Race and the Impact of the First Crimmigration Controls Today
摘要
In the United States, scholars have turned sustained attention to systems of racial subjugation. Post-emancipation policies that replicated the conditions of slavery on race-neutral terms, particularly laws related to the criminal legal system, are today subject to increased study and scrutiny. In immigration legal scholarship, numerous scholars have likewise highlighted how immigration restrictions proceeded from racial exclusion in explicit to implied terms. In the late Nineteenth Century, the very first federal immigration restrictions, openly targeted Chinese nationals for exclusion and deportation. More recently, a growing body of “crimmigration” scholarship has documented how race-neutral legislation criminalizing immigrants occurred in parallel to mass incarceration of Black Americans, beginning in the 1980s and continuing into the present day. Yet, the earliest crimmigration laws predate those enactments, having existed for nearly one hundred years. This chapter analyses how race motivated these earliest laws and exposes their disproportionate racial impacts today. In the 1920s, federal immigration laws created criminal penalties for unlawful entry. The legislative and historical records demonstrate that these laws, sections 1325 and 1326 of Title 8 of the U.S. Code, were designed to penalize and exclude Mexican nationals. In recent years, these first crimmigration laws have bloated the docket of the federal court and offered the predicate offenses for which parents were imprisoned and separated from children under the Trump administration’s “zero tolerance” policy. In 2023, a U.S. court of appeals overturned a 2021 district court ruling § 1326 unconstitutional on grounds of equal protection, finding the evidence “insufficient to establish that [the law was enacted] with racial animus.” Recently, reports have emerged suggesting that nationals of Muslim-majority countries have been disproportionately prosecuted for irregular migration at the U.S.-Mexico border. While resistance efforts through litigation have called some attention to racially unjust immigration enforcement, calls for repeal have failed to translate into reform.