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Federal judge says deportation rule unconstitutional and discriminatory
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Federal judge says deportation rule unconstitutional and discriminatory

  • The Biden administration has modified some of the Trump administration's hardline immigration stances.
    Paul Ingram/TucsonSentinel.com The Biden administration has modified some of the Trump administration's hardline immigration stances.

A federal judge in Nevada ruled Wednesday that a longstanding section of immigration law that makes it a felony for an individual who has been deported to re-enter the United States was unconstitutional.

The law was an integral component of the Trump administration’s “zero tolerance” immigration policies.

Gustavo Carrillo-Lopez, the defendant in the criminal case who was first charged under Section 1326 by the Department of Justice under President Donald Trump, filed a motion asking to dismiss the indictment against him. Carrillo-Lopez argued that Section 1326 was an unconstitutional violation of the Fifth Amendment 's equal protection guarantee.

Chief U.S. District Judge Miranda Du agreed and dismissed the indictment. Du, a Barack Obama appointee, wrote in the ruling that the defendant “established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus.”

The basis for Du’s decision came from the expert testimony of professors Benjamin Gonzalez O’Brien of San Diego State University and Kelly Lytle Hernandez of the University of California, Los Angeles. Du wrote that the professors provided sufficient evidence to conclude that the passage of Section 1326 in 1952 was spurred by racist motivations.

The Undesirable Aliens Act of 1929 first criminalized border crossings in an attempt to curb immigration from Mexico. During oral arguments, the government conceded that the law had discriminatory intent, but contended that this intent was not present when Congress passed Section 1326 in 1952.

Du disagreed, writing that “the 1952 Congress adopts language from the Act of 1929 almost word for word.” She further pointed to expert testimony as evidence of the racism that contributed to the passage of Section 1326.

Some of the 1952 bill’s supporters used racial epithets for Mexican and Latino people, including the deputy attorney general in a letter to the Senate urging for the bill’s passage. Du also noted President Harry S. Truman’s veto of the measure in 1952, in which he argued the law would “intensify the repressive and inhumane aspects of our immigration procedures.”

Citing the government’s argument that Section 1326’s purpose was to protect economic competition and ensure national security and strong foreign relations, Du concluded that the amendments to the bill over the years did not erase its racially discriminatory origins. Rather, Congress repeatedly increased the criminal penalties for Section 1326 throughout the 1980s and 1990s. Du ruled that Congress had neglected to address the discriminatory impact of the law.

“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.

This not the first time federal courts have considered the issue of Section 1326's constitutionality, but previous courts have not found it unconstitutional. According to Du's ruling, previous courts have only considered the intent of the 1952 legislation and not adequately weighed the totality of Section 1326's discriminatory history and impact.

“The Court will not ignore that Congress in 1952 adopted the language of Section 1326 without substantially changing the law and without debate or discussion of the invidious racism that motivated the Act of 1929, only to make it more punitive,” wrote Du.

Despite the ruling standing at odds with those of other federal district courts, it is unclear whether Du’s decision will be appealed by the Justice Department. The Biden administration has modified some of the Trump administration's hardline immigration stances.  

Former presidential candidate and Secretary of Housing and Urban Development Julian Castro tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”

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