U.S. District Court Judge Cites "Strong and Disconcerting Evidence" on the Racist Origins of 1326

On April 3, 2021 U.S. District Court Judge Michael H. Simon of the District of Oregon issued an important decision in a motion brought by Agustin Machic-Xiap to dismiss a federal criminal charge for illegal reentry. As reported by Maxine Bernstein of the Oregonian, Judge Simon authored a 32-page opinion that carefully reviewed the historical record of the racial animus behind the illegal reentry law, which is codified at 8 U.S.C. 1326. As the judge found:

[T]he 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. Although some members of Congress in 1952 hoped that the INA would eliminate the bigotry of earlier immigration legislation, especially anti-Asian bigotry, other members of Congress at that time continued to express statements exhibiting overt racial, ethnic, or religious prejudices. Indeed, new expressions of prejudice, evidenced by Congress’s frequent use in the 1950s of the derogatory epithet “wetback” to describe immigrants from Latin America, emerged during the debate leading to the enactment of the INA.

Although the court concluded that racial prejudice "played an invidious and overwhelming role" in the original adoption of the law in 1929, he concluded that the law survived the equal protection challenge under current standards. Nonetheless, Judge Simon made clear that "Mr. Machic-Xiap has presented strong and disconcerting evidence about the role that racism has played in the enactment, reenactment, and revision of the nation’s immigration laws, especially those passed in the first three decades of the 20th century." Among other highlights, the decision cites to the essential research of UCLA professor of history Kelly Lytle Hernandez.

Judge Simon concluded his opinion by inviting Congress to "explicitly disavow[] earlier expressions of racism when passing future immigration legislation, especially comprehensive immigration legislation."

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