Systemic Racism and Immigration Detention

Abstract

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether the immigration statute that permits discretionary imprisonment of migrants seeking protection at the United States–Mexico border violates the Equal Protection Clause. In order to answer that question, the Article outlines equal protection intent jurisprudence, beginning with the intent doctrine—the framework used to determine if a facially race-neutral law is discriminatory. In addition, it considers the shortcomings of the intent doctrine and parses plenary power—the legal doctrine that the Court invokes to abstain from exercising jurisdiction or limiting review of immigration laws. After examining the intent doctrine generally and specifically within immigration law, this Article undertakes a limited analysis of a hypothetical equal protection challenge to a facially neutral immigration statute, INA § 235(b)(1)(A), with potentially disparate impact on Latinx immigrants.1 As a result of grappling with the shortcomings of the intent doctrine and the barrier of plenary power, this Article considers ways in which the Supreme Court of the United States could interpret the intent doctrine in a manner that might enhance equal protection efficacy