Federal Judge Rules Deportation Law is ‘Racist, Nativist’ and Unconstitutional

By Published on August 23, 2021

A federal judge in Nevada ruled Wednesday that a law making it a felony to return to the U.S. after deportation is unconstitutional.

U.S. District Judge Miranda Du in Reno wrote that Section 1326 of the Immigration and Nationality Act has “racist, nativist roots” and discriminates against Hispanic people in her opinion. Du found that this law “violates the equal protection guarantee of the Fifth Amendment.”

Congress enacted Section 1326 in 1952, employing some language from the Undesirable Aliens Act. “Anybody who works in federal courts knows the statute,” Franny Forsman, retired longtime chief of the Federal Public Defender’s Office in Nevada, told the Associated Press.

Congress increased penalties for violations of this law five times to increase deterrent power between 1988 and 1996, the judge reminded. “There really are a large number of cases that have been brought over the years under that section. They’re mostly public defender cases,” Forsman said.

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Acting U.S. Attorney Christopher Chiou filed a notice of government appeal to the 9th U.S. Circuit Court of Appeals on Thursday, despite former Democratic presidential candidate Julian Castro’s tweet stating that he could not imagine the Justice Department defending the law with its “incredibly racist history.”

Du dismissed the June 2020 indictment of Gustavo Carrillo-Lopez, who prosecutors say authorities arrested after two separate deportations. The judge said she took into account written and oral arguments and expert testimony about the legislative history of the law from professors Benjamin Gonzalez O’Brien of San Diego State University and Kelly Lytle Hernández of the University of California, Los Angeles.

Du acknowledges that “no publicly available data exists as to the national origin of those prosecuted under Section 1327,” but she cites U.S. Border Patrol statistics showing that Mexicans constitute more than 86% of apprehensions at the border.

“Importantly, the government does not dispute that Section 1326 bears more heavily on Mexican and Latinx individuals,” Du wrote.

Du notes the government’s argument that this potentially disparate impact is “‘a product of geography, not discrimination,’ and the statistics are rather ‘a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns, and the socio-political and economic factors that drive migration.’” Of all this, “The court is not persuaded,” Du wrote.


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