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Immigrant detention facility

In this 2010 file photo, an Orange County Sheriff’s deputy stands in a control room as he keeps a watch over immigration detainees at the Theo Lacy Facility in Orange, Calif. Legal challenges have been filed in Illinois and other states arguing that the federal law criminalizing deported individuals who reenter the U.S. illegally violates the Equal Protection clause in the Constitution.

Jae C. Hong

A Mexican immigrant is challenging a law criminalizing people who reenter the U.S. illegally

A 45-year-old Mexican immigrant, who faces years in federal prison for illegally entering the country after being deported, is now challenging the constitutionality of the federal law he is accused of breaking, according to a motion to dismiss filed in federal court in Illinois.

In May 2021, Efrain Leonides-Seguria was convicted of driving under the influence in Cook County. A month later, immigration officials arrested Leonides-Seguria and charged him with illegally re-entry, a federal crime publishable with up to 20 years. Leonides-Seguria entered the country without inspection in 1997 for the first time. His attorney said in court filings Leonides-Seguria built a life in the United States where his daughters, son and grandchildren live. In 2009, he was deported. A year later, on two separate occasions, he was caught in the U.S. at the Texas border and deported back to Mexico each time. By re-entering the U.S. after having been deported, Leonides-Seguria had committed the federal crime of illegal reentry. In 2011, he was sentenced to 10 months in federal prison. He received the same sentence in 2012 for his second offense, according to documents filed by prosecutors and his defense lawyer.

“Illegal reentry statute violates the Equal Protection clause of the constitution, in that it was passed by Congress with a discriminatory purpose, and has resulted in a disparate impact upon the targeted population here, Mexicans and more broadly, Latinx individuals,” said Anthony Burba, a partner at Barnes & Thornburg LLP.

Over the last two decades, illegal reentry has become one the top federal convictions. In 2019, the U.S. Department of Justice announced the agency prosecuted the highest number of immigrants for illegal reentry in more than 25 years. That year, over 25,000 immigrants were prosecuted for entering the country illegally after being deported.

“The Illegal Reentry Law provides unfair, oppressive leverage to those employers and leaves no legal recourse for the exploited immigrants. Worse, that is why the law was passed and why the law persists to this day,” Burba wrote in the motion to dismiss.

The legal argument includes historical documents and expert testimony and even documentation from similar cases in federal courts in other states.

“This case is part of a set of legal challenges that have been brought all around the country, arguing that the illegal reentry law is unconstitutional because it violates equal protection, it was enacted for discriminatory purpose, and it today has a discriminatory effect,” said Judith Miller, a former federal criminal defense attorney and law professor at the University of Chicago.

For years, Miller represented immigrants facing illegal reentry.

“I handled a lot of illegal reentry cases, you know, learning this history, it’s just extraordinarily disturbing,” Miller said. “I remember standing in a courtroom and I would look over to the side of the courtroom, and you can see what is happening while you’re there. There’s a line of brown men, all of whom are pleading guilty, one right after another to illegal reentry. Experiencing it is disturbing.”

Miller estimates that the annual cost for taxpayers associated with sending immigrants to federal prison for illegal reentry is roughly $500 million.

Publicly available data does not include national origin information for immigrants prosecuted under illegal reentry or Section 1326 of the federal statutes. But more than 97% of the immigrants apprehended at the border in 2000 were of Mexican descent and 87% in 2010, according to the filing.

Immigrants who overstay their visas don’t face illegal reentry criminal charges. About 90% of people who overstay their visas are from countries outside Central America and Mexico, Miller said.

“There’s a distinction between civil law and criminal law. So it is not, in fact, a federal crime simply to be present in the United States without permission,” Miller explains. “The difference between breaking an immigration law versus breaking a criminal law, like illegal reentry, if you break an immigration law, the consequence is you can be deported or removed from the United States. Obviously, that can be devastating for an individual but you’re not sent to prison. If you break a criminal law, like illegal reentry, you can be sent to prison for anywhere from up to two years, 10 years, 20 years.”

The core of the legal argument against illegal reentry comes from the law’s racist history, opponents argue.

Kelly Lytle Hernández is a history professor at the University of California, Los Angeles and a 2019 recipient of a MacArthur Foundation genius grant. She provided expert testimony for the Leonides-Seguria case and another case challenging illegal reentry in Nevada.

“The archival record marks the criminalization of unauthorized entry as a racially motivated act that quickly delivered racially disparate outcomes,” she wrote about the origin and legacy of the Illegal reentry federal charge.

Lytle Hernández has conducted extensive research and written books about the history of the law, including the deliberations that led to its enactment and the political climate surrounding that debate.

Congress started to criminalize entering the country without authorization in 1929. Around that time, tens of thousands of Mexican laborers crossed the border every year to work.

“In a decade now remembered as the ‘Tribal Twenties’ — a time when the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals preached the science of eugenics — many representatives, especially those popularly known as ‘Nativists,’ hoped to restrict and even end immigration to the United States from every region of the world other than western Europe,” Lytle Hernandez wrote. “In the past, they argued, slaveholders had made a terrible mistake by importing Africans to the country in the blind pursuit of profit. Nothing could be done to undo the tragedy of slavery — the introduction of Africans to the country, that is — but, they hoped, new immigration laws would limit the future peopling of the United States.”

By 1924, the National Origins Act was approved setting limits on the number of immigrants allowed from each country every year. American historian John Higham described the new quota system as a “Nordic victory.” But the quota threatened the Mexican labor supply.

“As the president of the Los Angeles Chamber of Commerce explained, ‘We are totally dependent . . . upon Mexico for agricultural and industrial common or casual labor. It is our only source of supply,’” Lytle Hernández wrote.

Under pressure from employers who needed Mexican labor, Congress allowed Mexican immigrants to enter the country but required them to pay a tax, pass a literacy test and health exam. But the decision was met with resistance from politicians who favored white immigrants.

“As one congressmen complained during the 1924 hearings, ‘what is the use of closing the front door to keep out undesirables from Europe when you permit Mexicans to come in here by the back door by the thousands and thousands?’” Lytle Hernández wrote.

Politicians tried to limit the number of Mexican immigrants, by warning white Americans that Mexicans were racially inferior, and called them “mongrels.” Lytle Hernández cited at least two bills in the 1920s that tried to limit the flow of Mexican workers. Advocates of those bills warned, “our great Southwest is rapidly creating for itself a new racial problem, as our old South did when it imported slave labor from Africa,” Lytle Hernández wrote.

Many Mexican migrants evaded the tax and tests by crossing the border without inspection.

During those years, Mexican immigrants from Texas to California faced discrimination, according to Lytle Hernández’s research.

“White and Mexicano children attended separate and unequal schools. Poll taxes and political bosses effectively disenfranchised Mexicano voters. Mexicans had limited employment options outside of agriculture. Police violence against Mexicanos was common. And, where it was most extensive, ‘No Negroes, Mexicans, or Dogs’ signs were posted on restaurant doors,” she wrote.

By 1929, U.S. Senator Coleman Livingston Blease, from South Carolina — who is described in Lytle Hernández’ research as “a proud and unreconstructed white supremacist” — proposed a bill criminalizing unlawful entry to the U.S., citing the large number Mexicans crossing the border without authorization.

Under Blease’s proposal, entering the country unlawfully would be a misdemeanor punishable by a $1,000 fine and/or up to one year in prison. And returning to the U.S. after deportation became a felony publishable by a $1,000 fine and/or up to two years in prison, according to Lytle Hernández’s research.

The business community embraced the bill. S. Parker Frisselle of the California Farm Bureau Federation said, “We, in California, would greatly prefer some set up in which our peak labor demands might be met and upon the completion of our harvest these laborers returned to their country.”

The bill passed in March 1929. An altered version of that bill was part of the Immigration and Nationality Act of 1952. That law is now known as Section 1326, better known as illegal reentry..

Last August, federal judge Miranda Du dismissed an illegal reentry charge against Gustavo Carrillo-Lopez, who was deported in 1999 and 2012. Carrillo-Lopez used the same legal argument offered by Leonides-Seguria — that illegal reentry violates the equal protection clause.

The U.S. Attorney General’s Office declined to comment about the ongoing case in Illinois.

But the agency has challenged Du’s decision.

“The court committed a threshold legal error by probing the motives of legislators decades ago rather than reviewing the current statute under the rational-basis standard, which is the metric that governs equal-protection challenges to laws — such as Section 1326 — that pertain to immigration controls,” read the government’s appeal filed in November 2021.

María Inés Zamudio is a reporter for WBEZ’s Race, Class and Communities desk. Follow her @mizamudio.

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