, if not ending, Mexican immigration, namely non-white immigration, arriving from south of the U.S.-Mexico border. I want to congratulate and thank the federal defenders who are taking on this living relic of the nation’s whites-only immigration regime.”

Kara Hartzler, federal public defender, San Diego: “We believe it’s incredibly important, no matter what happens in court, to bring this history out and to make it known how the United States is choosing to use its resources by putting so much emphasis and money into prosecuting a law that was designed to enshrine white supremacy. These challenges are not just in the Ninth Circuit, they are going up in many other circuits as well. Our goal here is really to not only bring a legal challenge, but also bring this message of whether this is the kind of law that we want to spend our federal prosecutorial resources on.”

Ann Garcia, staff attorney, National Immigration Project: “The threat of prosecution and incarceration does not stop people from moving across borders to be able to reunite with their families or for other reasons. To put it simply, these laws are not only ineffective for the government’s stated purpose, they’re inhumane as they tear families apart and cause widespread harm to communities. As the data makes clear, they are not only racist in their origins but also in their current impact.”

Jesse Franzblau, senior policy analyst, National Immigrant Justice Center: “As the Biden administration is winding down the Title 42 expulsions, they are considering a new set of punitive ‘migrant restriction’ measures similar to Trump policies, which reportedly include a new asylum ban and increased immigration prosecutions. This should set off alarm bells given the racist origins of the laws behind immigration prosecutions and the discriminatory and devastating impact the laws continue to have. It’s tragic that the Biden administration is considering ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border.”

Ahilan Arulanantham, faculty co-director, UCLA Center for Immigration Law & Policy: “This is an important historical moment because it gives the Ninth Circuit the opportunity to either help eradicate the white supremacy embedded in our immigration laws, or attempt to white wash it.”

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The National Immigration Project  (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Learn more at nipnlg.org. Follow NIPNLG on Facebook, Twitter, and Instagram at @NIPNLG.

The National Immigrant Justice Center is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education. Visit immigrantjustice.org and follow @NIJC on Twitter.