[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

Last week, in a widely-reported decision, the U.S. Court of Appeals for the Ninth Circuit, once known for its liberalism, reversed a lower court finding that Congress passed a federal immigration law with an intent to discriminate against persons from Mexico.  The law in question bars the unlawful re-entry into the United States of previously removed noncitizens.  The court rejected the lower court ruling even though district court fact findings are rarely disturbed, the evidence included a racial epithet (“wetbacks”) in a Department of Justice letter that was part of the legislative history, and the overwhelming majority of the persons convicted under the statute year in and year out have been Latina/o.  The ruling in United States v. Carrillo-Lopez shows both how dramatically the Ninth Circuit has changed over time and, at the same time, how difficult it is to dislodge systemic racism from the U.S. immigration laws.

Because of its geographic proximity to the U.S./Mexico border, the Ninth Circuit hears more immigration appeals than any other circuit.  Conservatives for years criticized the decisions of the court as too liberal.  Although the Supreme Court reversed some Ninth Circuit’s immigration decisions, it in INS v. Cardoza-Fonseca :: 480 U.S. 421 (1987) affirmed the opinion of Judge Stephen Reinhardt, known as the court’s “liberal lion,” which outlined the evidentiary burden on noncitizens fleeing feared persecution and seeking asylum in the United States.

With conservatives today a majority of the Ninth Circuit’s judges, the days of the court being reasonably labeled as ultra-liberal are long gone.  The opinion rejecting the Equal Protection challenge to the illegal re-entry statute in United States v. Carillo-Lopez was written by Judge Sandra Ikuta, a George W. Bush appointee.  The case turned on the requirement that, to prevail on an Equal Protection challenge to a law, the plaintiff must prove that the government intended to discriminate.  It, of course, is difficult to prove what is in one’s mind and thus is not surprising that Judge Ikuta found that race had not been adequately established as a motivating factor for the illegal re-entry law. 

In so holding, the court rejected the claim that the reference by a Department of Justice official to “wetbacks,” a racial epithet directed at Mexicans, in discussing the law failed to support a finding of a discriminatory intent.  Nor were the stark impacts of Latina/os suffering the overwhelming majority of the criminal convictions under the law sufficient to prove such an intent.  One is left to wonder what, in the court’s eyes, would be sufficient to prove a discriminatory intent.  The court’s restrictive notion of what proves a discriminatory intent likely will limit successful discrimination challenges to, among other things, government policing practices, housing laws, and employment decisions.

As the nation grapples with systemic racism in criminal law enforcement, it has begun to confront such racism in the immigration laws.  In the first comprehensive federal immigration law in the 1800s, Congress passed the Chinese Exclusion Act in an attempt to end Chinese immigration.  The discriminatory tradition lives on in the modern immigration laws and their enforcement.  Bringing race to the forefront of the immigration debate, President Trump crudely denigrated Mexican, Salvadoran, Haitian, and other immigrants and proclaimed the need for more immigrants from Norway.  Exemplifying President Trump’s approach to immigration, the Muslim ban barred the admission of migrants from a group of predominately Muslim nations.

In rejecting the claim that the law targeting Mexicans was motivated by racism, Judge Ikuta in United States v. Carrillo-Lopez emphasized the narrow scope of judicial review of immigration laws and policies, citing, among many cases, the Supreme Court decision to uphold the Muslim ban in Trump v. Hawaii (2018).  The Ninth Circuit’s ruling will make it difficult to challenge the provisions of the immigration laws that are facially neutral (i.e., do not mention race) but have disparate and dramatic impacts on immigrants of color from the developing world.

In the end, the Ninth Circuit’s ruling in United States v. Carrillo-Lopez shows how much things have changed and how much they remain the same.  The Ninth Circuit has become more conservative.  And systemic racism remains at the core of U.S. immigration law and its enforcement.  Moreover, the Ninth Circuit in United States v. Carrillo-Lopez made it more difficult for plaintiffs to successfully challenge many discriminatory laws and policies.

As it turns out, the end of Title 42 did not result in a flood of migrants. In fact, little has changed along the U.S./Mexico border. Migrants—families among them—still come seeking a better life or sanctuary from violence. However, traffic so far has been manageable.

The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law.

The border closure through the Title 42 order was an easy—and arguably unlawful—answer to proponents of halting migration. But there no longer is a public health emergency that justifies the extreme measure of closing the border and denying any and all rights to migrants. Title 42 simply no longer is a viable policy option.

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti.

Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum. Congress added to the U.S. government’s tool box in 1996, such as the creation of expedited removal of migrants apprehended at the border without a credible asylum claim, and the increased authorization of detention of migrants. Although some of these measures may be criticized (such as deaths in detention, including some reported last week), they are preferable—and legal—alternatives to an unsustainable and unlawful system of closed borders.

The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is improving our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so it operates efficiently and has the confidence of the American people.