The Segregationist-Inspired Law That Joe Biden Just Can’t Quit

On Jan. 17, 2020, three masked men banged on the door of the house where a young woman we’ll call Alicia was hiding in San Vicente, El Salvador.

The men threatened to break in if no one answered. Her cousin opened the door, and the three went straight for Alicia ― grabbing her hands, stripping off her clothes and raping her. The last thing she heard before losing consciousness was that they’d kill her if she told the police.

But her cousin had already fled and called the police. The masked men saw cops approaching, scattered in different directions and evaded arrest. Alicia filed a report the next day, and told police that the armed men had repeatedly approached her while out shopping and wanted her to join Mara Salvatrucha, a violent street gang with an international presence. When she refused, they threatened to rape and kill her, then kill her parents.

When the officer called colleagues in Alicia’s hometown asking for a warrant, they said the men were suspected in several homicides. The officer noted in his report that Alicia had nowhere safe to stay.

Alicia tried to escape the violence by fleeing to the United States. She made it as far as Virginia before a state police officer pulled over the car carrying her and several other migrants. They called Immigration and Customs Enforcement. Seeing that she’d entered the United States without authorization the year before, ICE referred her case to the U.S. attorney’s office.

Living in the United States without legal authorization is a civil offense, handled by immigration courts that can issue deportation orders. But crossing the border illegally is a misdemeanor, punishable by up to six months in prison. And anyone with a removal on their record can be prosecuted for the felony of illegal reentry and imprisoned for up to two years, if they have an otherwise clean criminal record, and up to 20 for those convicted of serious crimes.

Congress first passed those laws in 1929, at the urging of a notorious segregationist senator from South Carolina, but invoked them only sporadically until around 2005, when immigration authorities wanted to beef up penalties for jumping the border to deter migrants. Prosecutions have become an increasingly controversial part of the immigration enforcement system, and have accounted for around half of the federal criminal caseload since 2009.

These prosecutions were a key feature of former President Donald Trump’s hardline approach to immigration. In 2018, then-Attorney General Jeff Sessions announced a “zero tolerance” policy requiring all U.S. attorneys in the five districts that touch the U.S.-Mexico border to systematically prosecute every unauthorized migrant Border Patrol apprehended. The family separation debacle that year resulted from the Trump administration extending zero tolerance to parents traveling with their kids, shunting mothers and fathers into criminal courts while their kids remained in civil custody.

With less publicity, Sessions also directed U.S. attorneys in all 94 federal districts to consider illegal reentry prosecutions for any migrants with a prior removal on their record, regardless of their criminal records, ties to the community or fears of returning to their home countries.

That’s what happened to Alicia. Before Trump took office, her lack of a criminal record, the fact that she got caught well outside the border zone, and the extraordinary violence in her case would have all made her a low priority for deportation, let alone federal prosecution.

Instead, she now faces the prospect of a felony conviction and prison time, both of which threaten to torpedo whatever chances she might have for leniency when she goes before an immigration judge.

Public defenders and immigrant rights groups spent the Trump years, especially after family separation, crafting challenges to the illegal entry laws, citing its flatly racist origins and the fact that it targets Latin Americans almost exclusively. Until recently, the best they could do for their clients was to win their release on bail and drag out their cases as long as possible, hoping that the next administration’s prosecutors might drop them.

A large-scale purge of immigration prosecutions cases would be unusual, but also logical for a Democrat. Congressional deadlock on immigration since the early 2000s has meant that presidential administrations have used the power of the executive to ramp up enforcement or dial it back. That’s what Republican George W. Bush did when systematizing immigration prosecutions, and what Democrat Barack Obama did with his policy of “prosecutorial discretion,” which directed ICE to drop deportation proceedings against migrants with family ties and clean criminal records.

Several of the 2020 Democratic presidential candidates, led by Julián Castro, championed repealing the laws criminalizing illegal entry in response to Trump’s family separations. Though Biden wasn’t among them, some defenders imagined his administration might begin to drop at least some of the most egregious immigration prosecutions, as Obama’s had done in immigration court.

Their wish partially came true. Shortly after Biden took office, defenders outside the southern border region stopped seeing Trump-era numbers of otherwise petty immigration offenders getting charged with felony reentry.

But months after Trump’s exit from the White House, cases like Alicia’s still linger in federal court, as the Biden administration inherits the remnants of zero tolerance with no apparent interest in reversing it.

U.S. Border Patrol Agent Joel Freeland patrols at the base of Mount Christo Rey in Sunland Park, New Mexico on September 1, 2021.
U.S. Border Patrol Agent Joel Freeland patrols at the base of Mount Christo Rey in Sunland Park, New Mexico on September 1, 2021.

PAUL RATJE via Getty Images

Neither the U.S. attorney’s office in the Western District of Virginia nor the Justice Department responded to requests to comment on the value of prosecuting cases like Alicia’s.

“I was hopeful they would take a fresh look at a lot of these cases that have been sitting around and be merciful,” said Randy Cargill, the public defender representing Alicia in criminal court. “But they haven’t.”

Zero Tolerance Far From The Border

Before Trump, the federal district of western Virginia, where Alicia was charged, typically saw a handful of illegal reentry cases each year, Justice Department statistics show. They usually involved people with lengthy criminal records or who were facing other charges, federal public defenders there say.

But illegal reentry prosecutions in the district spiked more than 300% over Trump’s term, with more than 60 cases in 2019 and again in 2020.

“Our office saw a dramatic rise in illegal reentry prosecutions,” federal public defender Erin Trodden wrote in an email. “Many of the cases filed previously are still on the docket.”

That pattern appeared to repeat in many of the 89 federal districts far from the U.S.-Mexico border. From 2013 to 2016, which roughly coincides with Obama’s second term, illegal reentry cases outside U.S.-Mexico border districts dropped by an average of 5% per year, according to a HuffPost analysis of Justice Department statistics.

But under Trump, the trend reversed, with felony reentry cases jumping by an average of 20% annually outside the southern border. Of the 24 non-border districts where reentry cases at least doubled between Obama’s second term and Trump’s presidency, 15 were located in the South. The Southern District of Georgia saw the steepest rise, jumping from nine cases to 197 ― an increase of more than 2,000%.

Those numbers may not capture the full picture. Prosecutors often charge felony illegal reentry cases as a misdemeanor illegal entry, though that charge technically applies only when law enforcement catches someone in the act of jumping the border. Most migrants will take the misdemeanor charge if offered, allowing prosecutors to clear the cases quickly. Illegal entry misdemeanors are typically handled in magistrate court and not tallied in federal district court caseloads.

Some of those cases stemmed from the Trump administration’s practice of prosecuting workers for reentry after ICE arrested them in worksite raids ― including at least two single mothers arrested at Mississippi poultry plants in 2019.

Others reflect the Trump administration’s hyperfocus on stacking immigration penalties on every possible person. Some of those prosecuted landed on ICE’s radar as so-called “collateral arrests,” agency-speak for finding someone without legal immigration status in the course of arresting someone else, often a family member.

And in other cases, like Alicia’s, prosecutors are targeting exactly the sort of people that Democrats cited as examples of the logic behind prosecutorial discretion during Obama’s presidency and the need to do away with zero tolerance under Trump’s.

In 2016, three suspected Nueva Generación gang members abducted Jorge de la Mora Cobian in Mexico, and kept him blindfolded in an unknown location while they demanded a ransom from his family. When his family didn’t pay, they cut off one of de la Mora Cobian’s fingers. They eventually let him go but a few weeks later came back, once again asking for money.

Two months after the kidnapping, de la Mora Cobian walked into the United States with his wife and three kids at the San Ysidro border crossing in San Diego to ask for asylum. Immigration authorities separated him from his wife and kids. After a month in detention without knowledge of his family, an asylum officer found de la Mora Cobian lacked “credible fear,” the first step toward claiming asylum. Without a lawyer and relying on suggestions from other detainees, he agreed to return to Mexico instead of appealing.

His wife and kids, on the other hand, passed their credible fear interviews and entered the United States legally. A few days after his deportation, immigration authorities caught him trying to cross into the country around Calexico, in California, and removed him again. Eventually, he made it into the United States, and settled with his family in Washington, where he avoided further problems with the law.

When ICE agents arrested him in 2019 at a traffic stop, prosecutors charged him with felony reentry. A federal judge released him on bond. His criminal case is still pending.

“I’ve had countless guys with minimal criminal histories, people that weren’t dangers to the community ― strictly, in my opinion, petty prosecutions. They would just prosecute everybody,” said Paul Shelton, de la Mora Cobain’s public defender in Washington state. “They may not be charging new cases, but they are not dismissing the ones that are pending.”

Defending A ‘Racist’ Law

At the same time, the Biden administration now finds itself defending the law criminalizing illegal entry in federal court.

In a landmark ruling in August, U.S. District Judge Miranda Du in Nevada found the laws criminalizing illegal entry and reentry unconstitutional, writing that they were passed with racist intent in 1929. South Carolina segregationist Coleman Blease championed the law, and eugenicists widely supported it, with one testifying to a congressional committee that “immigration control is the greatest instrument which the Federal Government can use in promoting race conservation of the Nation,” Du’s order says.

Prosecutors in the Nevada case accepted that Congress passed the 1929 version of the law with racist intent and acknowledged that it targeted Mexicans and other Hispanics. But they pointed out that the modern law comes from the Immigration and Nationality Act of 1952, and targets Latin Americans because of geography rather than discrimination.

Congress, however, copied the illegal entry laws into the Immigration and Nationality Act almost word for word, during a session in which legislators repeatedly referred to migrants with the derogatory term “wetback,” passing a law with that name the same year, the order notes. Du said the INA suffered from the same bias.

Lawyers with the Justice Department appealed the ruling the next day. The quick reaction surprised Kara Hartzler, a federal public defender in San Diego who has also challenged the constitutionality of the illegal entry law on racial animus grounds.

“It’s a racist law and has disparate impact,” Hartzler said. “It’s just as much a racial issue as it is an immigration issue. We’ve raised it in dozens of cases.”

The U.S. Court of Appeals for the 9th Circuit isn’t likely to consider whether Judge Du was right until next year, Hartzler said.

In the meantime, people like Alicia, who is out on bail, wait as their cases drag on, evolving from a vestige of the Trump administration to an unexpected feature of Biden’s.

By tradition, when the party controlling the White House changes hands, U.S. attorneys typically resign to make way for new appointees. This month, the Senate began confirming the first of them into their new positions, including Christopher Kavanaugh for western Virginia.

“She is the poster child for mercy,” Cargill said. “Maybe they’ll take another look at this.”

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