Paul, Weiss Files Amicus Brief on Behalf of Immigration Scholars in United States v. Rodrigues-Barios

Paul, Weiss filed an amicus brief in the Ninth Circuit on behalf of leading professors and immigration scholars Mae Ngai, Ingrid Eagly, David G. Gutiérrez, George J. Sánchez, Daniel Tichenor and Devra Weber. The amicus brief supports the appellant, Manuel Rodrigues-Barios, who seeks to vacate his conviction for unauthorized reentry into the United States after deportation under 8 U.S.C. § 1326 on the grounds that the statute is unconstitutionally tainted by racial prejudice since its enactment in 1929. In the brief, the amici present historical evidence of racial animus from their award-winning scholarship and from the congressional record, including explicit contemporaneous statements from lawmakers themselves concerning their racist views toward Mexican immigration.

The brief explains that the statute criminalizing unauthorized reentry, Section 1326, was enacted in 1929—alongside a companion provision criminalizing unauthorized entry—to address the so-called “Mexican problem” presented by the growing immigrant community. The brief first discusses earlier efforts by lawmakers to restrict non-white immigration, including by developing draconian border inspection requirements and immigration caps keyed to decades-old demographic data that favored certain white European immigrants— efforts that were only briefly limited by growing Southwestern demand for Mexican immigrant labor.

In 1929, notorious white supremacist Sen. Coleman Livingston Blease, with assistance from leading eugenics advocates, brokered a compromise between “Nativist” allies, who were concerned that Mexican immigration would “dilute” the “race stock of the country,” and Southwestern agribusiness, which shared similar racist views but depended economically on the migrant workforce. Their idea, which became the Undesirable Aliens Act of 1929, would not restrict authorized immigration through civil enforcement mechanisms, as previously attempted, but instead would deploy criminal law to police so-called “unauthorized” migration for the first time in U.S. history. Unlawful entry would become a misdemeanor punishable by a $1,000 fine, up to one year in prison, or both, and unlawful return following deportation would be a felony punishable by a $1,000 fine, up to two years in prison, or both. Under these provisions, now codified as Sections 1325 and 1326 (under which the appellant in this case was prosecuted), agribusiness could take advantage of inexpensive labor to meet peak labor demands, and workers could be returned to Mexico after the harvest. Notably, the scheme was carefully designed to target people crossing the Southwest border, rather than Europeans who overstayed their visas, and it authorized—and continues to authorize—extraordinarily harsh results against those who cross by land who are, by design, overwhelmingly Mexican immigrants.

The brief also explains how the reenactment and recodification of Sections 1325 and 1326 in 1952 failed to purge the original racial animus that motivated the statutes’ original enactment. Indeed, if anything, the only material change to Section 1326 that Congress introduced in 1952 made it easier to prosecute Mexican immigrants for unauthorized reentry by permitting a trial to proceed in any district in which an immigrant defendant was “found” rather than the district in which the defendant specifically reentered the United States (which might be difficult for a prosecutor to establish).

In the decades since their original enactment, Sections 1325 and 1326 have become some of the most prosecuted crimes in the federal docket. Given this troubling history, and the Supreme Court’s repeated command to “purge racial prejudice from the administration of justice,” amici urged the court to reverse and vacate the judgment against Mr. Rodrigues-Barios.

The Paul, Weiss team included litigation partner Alexia Korberg and associates Melina Meneguin Layerenza, Amanda Valerio and Patrick McCusker.

» read the brief