·  Legal News, Analysis, & Commentary

Verdicts & Settlements

Federal Judge Strikes Down “Racist” Immigration Re-Entry Law

— August 19, 2021

In her ruling, U.S. District Judge Miranda Du observed the racially charged beginnings of United States Code Section 1326, the first federal statute criminalizing illegal re-entry after deportation or removal.

A Nevada-based federal judge has struck down a longstanding statute making it illegal for people who have been deported from the United States to re-enter the country.

In her ruling, U.S. District Judge Miranda Du suggested that the law was not only unconstitutional, but discriminatory and potentially racist, too.

“The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” Du wrote in a Wednesday decision.

According to Du, the statute—which makes illegal re-entry to the United States a felony—was primarily used to unjustly prosecute Latino migrants.

Du’s order, says The Las Vegas Review-Journal, dismissed a case against Gustavo Carrillo-Lopez, who had been indicted for illegal re-entry when President Donald Trump was still in power.

Carrillo-Lopez, adds the Review-Journal, was first deported from the United States in 1999.

However, Carrillo-Lopez resurfaced again in February 2012. He was removed, then discovered a third time in the summer of 2019.

Under U.S. Code Section 1326, anyone who has been denied admission to the United States, deported, or otherwise removed may not enter the country.

Nonetheless, Du observed that Section 1326 is largely derived from Undesirable Aliens Act of 1929, passed in the “first and only era in which Congress openly relied on the now discredited theory of eugenics to enact immigration legislation.”

Image via the U.S. Customs and Border Protection agency/Flickr. (CCA-BY-0.0).

In fact, the Undesirable Aliens Act was sponsored by the late South Carolina Sen. Coleman Blease, “an unrepentant White supremacist” who sought to curtal Mexican immigration into the United States. Blease’s law attracted widespread support from some of Congress’s most extreme members—including Rep. John Box, a Texas Democrat who described Mexicans as “illiterate and ignorant peons.”

Upon its passage, the act became the first federal law providing criminal penalties for immigration offenses.

Some twenty years after the Undesirable Aliens Act went into effect, the United States Congress copied its legislative language, almost word-for-word, for use in Section 1326.

Du’s ruling reflects on Section 1326’s origins as an overtly anti-Latino law, finding that Congress, in its decision to adopt the Act of 1929 into the U.S. Code, failed to “cleanse” the law’s racist origins.

“Because Carrillo-Lopez has 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 Court will grant the Motion,” Du said.

“The racist history of Section 1326 is, at bottom, the history of millions of individual Latinx lives ruined, and degraded, by application of this unjust law,” Du wrote. “Thus, Mr. Carrillo-Lopez’s name and story must be made part of the record.”

Assistant Federal Public Defender Lauren Gorman, who represented Carillo-Lopez and had requested that the case against him be dismissed, was pleased that Judge Du not only tossed the case against her client but found the code used to prosecute him unconstitutional, too.

“It is the first ruling of its kind,” Gorman said. “Equal protection challenges have been made to this statute before, but this was the first ruling finding it unconstitutional.”



Nevada District Court judge tosses out federal immigration law on illegal re-entry

Nevada judge says immigration law making reentry a felony is unconstitutional, has racist origins

Nevada judge strikes down immigration law aimed at illegal re-entry


Join the conversation!