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A Guatemalan national accused of reentering the United States illegally has presented “strong and disconcerting evidence” about the role racism has played in the adoption and revision of U.S. immigration laws but did not prove that racial animus motivated Congress to enact the crime he’s charged with, a federal judge has ruled.

While U.S. District Judge Michael H. Simon denied Agustin Machic-Xiap’s motion to dismiss an indictment charging him with illegal reentry to the country, the judge didn’t stop there.

He nudged Congress to repudiate what he called the racist history that underlies U.S. immigration law.

“When enacting future immigration legislation, especially comprehensive immigration legislation, a future Congress may explicitly disavow earlier expressions of past racism,” Simon, a U.S. district judge in Oregon, wrote in a 32-page opinion. “Indeed, a healthy respect for the principle of a nation learning from its mistakes may even advise Congress to do so.”

Assistant federal public defender Attorney Alison M. Clark, who represents Machic-Xiap, had argued the illegal reentry charge is unconstitutional because it violates the right to equal protection under the law.

Machic-Xiap was found unlawfully in the U.S. on Aug. 13, 2019, after he was previously arrested and removed from the country in July 2005, the indictment alleges.

Congress originally enacted the criminal offense of illegal reentry with a “discriminatory purpose,’’ and as applied, it has had a disparate impact against people coming to the U.S. from Latin America, as 99% of illegal reentry defendants are Latino, his lawyer argued.

Clark submitted an analysis by Michael T. Light, an associate professor of sociology at the University of Wisconsin-Madison. It showed that cases of unlawfully entering or remaining in the U.S. represented the second most prosecuted offense on federal court dockets across the country from 2015 to 2019, behind only the manufacturing, exporting or trafficking of drugs.

Past and present laws

Congress first criminalized illegal reentry in a law called the “Undesirable Aliens Act of 1929,” and more than two decades later altered the law in an overhaul of immigration laws as part of the Immigration and Nationality Act of 1952.

Under current federal law, any person “who has been denied admission, excluded, deported, or removed” from the U.S. and then “enters, attempts to enter, or is at any time found” in the country without permission from the attorney general or an exemption from that requirement is to be fined or sent to prison for not more than two years, or both.

This later version clarified that reentry offenders can be prosecuted at any time they’re found and wherever they’re located, not just in border states.

Almost everyone whom the U.S. has prosecuted for the crime of illegal reentry under current law or its predecessor has come from Latin America, such as Mexico, Central America or South America, the judge’s ruling said.

“The Court finds that racism has permeated the official congressional debate over United States immigration laws since the late 19th and early 20th centuries, including the 1929 Act,” Simon wrote.

History of a 1929 law

Simon described some of the history leading to the 1929 crime of illegal reentry. It developed out of a “compromise” between agricultural business leaders in the southwestern part of the U.S. who relied on “undocumented” people from Mexico and Central America for cheap labor and those in Congress who viewed immigrants from Latin America “as a threat to blood purity’’ in the country, Simon wrote.

The judge quoted Kelly Lytle Hernandez, a history professor at UCLA, who testified that Congress designed much of its immigration policy in the late 19th and early 20th centuries “to filter out undesirable immigrants.”

Although some in Congress in 1952 hoped that the overhaul of the country’s immigration law would “eliminate the bigotry of earlier immigration legislation,” other lawmakers continued to make statements with “overt racial, ethnic or religious prejudices,” the judge wrote.

The judge said Machic-Xiap’s lawyers demonstrated that many in Congress casually used a racial slur toward Latino people in describing the Immigration and Nationality Act when it was being considered.

He said it was “evidence that at least some members of Congress harbored racial animus toward immigrants from Latin America.”

Prosecutor arguments

Prosecutors had argued that the racial epithet wasn’t derogatory when Congress used it in 1952 because it was an “accurate” description of Mexican immigrants who illegally entered the U.S. by crossing the Rio Grande River.

“The Court does not find this argument persuasive; reducing an entire population to a fleeting condition of a subset of that population is precisely what makes the term a slur,” Simon wrote.

The judge found, though, that Machic-Xiap did not satisfy “his heavy burden of proving that racism motivated Congress” to adopt the 1952 revision to the illegal reentry law.

Providing that racism “motivated” a specific congressional act is not easy, the judge wrote, noting that he’s unaware of any federal appellate decision that has held an act passed by Congress was motivated by racial, ethnic or religious animus. Although illegal reentry prosecutions have disproportionately affected people coming to the U.S. from Latin America, there must be evidence that Congress, as a body, “intended that disparate effect,” he wrote.

“Without such evidence, the Court may not, consistent with both established Supreme Court precedent and appropriate regard for the separation of powers among the branches of government, strike down a facially neutral congressional enactment as unconstitutionally motivated,” the judge concluded.

Simon, though, suggested Congress could learn from its past.

“The Court notes however, that nothing restrains a future Congress from explicitly disavowing earlier expressions of racism when passing future immigration legislation, especially comprehensive immigration legislation. Indeed, that may be a tangible, responsible, and meaningful sign of progress, but it is a decision for Congress to make, rather than for a court to impose.”

Assistant Federal Public Defender Elizabeth Daily is co-counsel with Clark in Machic-Xiap’s defense. Assistant U.S. Attorney Sarah Barr is the prosecutor.

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