A judge ruled a law prosecuting re-entry after deportation is racist. Immigration experts call the decision groundbreaking

·6 min read
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guard escorts an immigrant detainee from his 'segregation cell' back into the general population at the Adelanto Detention Facility on November 15, 2013 in Adelanto, California. Getty Images/John Moore
  • A judge struck down a law making it a felony for immigrants to re-enter the US after deportation.

  • The defense argued that the statue has racist origins and disproportionately affects Latinos.

  • Though groundbreaking, the judge's decision is non-binding and could be appealed by higher courts.

  • Visit Insider's homepage for more stories.

A federal district court judge in Nevada struck down a decades-old law making it a felony to re-enter the United States after deportation on the grounds that it has "racist, nativist roots."

Immigration advocates have called the decision groundbreaking.

Judge Miranda Du ruled last Wednesday that section 1326 - which criminalizes re-entry to the US if a person has previously been denied admission or were deported - violates the equal protection clause of the Fifth Amendment.

The ruling dismisses the case against Gustavo Carrillo-Lopez, who was indicted last summer for violating section 1326. Carrillo-Lopez had twice been deported from the US in 1999 and 2012.

He then allegedly re-entered the country without legal authorization following his 2012 deportation.

Though tens of thousands of cases are tried annually under the provision, Judge Du's decision marks a milestone.

Her court is only one of two that has allowed a defendant accused of violating this statute an evidentiary hearing, per court documents.

Galen Carrico, immigration attorney

"Though the racism and nativism embedded in the law's historical record is blatant, it has taken nearly 100 years for a court to probe its outrageous history and assail the law's constitutionality," Lauren Gorman, who represented Carrillo-Lopez, wrote in an emailed statement to Insider.

But whether Du's ruling will have broader implications on the constitutionality of the criminal re-entry law is yet to be determined.

The Justice Department is likely to appeal the judge's ruling to the US Court of Appeals for the Ninth Circuit, which issues binding decisions of federal law in western states.

If the Ninth Circuit rules against the government, the DOJ may decide to petition the Supreme Court.

In making their case, the defense turned to historical record

The defense challenged section 1326's constitutionality by presenting a case based on historical record and showcasing how racism is intertwined with the law's origin story.

Congress made re-entering the US post-deportation illegal in 1929 with the introduction of the Undesirable Aliens Act and reaffirmed the law in 1952 when it enacted section 1326.

Though nativism loomed over 1920s US politics, the act "marked a distinct shift from earlier anti-immigrant campaigns that targeted European, Chinese, and other Asian migrants," Benjamin Gonzalez-O'Brien, an associate professor of political science at San Diego State University told Insider.

As one of the scholars called as an expert to provide testimony for Carrillo-Lopez, Gonzalez-O'Brien noted that "for the first time, the law targeted Mexican immigrants."

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As Du's decision notes, Carrillo-Lopez establishes that racism and eugenics were prevalent, motivating factors during Congressional conversations about the 1929 law and previous failed immigration legislation.

One of the lawmakers debating the Undesirable Aliens Act went so far as to argue for its necessity by arguing that Mexicans were "poisoning the American citizen" and were of an "undesirable class," per expert testimony cited in Carrillo-Lopez.

The defense also pointed towards lawmakers' record of using racial slurs referring to Mexicans who enter the US illegally as evidence that racism factored into the creation of the laws.

Violating the Undesirable Aliens Act and the re-entry statute can result in a fine, up to two years in federal prison, and added penalties for other drug and violence felonies and misdemeanors.

"These laws were not just passed to provide a deterrent to undocumented entry," Gonzalez-O'Brien said. "The racial animus is on clear display."

Federal prosecutors, however, contend that lawmakers at the time of enacting the statue were motivated by a multiplicity of reasons, including economic concerns.

They argued that while the congressmen may have made "unbecoming" remarks, the defense was painting a "flat caricature," rather than a "complicated, multi-dimensional picture," per court documents.

The decision shows section 1326 disproportionately affects Latinos

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Demonstrators protest outside the Immigration and Customs Enforcement (ICE) headquarters to demand the release of immigrants families in detention centers at risk during the coronavirus pandemic, in Washington, DC, on July 17, 2020. OLIVIER DOULIERY/AFP via Getty Images

Former US Department of Housing and Urban Development Secretary Julián Castro, the grandson of a Mexican immigrant, brought the issue of criminalizing re-entry to a public stage during his 2020 presidential campaign, writing that "migration shouldn't be a criminal justice issue."

Though decriminalizing re-entry is an issue immigration advocates have long been fighting for, they say their work became all the more immediate during the Trump administration, when the Justice Department announced it had prosecuted a record number of immigration-related cases in 2019.

Approximately 30% of all federal criminal cases involved people charged under the re-entry statute that year, per SCOTUSblog.

Citing Gonzalez-O'Brien's research among expert testimony, Du wrote in her decision that the defense "established that Section 1326 was enacted with a discriminatory purpose" and "the law has a disparate impact on Latinx persons."

According to US Border Patrol data, 87% of people apprehended at the border in 2010 were of Mexican descent, down 10% from 97% in 2000.

While the federal government acknowledged the statue disproportionately affects Latino individuals, it argued that these numbers result from Mexico's close proximity to the US - an argument Du wrote she was "not persuaded" by.

"Like Section 1325, this law (Section 1326) has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court," Castro tweeted last Wednesday following Du's decision.

The DOJ did not respond to Insider's request for comment.

Galen Carrico, an immigration and criminal justice attorney, says Du's decision is a "pretty narrow decision," but that it is nonetheless emblematic of progress in immigration law.

Even if the decision is non-binding, it's a persuasive ruling that could have a tangible impact on his clients, most of whom are Latino, he said.

"There are many people living life in the shadows," Carrico said. "While this decision won't change things overnight, it's evidence that progress is happening."

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