Judge: Charging Previously-Deported Border Crossers With Felonies Is Unconstitutional

Reno, NV – A federal judge in Nevada ruled that it was unconstitutional to charge an undocumented immigrant with a felony for returning to the United States after deportation.

U.S. District Judge Miranda Du ruled on Aug. 18 that the law known as Section 1326 was based on “racist, nativist roots,” the Associated Press reported.

Du said the law, which dated back to 1929, discriminated against Mexican and Latino people in violation of the Fifth Amendment’s equal protection clause.

Section 1326 of the Immigration and Nationality Act made it a crime for a person to enter the U.S. after they have been denied admission, deported, or removed, according to the Associated Press.

Congress enacted the law in 1952 and based the language in the statute on that of the Undesirable Aliens Act passed by Congress in 1929.

In order to increase the effective deterrence of the law, penalties for violating it were increased five times between 1988 and 1996, the Associated Press reported.

“Anybody who works in federal courts knows the statute,” Franny Forsman, the retired long-time chief of the Federal Public Defender’s Office in Nevada, explained. “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 she thought the government would appeal to the 9th U.S. Circuit Court of Appeals in San Francisco, the Associated Press reported.

She called the judge’s order groundbreaking for its thoroughness.

Du is a Vietnamese immigrant who was put on the federal bench by former President Barack Obama in 2012, the Associated Press reported.

“I think it will have implications because it’s going to be difficult to get around her reasoning,” Forsman explained. “It’s a little hard to get around a statute that was called the ‘Wetback Act’ by the people enacting it.”

“Wetback” is a derogatory term referring to Mexicans who have entered the country illegally by swimming across the Rio Grande, but it is disparaging to all Latinos, according to the Associated Press.

Du said in a 43-page order that dismissed the criminal indictment against Gustavo Carrillo-Lopez that “the government does not dispute that Section 1326 bears more heavily on Mexican and Latinx individuals.”

Carrillo-Lopez was arrested in 2019 after having been previously deported in 1999 and 2012, the Associated Press reported.

Du said she had seen no publicly-available statistics about the national origin of people prosecuted under Section 1326, but referred to U.S. Border Patrol data that showed over 97 percent of undocumented immigrants arrested at the border in 2000 were from Mexico.

She said Mexicans made up 86 percent of apprehensions in 2005 and 87 percent in 2010, the Associated Press reported.

“The government argues that the stated impact is ‘a product of geography, not discrimination,’ and that 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,” the judge wrote. “The court is not persuaded.”

It isn’t yet known whether the U.S. government will appeal Du’s ruling.

A Nevada court just ruled Sec. 1326 of the Immigration and Nationality Act—which makes unauthorized reentry at the border a felony—unconstitutional.

Like Sec. 1325, this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court. pic.twitter.com/lFOhybJ6A5

— Julián Castro (@JulianCastro) August 18, 2021

U.S. Department of Housing and Urban Development Secretary Julian Castro posted to social media that he doubted the U.S. Department of Justice would want to defend Section 1326, the Association Press reported.