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Paul, Weiss Files Pro Bono Amicus Brief on Behalf of Immigration Scholars in U.S. v. Palomar-Santiago

Paul, Weiss recently filed an amicus brief in the U.S. Supreme Court on behalf of professors and immigration scholars Kelly Lytle Hernández, Mae Ngai and Ingrid Eagly in United States v. Palomar-Santiago.

The amicus brief supports the respondent, Refugio Palomar-Santiago, who faces prosecution under the federal statute that criminalizes unauthorized reentry into the United States following removal, Section 1326. Mr. Palomar-Santiago had previously been ordered removed due to an immigration judge’s legally incorrect determination that he had committed an aggravated felony that rendered him removable. After the government sought to prosecute him for reentering the country based on that invalid removal order, he persuaded the Ninth Circuit that he had satisfied statutory requirements to challenge the determination and have his indictment dismissed. The government petitioned for certiorari and, recognizing a circuit split, the Supreme Court agreed to review the case.

Our amicus brief discusses the history behind Section 1326 and its companion misdemeanor provision that criminalizes unauthorized entry. Both statutes were enacted in 1929 to explicitly address the so-called “Mexican problem” presented by the growing immigrant community. The laws were championed by notorious white supremacist Senator Coleman Livingston Blease and others as a compromise to balance the interests of their “Nativist” allies, who were concerned that Mexican immigration would “dilute” the “race stock of the country,” and agribusiness, which shared similar racist views but depended economically on the migrant workforce. Our amicus brief is informed by and incorporates the award-winning scholarship of Professors Hernández, Ngai and Eagly, and presents evidence from the congressional record, including explicit statements from the lawmakers themselves concerning their (racist) views toward Mexican immigration.

The brief also explains how the reenactment and recodification of Sections 1325 and 1326 in 1952, which took place against a backdrop of growing anti-Mexican sentiment and targeted border enforcement, failed to purge the original racial animus that motivated the statutes’ passage. The brief also makes the case that Congress has failed to meaningfully grapple with the racist legacy of these two sections to this day. Given that troubling history, and the Supreme Court’s repeated command to “purge racial prejudice from the administration of justice,” the three scholars urge the Court to resolve the narrow statutory question before it in favor of Mr. Palomar-Santiago.

The Paul, Weiss team included litigation partner Alexia Korberg, counsel Farrah Berse, associates Benjamin Zweifach, Melina Meneguin LayerenzaRenata O’Donnell and Patrick McCusker; and pro bono attorney Tanaz Moghadam.

April 9, 2021

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