Court First Finds “Racist” Statute Criminalizing Unauthorized Reentry Unconstitutional

On August 16, Judge Du of the United States District Court for the District of Nevada issued a first-of-its-kind ruling. Judge Du found that Section 1326 of the Immigration and Nationality Act (INA) is unconstitutional. In a three-part opinion, Judge Du outlined exactly how and why defendant Gustavo Carrillo-Lopez, indicted under Section 1326 for unlawful reentry into the United States, fully established that Section 1326 violates the equal protection guarantee of the Fifth Amendment to the Constitution. Judge Du granted Carrillo-Lopez’s motion to dismiss the case against him and dismissed the indictment.

This is the first time a federal court judge has issued a ruling finding the INA provision unconstitutional, a ruling that is almost exclusively centered on the racist legislative background of Section 1326. The case is unique because it applies the standard first articulated in the case Village of Arlington Heights v. Metropolitan Housing Development Corp. – the standard requires the party who claims their Fifth Amendment rights were violated by a statute to show two things: the statute has a disparate impact on a particular race, and the statute has discriminatory intent.

Section 1326 (8 U.S.C. 1326(a), (b)) makes it a criminal violation for a noncitizen to enter or reenter the U.S. after deportation or failure to obtain lawful status. First passed in 1929 and later recodified in 1952, expert academics prepared extensive histories on the statute demonstrating that Section 1326 was part of a steady legislative effort that started in the 1920s with the goal of keeping out “undesirable” immigrants for any purpose other than providing cheap labor. While the statute has been amended four times since becoming part of the INA in 1952, Judge Du was not convinced that any of those amendments changed the inherently-central racism of the statute itself.

A statute has a “disparate impact” when it affects one group significantly more than any other group. Carrillo-Lopez argued that Section 1326 impacts Latinx individuals more, and the numbers back this up. Citing the U.S. Border Patrol statistics, Judge Du noted that “over 97% of persons apprehended at the border in 2000 were of Mexican descent, 86% in 2005, and 87% in 2010.” While the government argued that this had more to do with geography than statutory discrimination, Judge Du pointed out that the Ninth Circuit (in which the United States District Court for the District of Nevada sits, and where the government’s appeal of this ruling will be heard) has previously found otherwise; not to mention that this logic is “circular and inconclusive.”

“Discriminatory intent” is when a “racially discriminatory intent or purpose” was a “motivating factor in the decision” to pass the statute in question. The history of Section 1326 is a matter of public record – looking to each factor articulated in Arlington Heights, Judge Du concluded that it is essentially fact that the statute was passed in order to hand down criminal convictions to Latinx individuals. The government offered three alternative goals for Section 1326’s passage, but Judge Du struck them each down, several times citing Supreme Court and Ninth Circuit precedent to support her reasoning.

Because Judge Du’s ruling is a novel one, public opinion is split as to how it will fare on appeal. Several news sources reporting on the case are optimistic that it will stand, particularly given the change in administration and the tendencies of the Ninth Circuit in immigration matters. Other sources are sure the ruling will be struck down, not only because of its novelty but also because of very recent precedent from neighboring circuits holding exactly the opposite. However, these pessimistic sources list Supreme Court cases like Espinoza v. Mont. Dept’ of Revenue, Ramos v. Louisiana, and Trump v. Hawaii as grounds for overturning Judge Du’s ruling, curiously disregarding the fact that Judge Du addressed each of these cases in her opinion, even using them to support her reasoning.

It is not often a federal appeals court upholds such a controversial ruling from a lower court, particularly one implicating equal protection, but the Ninth Circuit deals with more immigration cases than most of its sister circuits. And, importantly, it’s hard to ignore public records, supporting statistics, and the fact that the statute in question is nearly 100 years old. Optimism may persist even in the face of a reversal, as Carrillo-Lopez and his team still have the U.S. Supreme Court as an option for a final arbiter.

If you have questions about the INS or any immigration-related questions, contact us. We work with you to ensure you get the right advice.

Sources:

United States v. Carrillo-Lopez, 2021 U.S. Dist LEXIS 155741.

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).

Espinoza v. Mont. Dept’ of Revenue, 140 S. Ct. 2246 (2020).

Ramos v. Louisiana, 140 S. Ct. 1390 (2020).

Trump v. Hawaii, 138 S. Ct. 2392 (2018).

https://www.law360.com/immigration/articles/1414321/-racist-illegal-reentry-law-likely-to-stand-on-appeal

https://newrepublic.com/article/163419/miranda-du-unconstitutional-immigration-law

https://www.reuters.com/legal/litigation/courts-are-beginning-admit-that-some-immigration-laws-are-racist-2021-08-23/

https://www.thenation.com/article/society/immigration-crime-law/

https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins