Federal Law Prohibiting Deported Immigrants From Reentering US Is Unconstitutional Due to Racism: Judge

By Zachary Stieber
Zachary Stieber
Zachary Stieber
Zachary Stieber covers U.S. news and stories relating to the COVID-19 pandemic. He is based in Maryland.
August 19, 2021 Updated: August 19, 2021

A federal judge on Aug. 18 ruled that a 92-year-old law that blocks illegal immigrants who have been deported from reentering the United States violates the U.S. Constitution because it’s “racially discriminatory.”

U.S. District Judge Miranda Du, an Obama appointee, found in favor of illegal immigrant Gustavo Carillo-Lopez, a Mexican native who was charged with reentering the country after being deported twice.

Du said Carillo-Lopez established that Section 1326 of the Immigration and Nationality Act (INA), which bars reentry to deported immigrants, “was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons.”

Latinx is a progressive term that refers to Hispanics.

Du also said the government failed to show that the section “would have been enacted absent racial animus.”

As proof, the judge cited Border Patrol statistics that show that the majority of illegal immigrants apprehended at the southern border were of Mexican descent in 2000, 2005, and 2010.

A U.S. lawyer defending the government in the case didn’t respond to a request for comment.

In an earlier filing opposing Carillo-Lopez’s motion, U.S. attorneys described his argument as thin.

Congress passed a law, the Undesirable Aliens Act, criminalizing unlawful reentry in 1929. Statements made at the time by members of Congress showed a racist intent, the plaintiff argued.

The law was replaced by the INA in 1952.

That means the plaintiff’s argument, which centered on the motivation behind the 1929 law, failed, defendants asserted.

“Fundamentally, because the 1929 law has been replaced, Defendant’s only argument—that Congress’s allegedly impermissible motive in 1929 forever taints subsequent illegal reentry laws—fails. Even assuming Congress’s 1929 illegal reentry law was wholly the result of impermissible racial animus, well-established doctrine holds that such legislative history would have no bearing on the law enacted by a subsequent Congress in 1952,” they wrote.

They also argued that the high number of Mexican and Latin American people charged with illegal reentry wasn’t proof of discrimination, but a product of geography.

Du rejected those arguments.

Epoch Times Photo
Border Patrol picks up illegal immigrants who have just crossed the Rio Grande from Mexico into Del Rio, Texas, on July 20, 2021. (Charlotte Cuthbertson/The Epoch Times)

She said the passage of the more recent act was informed by the law passed in 1929.

“The 1952 reenactment did not cleanse Section 1326 of its racist origins and was also motivated by discriminatory intent,” she wrote.

She also described herself as “unpersuaded” by the government’s position on potential discrimination.

“It cannot be the case that the mere over-policing of certain locations—here the Southern border as opposed to the Northern border—prevents a specific group from raising equal protection challenges. Or that because Mexican citizens will likely make up more unlawful reentries because they are a higher percentage of the overall illegal alien population, they cannot raise equal protection challenges. Ultimately, the law still bears more heavily on those individuals than others, which is the standard that Carrillo-Lopez has met here. The Court accordingly finds that Section 1326 disparately impacts Latinx individuals,” she wrote.

The ruling means illegal reentry charges cannot be filed unless an appeal is filed.

In fiscal year 2020, 19,654 such charges were filed. Nearly 97 percent of the charged were men, and over half had a prior criminal history, according to the U.S. Sentencing Commission.

Some cheered the ruling, including Kelly Lytle Hernández, a history professor at the University of California–Los Angeles, whom Du cited.

“We won!!! In Nevada, Judge Du has declared 1326 (unlawful entry into the US) to be racist and therefore unconstitutional,” Hernández, who describes herself as an “abolitionist,” wrote on Twitter.

Former Rep. Julián Castro (D-Texas) also signaled support, claiming the law “has an incredibly racist history” and speculating that the Biden administration wouldn’t appeal the ruling.

Mark Krikorian, executive director of the Center for Immigration Studies, responded by saying members of Congress should try to intervene if the administration doesn’t appeal.

“Congress passed the law, after all,” he wrote on Twitter.

Zachary Stieber
Zachary Stieber covers U.S. news and stories relating to the COVID-19 pandemic. He is based in Maryland.