Tuesday, April 27, 2021
Official Photo of Supreme Court website
In her preview of the case for SCOTUSBlog, Jennifer Koh describes the issue before the Court as follows:
"Non-U.S. citizens who are deported and later return to the United States can be prosecuted for criminal re-entry. In order for federal prosecutors to sustain a charge for criminal re-entry under 8 U.S.C. § 1326, they must prove the existence of a prior removal order adjudicated by a federal immigration agency. But if the earlier removal order is invalid on legal grounds, then how can the noncitizen use that fact to defend against the criminal re-entry prosecution?"
Koh notes that, "an amicus brief [details] the explicit racial animus that led to the initial enactment and continued re-enactment of the re-entry statute. They urge the court to construe the statute in favor of Palomar-Santiago in light of racial insubordination concerns." The remarkable Brief for Professors Kelly Lytle Hernandez, Mae Ngai, and Ingrid Eagly as Amici Curiae Supporting Respondent boldly contends in an argument heading that "I. RACIAL ANIMUS INFECTS THE ORIGINS OF 8 U.S.C. 1326" and elaborates as follows:
"To claim that the Undesirable Aliens Act of 1929 was founded in anything but deep-seated racial animus is to ignore the words spoken on the Congressional floor in the 1920s that led to its passage. The congressional debates made clear that legislators saw Mexican immigrants as a “social problem” to be controlled because they were a threat to white hegemony. This perceived threat was the animating motivation behind the eventual passage of the Act and, in particular, the criminal entry and reentry provisions."
Ultimately, Koh suggests that the decision in the case may have dramatic impacts on criminalizing immigration: "Ultimately, the limits of the government’s authority to criminalize migration and the legitimacy of the administrative immigration system appear to be at stake."
UPDATE (APRIL 29): Jennifer Koh for SCOTUSBlog recaps the oral arguments. Her conclusion:
"It is unclear how the court is leaning. Justices Neil Gorsuch and Brett Kavanaugh asked no questions of either party. Justices on differing sides of the court’s political aisle both expressed sympathy for Palomar-Santiago and conveyed a measure of skepticism over the implications of the substantive invalidity of the removal order. Although an amicus brief from several immigration law scholars detailed how racial animus motivated the enactment and continuation of the re-entry statute, racial justice concerns did not arise at all. The decision will likely turn on how a majority of the justices view the significance of the validity of the prior removal order, the influence of constitutional norms on the court’s reading of the statute, and the court’s assessment of the extent to which administrative remedies were available to Palomar-Santiago."