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Forget drugs or fraud. The most common type of case federal prosecutors bring is against illegal immigrants who try to reenter the country after having been ousted and almost all of those charged are Hispanic.

Now federal courts are grappling with whether that imbalance means the law itself is racist.

One court in Nevada has already ruled that it does. Judge Miranda Du, a President Obama appointee, said the section of law that makes it a felony for someone previously ousted to sneak back into the U.S. has racist antecedents dating to the 1920s.

Though the law has been updated since then, Congress has never confronted the racist, nativist roots of the law, the judge ruled. She said that, coupled with the overwhelmingly Hispanic targets for prosecution, makes the law unconstitutional.

She tossed the governments case against Gustavo Carrillo-Lopez.

The Biden administration has appealed and the 9th U.S. Circuit Court of Appeals is hearing the case, which has reverberated across the legal world and is shaping up as a significant test of the critical race theorys approach to criminal law.

If we are trying to uproot systemic racism, that means we have to consciously understand what motivated a laws original enactment, and then make the conscious decision whether we want to change it or whether we want to continue it, Ahilan Arulanantham, co-director of the Immigration Law and Policy Center at UCLA School of Law and one of the leading scholars on the history of the illegal-reentry law, told The Washington Times in an interview earlier this year.

The illegal reentry law, section 1326 of Title VIII of the U.S. Code, governs reentry of removed aliens.

Those guilty of the basic offense can be sentenced to two years in prison. If they had a drug record or a basic felony on their criminal record they could earn 10 years, and if they had an aggravated felony record they could get up to 20 years.

Usually, sentences are much shorter, but the law has serious teeth and a lot of targets.

Disparate impact

According to a report last month by the Bureau of Justice Statistics, there were 30,636 prosecutions in fiscal year 2018 under Section 1326. Thats more than 36% of all federal prosecutions. Drug trafficking, the second most common, only accounted for half that many.

The BJS study doesnt give an exact racial breakdown for Section 1326 prosecutions, but it does say 98% of all illegal immigrants prosecuted in 2018 were Hispanic, so its a good bet almost all Section 1326 cases were Hispanic.

The study was published after Judge Dus ruling, but she pointed to the overwhelmingly Hispanic demographics of those arrested jumping the border as evidence that Mexican and Latinx individuals are disproportionately affected by the illegal reentry law.

She said that, coupled with the fact that illegal reentry was first criminalized by Congress in 1929, by lawmakers who were influenced by the Jim Crow era of racial segregation and were looking to tamp down on Mexican migration.

Section 1326 itself was written in 1952 again with arguably discriminatory intent, Judge Du concluded and its penalties were stiffened in 1988, 1990, 1994 and 1996.

The judge said those Congresses never explicitly came to terms with the racist antecedents.

Kris Kobach, former secretary of state in Kansas and a prominent legal figure among groups who want stricter immigration, was stunned by the ruling.

The judges conclusions are ridiculous, he said. The law is neutral on its face, and it is justified by a multitude of legitimate reasons having nothing to do with race. It is nonsense to declare that the statute must be cleansed in some way because an unknown number of legislators who supported a predecessor statute a century ago might have been racially biased, he said.

The Justice Department, in its appeal briefs, said Judge Dus math equating the high number of Latinos to racial discrimination ignored the obvious alternative explanation that those numbers are attributable to geography and the high percentage of such individuals among the population of noncitizens unlawfully in the United States.

Or, as Christopher J. Hajec at the Immigration Reform Law Institute put it to The Times earlier this year, when you border Mexico, and just south of that is Central America, youre going to see a lot more illegal immigrants from those places trying to sneak back in.

When youre doing disparate impact you have to compare things with the right things. In the universe of illegal aliens a very large proportion are from Latin America, and thats due to geography and economics, Mr. Hajec said. It follows that a large proportion of illegal entrants whove already been deported are going to be from Latin America, are going to be Hispanic.

IRLI said the point of the law is to deter deported migrants from trying to come back, no matter where theyre from.

The case has forged odd alliances, with IRLI finding itself on the same side as the Biden administration.

Indeed, Homeland Security Secretary Alejandro Mayorkas earlier this year told employees at U.S. Immigration and Customs Enforcement that he thought there should be more prosecutions under Section 1326.

I see cases now where we apprehend and remove individuals that I think need to be prosecuted criminally, he told employees during a virtual town hall this spring. He said he would work with the Justice Department to try to bring more cases.

But Mr. Arulanantham says there must be some reckoning of the laws history, and pointed to his own experience serving for two years as an assistant federal public defender in El Paso.

He figures he handled maybe 150 illegal reentry cases, yet he didnt know the laws origins at the time.

Thats how systemic racism works, its nobodys fault, but we live in a system and unless youre very consciously able to examine it, you just go along with it, he said.

Criminal vs. civil

Carrillo-Lopez, the man at the heart of the Nevada case, was already deported twice, with the most recent expulsion coming in 2012. He snuck back in at an unknown time, and was living secretly in the U.S. Nevada lists a dozen different aliases hes used until he was caught on state drug-trafficking charges in 2019.

He also has a prior felony conviction for drugs and a misdemeanor domestic-violence conviction.

Even if he beats the federal illegal reentry charges, hes not going to be out on the streets soon. Hes serving a life sentence on the drug trafficking charge, with no possibility of parole until 2029.

So far, this appears to be the only case where a judge has tossed the charges over questions about Section 1326. But if Judge Dus ruling stands, he wouldnt be the last.

That would leave a couple options.

Congress could go back and repass the illegal reentry law, or something like it, this time grappling with the history and concluding that whatever the motives of the past, theres a good reason today to have a criminal bar on deported people sneaking back into the country.

But its not clear that Congress would pass such a law again at this time, which opponents say is part of the whole point of performing a systemic racism analysis on the legal code.

Forcing Congress to reenact this statute would be a significant legislative undertaking, particularly when it played a huge role in family separation, Mr. Arulanantham said.

The other option is to live without a criminal penalty, and rely on the civil code and its penalty another deportation.

Even those who are convicted under Section 1326 and serve time about six months, according to the new Justice Department report will usually be deported at the end of it anyway, which raises questions about whether the criminal law is needed as a deterrent.

But there are other implications to a world where laws like Section 1326 are ruled unconstitutional because of racist intentions by Congress at the time.

One target could be gun control laws, such as the Gun Control Act of 1968, which imposed a ban on sale of firearms to felons and created the first federal bar on explosives.

Scholars have argued that law was part of a push to keep firearms out of the hands of the countrys Black residents.

Go here to read the rest:
Critical race theory takes aim at immigration law - Washington Times

A letter to the Minister of Immigration and Asylum, Notis Mitarakis, was sent by the Vice President of the European Commission, Margaritis Schoinas, the Commissioner for Home Affairs, Elva Johansson, and the EU Commissioner for Enlargement and Neighborhood, Oliver Varcheli, who had not responded to the letter. another 8 European counterparts to the European Commission on 9 August 2021, on the instrumentalization of immigration.

The letter states that "efforts by third countries to facilitate illegal immigration to the EU are unacceptable".

In particular, as the letter emphasizes, "the external borders of the Member States are the European borders and their management is a shared responsibility, a position supported by all the Member States and the Commission in many cases, including the European Council, which took place in October 2021 ".

At the same time, the letter talks about the aid measures that should be taken in order to support those Member States that are suffering from the effects of migration pressure.

Finally, the intention is to adapt the Schengen Borders Code and the Common Immigration and Asylum Policy to the data posed by these new challenges, as well as to establish a specific legislative framework to address the issues and consequences of instrumentalization.

SOURCE: -

Read the rest here:
Schinas-Johansson-Varkheli: Efforts by third countries to facilitate illegal immigration to the EU are unacceptable - 9.84

Weve learned a lot about Joe Bidens views on immigration control in the first year of his administration.

He doesnt like it.

Look at the border. Fiscal Year 2021 saw nearly 1.7 million arrests by the Border Patrol at the Mexican border, the highest number ever recorded. During the first four months of that fiscal year (October through January), when Trump was still president, border arrests averaged about 71,000 a month (which is still too much). But the remaining eight months, under the Biden administration, saw the monthly average more than double to about 172,000.

And theyre not just coming from Mexico, or even the northern tier of Central America, anymore. In FY21, 22 percent were from farther afield, a share which has grown to 30 percent over the last two months.

Ask the migrants and they will freely tell you people are coming because they believe, correctly, that Biden is more likely to let them in. On his first day in office, the president suspended the most effective Trump response to border-jumping a policy commonly known as Remain in Mexico. Under that program, illegal immigrants could no longer use phony asylum claims as a gambit to be released into the U.S. Instead, they had to wait across the border in Mexico until their hearing dates.

A federal court months ago ordered the administration to re-start Remain in Mexico rather than just continuing to release illegal aliens. It has only just begun to comply, but in the most limited and grudging manner, at only a few places along the border, with lots of exceptions, guaranteeing that it wont do much good in slowing the flow.

This administration has also refused to enforce immigration laws inside the country. New information shows that during the first five months of this administration, deportations dropped 90 percent from the same period in the pre-pandemic year of 2019.

The ostensible reason for this was a change in priorities to focus on criminals instead of regular illegals. Of course, even under Trump, the vast majority of people who were deported were criminals. But Bidens supposed new focus on criminals actually translated into fewer criminals being deported. Even the number of those convicted of serious crimes murder, rape, aggravated assault, non-marijuana drug-dealing, etc. was less than half what it was in 2020 and barely one-third of the 2019 level.

Not satisfied with letting in more illegal aliens and abandoning the deportation even of criminals, Biden has used formerly narrow legal powers like immigration parole and Temporary Protected Status to grant executive amnesty as widely as possible.

Though amnesty has gone nowhere in Congress, that hasnt stopped the administration from punching a hole in the immigration limits set in law by granting work permits and Social Security numbers to around 1 million illegal aliens. Whats more, it has continued the DACA program, another of these executive amnesties, even after a federal judge ruled it illegal.

Why is all this happening? Many say the presidents party wants more voters, and corporations want more cheap, obedient labor. Both are true but thats not the real explanation.

Instead, the main driver of 2021s immigration fiascos is that the Biden administration doesnt really think the American people have the right to keep anyone out. If you come to the border, we are morally obligated to let you in, and if youre already here, we are morally obligated to let you stay. It wont always work out that way because exceptions have to be made for political expediency, but that is the baseline.

Until that root cause is addressed, little will change.

More here:
2021 Review: Was the Border Biden's Biggest Failure? - NH Journal

E.S. Browning| Palm Beach Post

Santa struggled this holiday season: He was short of elves.

Our ports didnt have enough workers to unload the ships that were stuck offshore full of gifts. Trucking companies couldnt find enough drivers to deliver the goods. Stores needed shelf-stockers. Restaurants couldnt hire enough cooks.

And yet, to our south, thousands of people clamored to get into the country to do jobs like these.

Our response, year after year? We spendmillions of dollars trying to keep them out.

And it isnt easy. The border patrol, it seems, cant find enough people, either.

It all seems surreal. But our dynamic, free-market economy has dealt with labor shortages before. It has a solution, although it isnt pretty. We call it illegal immigration.

No one likes illegal immigration. We wring our hands over our failure to stop it. And then we cheerfully hire millions of illegal immigrants to cut our grass, clean hotels, cook food, stock shelves, work in chicken-processing plants and do other low-paying jobs most Americans dont want.

We think of this as a 21st-century crisis. In fact, our country has been trying and failing to deal with this kind of problem for nearly two centuries.

Opinion: Connecting dots, from immigrants to moneyed conservatives

Commentary: Civic responsibility amid mounting political violence

And: 'Great replacement' fears reek of racism

Back in the 1840s, it was Irish immigrants who did the unpleasant jobs and were unwelcome. We went on to pass laws aimed at keeping outItalians, Germans, Poles, Chinese, Japanese, Pacific Islanders, Mexicans and Jews. First came 19th Century laws aimed at banning almost all Asians. One law specifically banned Chinese women. A 1917 law imposed literacy tests.

Supporters of these laws didnt hide their goal: to protect ethnic purity.Today, many of us count these immigrantsof supposedly low ethnic standards among our treasured ancestors.

And with demand for labor exceeding population growth, our robust economy finds itself needing immigrant labor again.

There are plenty of proposals for bringing in labor in legal, humane ways. But as in 1854, anti-immigrant feeling is widespread. So we do nothing and live with an underground, black-market labor system.One could argue that this ugly system gets the job done, more or less. But is it the best we can do?

It is a survival-of-the-fittest arrangement. People in Central America save money from meager incomes to finance their trips, sometimes paying criminal gangs to help them. They face abuse and even death on their trips. If they dont get in or are deported, they often try again and again. Then they live on societys fringes, doing jobs Americans dont want, to send money to relatives back home. They attend church. And they have been shown to commit fewer violent crimes than American citizens perhaps because they are too busy working.

It is true that immigration can be disruptive. Immigrants from Europe and Asia were disruptive, too. They speak foreign languages and bring different foods, music and cultures. They have always been accused of taking jobs from Americans even during labor shortages like todays.

But our country suffers when a part of our economy is based on skirting the law and maintaining an underclass of fearful people.

We need to find a legal way to admit the resourceful, hard-working people our labor force needs. We ought to pay them fair wages, allow them better living conditions and let them stop hiding.

E.S. Browning is a retired newspaper reporter.Kevin Wagner's Civics Project column, normally in this spot, is on vacation and will return next week.

Originally posted here:
Immigration: There has to be a smarter, more humane way. - Palm Beach Post

AUSTIN (Nexstar) A string of recent deaths among Texas National Guardsmen deployed as part of Governor Greg Abbotts Operation Lone Star is stirring up questions about the mission.

The governor has repeatedly emphasized the importance of these soldiers on our southern border, meant to help respond to the surge in migrants this year.

Tuesday, a spokesperson for the governor noted, Since Governor Abbott launched Operation Lone Star in March, National Guard soldiers and DPS troopers have apprehended over 83,000 migrants, arrested over 9,200 who committed a border-related crime, including smugglers and human traffickers, seized over 200 million lethal doses of fentanyl, and erected strategic barriers to stem the flow of illegal immigration.

Back in early October, he announced more troops would be sent, adding up to 2,500 total.

Last week, Davis Winkie with the Army Times reported a jarring trend among those guardsmen.

The key stressor that all four of these soldiers had in common was, the state of Texas had either asked them to drop their life on two weeks, one week, maybe less notice, Winkie told Nexstar Monday.

Winkie said all four of those guardsmen have died by suicide since the end of October.

The most recent was 1st Lt. Charles Williams, who died last Thursday while on a holiday pass to go home and see his family. He had been leading soldiers out there in Del Rio on the border, and was actually in the same company, in the same unit, as 1st Sgt. Kenny Crutcher who died in November, Winkie explained.

While Winkie said its tough to speculate, the guardsmen deployed on Operation Lone Star have faced some tough challenges.

For somebody who hasnt had to put down their civilian life on that kind of notice, to go on a mission where you dont know how long youre going to be there. You dont know if youre going to be allowed see your family regularly, thats a really significant stressor, Winkie added.

Additionally, guardsmen in the operation have faced delays in payments and cuts to benefits.

In a statement, the Texas Military Department said it could confirm those four deaths, but did not yet confirm they were suicide, citing ongoing investigations.

We take the loss of any service member seriously and prioritize mitigating risk to loss of life in everything we do. We can confirm the loss of these four service members; however, the cause of death and circumstances surrounding each are currently under investigation, a TMD spokesperson said in part.

TMD told Winkie the same thing, but Winkie reached out to those guardsmen best to learn more.

By speaking with family members by speaking with sources with knowledge of the investigations or sources otherwise and involved with the men who died, and then also through official TMD documents that I obtained, all four members died by gunshot wounds that are believed to be self-inflicted, Winkie said.

The deaths are now renewing questions about the need for all 2,500 soldiers to be deployed at our southern border.

With most of them unable to do anything meaningful to address the immigration challenges that we have, and a real challenge with morale that has led to the suicides of four members of the guard, Democratic gubernatorial candidate Beto ORourke said this week. Theyre being asked to participate in political theater

Immigration experts also call the move political, explaining more troops are not the answer.

Our current border crisis is one that has to ultimately deal with the origins and the reasons that people are fleeing. And that is something that the administration is working on, Doris Meissner with the Migration Policy Institute said.

But, that takes time. Meanwhile, local authorities in border towns are grateful for the extra manpower.

Id rather have the state doing what theyre doing than the federal government doing nothing at all, Val Verde County Sheriff Joe Frank Martinez said last month.

But immigration experts also point to the data posted by border patrol each month, showing the number of migrant apprehensions has remained steady since the start of Operation Lone Star in the spring.

Theres no question that border enforcement is in a different phase at this point. But the way to do it is to try to manage it effectively, work together cooperatively, whats happening in Texas, really is political grandstanding, Meissner said.

The governors office said it will continue working with service leaders to ensure all troops deployed have the support they need.

Texas is beyond grateful for the brave men and women of the National Guard and DPS who are diligently and selflessly securing the border in the federal governments absence, the statement continued.

In addition to what the National Guard already offers for mental healthcare, TMD also said it has a team specifically assigned to Operation Lone Star.

There is a behavioral health team assigned to Operation Lone Star with members in each region our task force supports. The OLS behavioral health team practices proactive, face-to-face outreach through education on self-care, crisis mitigation, and resources available, a spokesperson for TMD said in a statement.

Dr. Donald McGeary, with STRONG STAR PTSD research consortium at the University of Texas Health Science Center at San Antonio, said we need to make sure our troops know they have options when it comes to mental health.

The two important ingredients for stress is that something changes, and you have a response to it. In this case, the response can be pretty significant when youre called up to duty, you have plans to do other things, Dr. McGeary said.

For the National Guard, they have a network of individuals who are providing free mental health care to anyone who needs it. So if they dont know who that is, they could reach out to their NCO, if they do have a counselor, or a psychologist or mental health resources available, thats even better, Dr. McGeary explained.

He also urges those who have a friend or family member serving to reach out to them often.

Sometimes with suicide risk, it can be very difficult to talk about it, even though you feel the risk coming, you feel the risk increasing, it can be hard to talk about. But try to take a moment to talk to others about it. So when you trust someone who you know, cares about you and someone you care about, give yourself an opportunity to have it addressed, Dr. McGeary said.

Originally posted here:
String of deaths among Texas National Guardsmen deployed at southern border stirs up questions - KXAN.com