Government documents and stories of migrants who faced mistreatment, family separation, and even death as a result of migration-related criminal prosecutions reveal the extent to which the U.S. government, even under the Biden administration, continues to rely on a nearly century-old law with white supremacist origins to block migrants at the southern U.S. border.
The National Immigrant Justice Center (NIJC), National Immigration Project (NIPNLG), and 22 legal advocacy and rights organizations demonstrate the systemic harm caused by such prosecutions in a friend-of-the-court brief filed today in United States v. Rodrigues-Barios, in which a father from Mexico is challenging his criminal conviction for attempting to re-enter the United States without authorization to be with his U.S. citizen child after having been deported. Mr. Rodrigues-Barios argues that the law under which he was prosecuted, which was enacted 93 years ago by white supremacist lawmakers who promoted lynching and eugenicist beliefs targeting Mexican immigrants, is racist in origin, and unconstitutional. The 1929 law, now codified in Section 1326 of Title 8 of the U.S. Code, makes it a felony to re-enter the country after being deported. The same law also formed the basis for the Trump administration’s policies that separated thousands of children from parents at the southern border.
“Mr. Rodrigues-Barios is being charged with a racist law which continues to have the same effect its drafters intended: convicting, incarcerating, and expelling Latinx folks from the United States,” said NIJC Senior Litigation Attorney Sarah Thompson. “The human costs of Section 1326 prosecutions are impossible to quantify but felt deeply by the individuals separated from their loved ones, detained in punishing conditions, and deprived of asylum and due process rights. Our brief filed today, and years of research, add to the body of evidence showing how a law that that is purportedly used as a deterrent immigration enforcement measure, is actually used to add layers of punishment to noncitizens who often have strong family ties in the U.S. and who may be coming to the U.S. in search of refugee protections. The courts are now seriously questioning whether Section 1326 is unconstitutional — Congress should take note, and support the repeal of the laws that criminalize the act of migration.”
The brief paints a picture of the harm caused by these prosecutions through stories of 13 other migrants who have been subject to it in recent years. One of those individuals, identified by the pseudonym Simón, fled El Salvador twice to escape threats and extortion from a gang who targeted him because of his religious activity. His first attempt to seek protection in the United States resulted in prosecution, a year-long prison sentence, and deportation. Back in El Salvador, members of the gang tried to murder Simón and he fled again. He was apprehended in the United States and referred for Section 1326 unlawful reentry prosecution in late 2019, without being screened for fear of return to El Salvador. Simón was convicted and spent another year and eight months in federal prison while his family resettled in Indiana. He contracted COVID while in custody and his mental health suffered immensely. In 2021 he was transferred to ICE detention, where he remained for six more months and finally was given a reasonable fear interview, which he passed.
“There is a clear and well-documented history showing that Section 1326, the law Mr. Rodrigues-Barios is charged with, was created to further racist and white supremacist ideology,” said Sirine Shebaya, Executive Director of the National Immigration Project. “Our brief demonstrates Section 1326’s harmful impact through stories and trends of people prosecuted under this racist law, which continues to be directed disproportionately at Latinx people. Last year, a federal district court judge found prosecutions under Section 1326 unconstitutional and in violation of the Equal Protection Clause. Congress must take note and move swiftly to repeal this discriminatory law that continues to fuel the mass incarceration of Black and brown people, waste government resources, and tear families apart. In order to create a just and humane immigration system, we need to fundamentally transform our immigration laws; we need a New Way Forward.”
Section 1326 prosecutions add a unique and additional layer of criminal punishment on top of the already-severe immigration penalties that exist for attempting to re-enter the United States, including for those fleeing violence or attempting to reunite with family. Biden’s Justice Department prosecuted 13,533 people under Section 1326 from January to December 2021 alone. Documents recently obtained via Freedom of Information Act litigation show that prosecutions are used to add a criminalizing element to a spectrum of intentionally punitive enforcement programs known as a “Consequence Delivery System” which the administration continues to use with the aim of scaring people from attempting to enter or return to the United States. Border Patrol records from the San Diego sector show how the Biden administration uses questionable metrics to justify the use of enforcement programs that maximize punishment of migrants in the most cost-effective manner, without consideration of the legal or human rights consequences. In July 2021, the administration also announced a “Repeat Offender initiative,” targeting for prosecution single adults who have previously been apprehended and deported. In the crosshairs of this initiative are asylum seekers who are stopped at the border under the government’s Title 42 expulsion policy and then attempt to re-enter to reunite with their families and seek protection.
The New Way Forward Act, which was introduced in Congress by U.S. Representatives Jesús “Chuy” García (IL-04), Pramila Jayapal (WA-07), Ayanna Pressley (MA-07) and Karen Bass (CA-37) in January 2021, would roll back back harmful immigration laws including 8 US Code § 1325 and 1326. To date,the bill has 42 cosponsors in the U.S. House of Representatives and is supported by more than 300 organizations.
Tara Tidwell Cullen, (312) 833-2967, email
Arianna Rosales, (202) 524-9121, email