A federal judge ruled for the first time in U.S. history that a provision of U.S. immigration law, which makes it a felony for someone to reenter the United States after having been deported is unconstitutional because of its racist origins. Judge Miranda Du of the U.S District Court in Nevada threw out a case against an immigrant who unlawfully returned to the U.S. after deportation. Federal officers brought a felony charge against him based on the Undesirable Aliens Act of 1929. This law makes it a criminal misdemeanor to enter the U.S. illegally, and a criminal felony to re-enter the U.S. These criminal—not civil—penalties carry harsh consequences. In recent years, these two “entry-related offenses” have made up the majority of all criminal prosecutions in federal court.
Judge Du held that this law and others come from racist, biased ideas. The judge described the racist history of this law. At the time the provision was first enacted into law, the U.S. immigration system was based on an explicitly racist quota system intended to keep southern and eastern Europeans out of the United States. The lawmakers and so-called scientific experts who helped create this system were firm believers in eugenics: the idea that white people whose ancestors came from northern and western Europe are a distinct race that is genetically superior to people from other parts of the world.
The Undesirable Aliens Act was explicitly intended to keep Mexican immigrants out of the country. After the Act became a law, it punished many immigrants, Mexicans most of all. Judge Du ruled that the Undesirable Aliens Act is discriminatory and unconstitutional.
Judge Du’s decision is a step toward justice in American immigration policy. Many immigration laws still in place today are rooted in racism and white supremacy. Professionals and activists are paving the way to end racism in immigration law. In the future, similar decisions in other federal courts could reinforce this new trend. This could make a positive difference in the lives of many of our clients and their families.
Many Americans of color live in fear of unfair treatment under the law, whether they are citizens or not. This decision is a beacon of hope for families who have built livelihoods in this country. This nation has the opportunity to come together to end racist immigration policy.