The Law That Led To Trump’s Family Separation Crisis Has A Racist History. Now These Attorneys Are Fighting Against It In Court.

“We regularly see people who receive years in prison for what is essentially glorified trespassing.”

Two women sit next to each other with the city visible in the floor-length windows behind them

Kara Hartzler, who worked as a federal defender in San Diego, had a front-row seat to the impact of the Trump administration’s “zero tolerance” policy that was being used to separate thousands of immigrant parents and their children.

Inside the courthouse where Hartzler worked as an attorney with the Federal Defenders of San Diego, hundreds of distraught parents faced criminal charges of entering the US without authorization, which former president Donald Trump used to separate them from their children.

Most of the time, the parents were charged with illegal entry in mass hearings where they pleaded guilty as a group. They were then often sentenced to time served and returned to the same Customs and Border Protection facility where they had initially been detained. But by the time the parents arrived, their children had been sent to shelters, sometimes several states away. To this day, hundreds of families remain separated.

Hartzler and her colleagues at the Federal Defenders of San Diego, who take on a majority of pro bono federal criminal defense cases in the county, came up with a strategy: Challenge the illegal-entry charge. If defense attorneys could prove that it was unconstitutional and inherently racist, a judge would strike the entire thing, potentially affecting hundreds of cases.

Their research into the law's formation bolstered their case. It showed how congressional lawmakers in the early 1900s invoked overt racism to justify the legislation at the time, discussing how the “mixture blood” of white, Native Americans, and Black people would inflict “great penalty” on the US. They also said Mexicans were “illiterate, unclean, peonized masses” who were “poisoning the American citizen.”

The federal defender’s investigation into the laws relied heavily on research already done by UCLA history professor Kelly Lytle Hernández, who discovered and documented how eugenicists shaped these laws.

“This history had to come out,” Hartzler said. “We started doing research trying to figure out a legal framework that would allow us to challenge this systemic racism in the legal system.”

The racist comments made by lawmakers before passing the 1929 law that was the basis for the illegal-entry and felony-reentry statutes would go on to be the linchpin in their legal argument. Instead of denying the illegal-reentry charge, the attorneys would try to get it dismissed by arguing that it was enacted with the purpose of discriminating against Latinos.

It was a novel argument that had never been used before. But even if a judge believes that the laws were conceived with racist intentions, the statutes could still be ruled constitutional if the government can prove they would have been passed regardless.

“We brought this challenge because we believed legally we were right. But also because we believed it was really important to make a record about this law.”

The 9th Circuit is set to rule on the appeal of two cases, one of which is Hartzler’s challenge of the constitutionality of illegal reentry. A favorable ruling would prevent the government from being able to prosecute immigrants on these charges and put them in jail for months or longer in areas covered by the 9th Circuit.

In recent years, illegal entry and reentry were the most prosecuted federal offenses, more so than drug, weapon, and white-collar crimes, according to the Transactional Records Access Clearinghouse at Syracuse University. In November and December 2018, for example, immigration prosecutions accounted for 69% and 65%, respectively, of all criminal prosecutions.

The number of prosecutions for illegal entry and reentry hit a record high in 2019, according to the Justice Department, at 106,312. That number has dropped significantly in recent years since border authorities quickly began to expel immigrants from the US at the border, without their having access to the immigration system, starting in 2020 under a Trump-era pandemic order. That could soon change, though; a federal judge last month gave the government five weeks to stop using the order, known as Title 42.

Hartzler’s argument faced an uphill battle because of the near-absolute authority Congress has over immigration matters. While the number of criminal prosecution referrals fell across the board at the start of the pandemic, those for illegal reentry are starting to rise again under President Joe Biden, a number that could accelerate since the judge struck down Title 42. In April 2022, CBP referred 2,000 immigrants to be prosecuted for immigration offenses, a 31% increase from the same period last year and the highest number in a single month since the beginning of the pandemic.

“You can say, ‘Oh, that was a bunch of men in 1929 who passed those laws,’” Hartzler said. “But that set in motion a chain reaction that’s gotten us to a point today where we still associate people who have crossed the border with illegality.”

When the laws that form the basis of the modern immigration system were passed in the 1920s, some members of Congress openly embraced eugenics, supported segregation, and used racist language.

When Congress passed the National Origins Act of 1924, which restricted how many immigrants could enter the US, particularly non-Europeans, it exempted people from the Western Hemisphere, including Mexicans. This upset lawmakers who wanted to restrict all immigration from Mexico, but those efforts failed under pressure from employers, particularly those in agriculture.

During attempts to restrict immigration from non-European countries, US lawmakers heard testimony from a eugenicist who said that controlling which immigrants were allowed in was the best way to promote “race conservation,” and compared drafters of deportation laws to “successful breeders of thoroughbred horses.”

Sen. Coleman Livingston Blease, a Democrat from South Carolina who defended lynching and supported segregation, proposed a solution regarding Mexican immigrants that would appease nativists and employers: make crossing the border without authorization a crime. It would force Mexican workers to enter only through a port of entry, allowing the US to control how many entered while ensuring that employers had enough of the laborers they depended on. The law making it a crime to enter the US without authorization was approved in 1929.

For employers, undocumented workers became an easily exploitable group who could be threatened with deportation and jail time.

Decades later, the 1952 Immigration and Nationality Act upheld the system established by the 1924 law, though it granted immigration quotas to mostly Western and Northern European countries. The law also reenacted illegal entry and reentry.

In a court filing for one of Hartzler’s cases, she pointed to a 925-page report that served as the basis for the 1952 statute that repeatedly uses the term “wetback” to prove Congress sought to discriminate against Latinos. Sen. Pat McCarran, a Democrat from Nevada and chair of the Senate Judiciary Committee, used “wetback” — a racist term originally referring to Latinos who swam across the Rio Grande — to refer to both authorized and unauthorized immigrants.

“There is a flood of people who come across the boundary. They are called wet-backs, and they come across legally or illegally during the various harvest seasons,” court records quote McCarran as saying during a hearing.

The report would go on to state that the purpose of the US immigration system was to “maintain the balance of the various elements in our white population.”

In court, Justice Department attorneys said that while there was racism behind the enactment of the 1929 laws, the court should focus on the reenacted 1952 version and review it under the standard that gives Congress near-absolute say on immigration matters.

The Justice Department has previously argued in court that “wetback” didn’t necessarily have the same racist connotations as it does today, pointing out that labor rights advocate Cesar Chavez used the term to distinguish between documented and undocumented Mexican immigrants.

The 1952 Congress also didn't pass the provisions with the intent to discriminate, and as a result didn't carry over the racism from its previous iteration, the Justice Department said.

The group at the Federal Defenders of San Diego shared the legal argument with their counterparts across the US. But for a little over a year after they filed the first challenge in July 2020, their efforts went nowhere. Many federal judges wouldn’t even hold hearings on the evidence.

A woman at a desk working on a computer

That changed in 2021, when, for the first time, in an "unprecedented" ruling, a federal judge in Nevada dismissed an illegal-reentry charge for Gustavo Carrillo-Lopez, a Mexican immigrant, on the grounds that it violated his Fifth Amendment rights.

“The Court is aware that proving discriminatory intent motivated the passage of a specific statute is difficult — in fact, unprecedented,” US District Judge Miranda Du said. “But despite the high threshold, the Court cannot deny that when considered as a whole, the evidence indicates discriminatory intent on the part of the 1952 Congress.”

The Justice Department had argued that the law would have been reenacted regardless of whether lawmakers wanted to discriminate because Congress was actually trying to protect US citizens from economic competition, maintain national security, and preserve diplomatic relations with Mexico. Du disagreed and noted that the 1952 Congress made no substantial efforts to address the original racist intentions. Nor was there any attempt to grapple with its racist history or influence in the five times the illegal-reentry provision had been amended since 1952, Du said.

Hartzler couldn’t believe it. Her hope that other judges would take a closer look at their arguments was reignited.

“We brought this challenge because we believed legally we were right,” Hartzler said. “But also because we believed it was really important to make a record about this law.”

​Other judges who have ruled against defendants on these challenges in separate cases have disagreed with Du and said that the Immigration Act of 1990 “cured” the racism in the 1929 and 1952 laws.

The Justice Department has appealed the ruling, arguing in part that the constitutionality of the 1952 laws was assessed under the wrong standard, but also that Mexicans are disproportionately affected because the US shares a border with Mexico that stretches nearly 2,000 miles.

The 9th Circuit will hear arguments Dec. 8 on the government’s appeal to Du’s ruling, but attorneys and experts said the stakes are high and the decisions could have a wide impact.

Cassandra Lopez, an attorney who represented a Mexican immigrant whose case is on appeal before the 9th Circuit, said that if today's Congress has a nonracist reason for the law, lawmakers should make it known in new deliberations on whether to keep it. Because ultimately, she added, hundreds of immigrants still receive federal prison time under what has been proved to be a racist law.

“We regularly see people who receive years in prison for what is essentially glorified trespassing,” Lopez said. “They can’t just keep essentially laundering a racially discriminatory law.”

Benjamin Gonzalez O’Brien, an associate professor of political science at San Diego State University who has provided testimony in these legal challenges, said the laws have been used for over 90 years to try to shape the racial and ethnic contours of the US.

These laws were also the beginning of the association in the US between undocumented immigrants and criminality, which hit a peak during the Trump administration, Gonzalez O'Brien said.

“We need to change the way we talk about immigration, criminality, and mass incarceration,” he added. “Otherwise, we are doomed to repeat the same mistakes, mistakes that carry a high human cost.”

Ahilan Arulanantham, an attorney who wrote a brief supporting the challenge to illegal entry and reentry, represented immigrants facing reentry charges when he was a federal public defender in the border city of El Paso, Texas. Most of them were people who had families after having lived in the US for years and were deported after being convicted of a crime. Some tried to live in the Mexican city of Juárez, which is right across from El Paso, but couldn’t bear being separated from their families and returned to the US, he said.

But they had serious problems if they came back and encountered Border Patrol or other law enforcement agents who learned they had been previously deported, said Arulanantham, who is now codirector of the Center for Immigration Law and Policy at UCLA School of Law. The center has been helping to lead a public awareness campaign around illegal reentry.

“They would go to jail for years sometimes,” he said. “The impact of that is going to go on for years for having come back to see family.”

Efrain Leonides-Seguria, a 46-year-old Mexican man, is one of the thousands of undocumented immigrants who have been charged with illegal entry. Leonides-Seguria said he came to the US chasing the “American dream” he’d often heard about while growing up in the state of Guerrero. In 1997, Leonides-Seguria crossed the border in Arizona and started planting roots.

“I wanted to find out for myself if it was true,” Leonides-Seguria told BuzzFeed News. “But with time, you realize that, yes, you live a bit more comfortably here, but it’s also stressful.”

In the years that followed, Leonides-Seguria had four daughters, a son, and a granddaughter. He made a living working in a paper factory in the suburbs of Chicago and continued practicing martial arts for a few years, a sport he had picked up in Mexico. That was until he was deported in December 2009 after being convicted of driving while intoxicated, according to court records. It was the first of five times he’d be deported, one additional time following another DUI conviction, and the others after being caught by Border Patrol.

Leonides-Seguria was also convicted of aggravated unlawful use of a weapon and sentenced to 18 months’ probation in October 2001, according to court records. In May 2021, he was convicted of aggravated driving under the influence and violating his electronic monitoring. He was sentenced to three years and three months in prison.

He has also been convicted of illegal reentry two times and was sentenced to 10 months for each one, court records show. An illegal-reentry conviction, however, can result in an immigrant being sentenced to up to two years and even as high as 20 years, depending on their criminal record.

Leonides-Seguria said he didn’t know that he could be charged with reentry until he was caught trying to enter the US after his first deportation. Yet despite the prison time, he kept trying his luck at returning after each deportation because he said his children needed him. The first time he was deported, his son and daughter were still in elementary school.

“They truly needed me,” he said. “I wanted to give them a regular life, not a bad life, not an outstanding life, but a normal, regular life.”

He never expected to spend so much time behind bars; nor did the men detained alongside him.

“You lose a great deal of your time locked up,” Leonides-Seguria said. “It’s not worth it.”

In September, he lost his bid to get his latest illegal-reentry charge dismissed when a federal judge in Illinois ruled that the DOJ had met the burden of showing the 1929 law would have passed regardless of the racial bias.

If the federal defenders prevail in the 9th Circuit, the government would be prevented from prosecuting immigrants for entering the US without authorization in regions under its purview. It wouldn’t stop the deportations, though. And if it happens, the Justice Department will almost certainly appeal to the Supreme Court.

Studies have shown that punishing immigrants for the act of entering the country without authorization rarely deters them from trying and merely pushes them to take more dangerous routes to enter the US.

Joanna Williams, executive director of the Kino Border Initiative, a nonprofit based on both sides of the Arizona border, said she has seen immigrants increasingly attempt to cross the desert because they want to reunite with their US-citizen children — despite the dangers.

Because a majority of immigrants and asylum-seekers are being quickly expelled back to Mexico or their home countries under the Trump-era pandemic policy, those parents will most likely not be criminally charged, but they’ll almost certainly be blocked from entering the US if caught, Williams said.

And even when immigrants know they could face federal prison time for crossing, they still weigh the risks against being separated from their children, she added.

“How do you weigh being separated from your kids for the rest of your life between going to jail?” ●

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