The INA was not intended to ‘advance equity for all’, but Congress has endeavored to ensure it is fair

 A three-judge panel of the Ninth Circuit this week reversed a district court decision finding the criminal reentry provision in section 276 of the Immigration and Nationality Act "Was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons" and that the government had failed to show that the provision would not "Have been enacted absent racial animus".

The circuit court quoted prior Ninth Circuit precedent, which explained this is "a 'continuing' offense that 'commences with the illegal entry, but is not completed until' the defendant is discovered".

Specifically, she found that section 276 of the INA: has a "Disparate impact on Latinx individuals"; that the predecessor criminal ground for illegal reentry after deportation was first included in the Undesirable Aliens Act of 1929, a law that "Was first enacted with a racially discriminatory purpose"; that the INA of 1952 - the source for much of the current section 276 of the INA, "Adopts language from the Act of 1929 almost word for word"; and that "The 1952 reenactment" of section 276 "Did not cleanse" it of what she termed "Its racist origins and was also motivated by discriminatory intent".

What those debates failed to mention, the circuit court noted, was either the criminal reentry provision at issue or the criminal prohibition against improper entry in section 275 of the INA. The district court had made much of the fact that the 1952 act was passed over then-President Truman's veto, explaining: "The Court does not rely solely on the evidence from 1929, but also considers contemporaneous evidence from 1952" including "Congress' failure to revise" the 1952 act "In the face of President Truman's veto statement calling for a reimagination of immigration policy".

The circuit also rejected the district court's finding that the 1952 version of the criminal reentry provision was basically just a cut-and-paste version of the 1929 provision, finding there were significant differences between the two.

In support, the circuit court referenced the Supreme Court's 2020 decision in DHS v. Regents for the proposition that "Latinos make up a large share of the unauthorized alien population" and thus "Virtually any generally applicable immigration policy could be challenged on equal protection grounds".

To its significant credit, Congress has endeavored over the past 71 years to amend the act to serve the interests of the American people free from animus and discrimination, as the Ninth Circuit held on Monday it has done.

https://cis.org/Arthur/Ninth-Circuit-Finds-Criminal-Reentry-Provision-Not-Driven-Racial-Animus