Nevada Judge: Major Immigration Law is Too Racist to Remain in Force

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tags: racism, immigration

Is one of the most commonly charged federal crimes unconstitutional? According to a federal judge in Nevada, yes. A provision in federal law known as Section 1326 makes it a crime to illegally reenter the United States after being deported. It’s simultaneously one of the lowest-profile federal crimes and one of the most common. The National Association of Federal Defenders told the Supreme Court last year that federal prosecutors charged 23,846 cases under Section 1326 over a 12-month span ending in 2020. That amounts to more than one-third of all federal criminal cases.

Judge Mirandu Du, a federal district court judge in Nevada, ruled last week that Section 1326 violates the Fifth Amendment because of its racist origins and disproportionate impact on Hispanic defendants. “The court is unpersuaded that a criminal law enacted by Congress is free from constitutional equal protection constraints, even if the offense relates to immigration,” Du wrote. “The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection.”

The case, United States v. Carrillo-Lopez, is one of the thousands brought every year under Section 1326. The federal government had previously deported Gustavo Carrillo-Lopez twice, most recently in 2012. Sometime between then and 2019, he allegedly reentered the U.S. without legal authorization and was arrested on drug and firearm charges. After federal prosecutors charged him with illegal reentry last summer, Carrillo-Lopez and his public defender sought to dismiss it on constitutional grounds.

They faced an uphill battle at first glance. Under Supreme Court precedent, immigration laws are typically reviewed under a lower legal standard known as “rational-basis review.” Generally speaking, so long as there is a rational basis for the law in question, it will survive judicial scrutiny on constitutional grounds. The test reflects Congress’s sweeping authority to write immigration laws under Article I of the Constitution, as well as the Supreme Court’s general aversion to second-guessing how the federal government writes and enforces those laws.

Carrillo-Lopez overcame that hurdle, however, with the argument that Section 1326 is not an immigration law at all, but rather a general criminal law that happens to apply to undocumented immigrants. Du, ruling in favor of the motion to dismiss, agreed. “That Carrillo-Lopez challenges a criminal law—which goes to the ‘nature’ of the Fifth Amendment’s protective concern—applicable to those within the United States,” Du wrote, “rather than an immigration policy addressing national security concerns of those not within the United States, is further evidence that his equal protection challenge should be reviewed under a more heightened standard than the rational-basis standard that the government proposed.”

Carrillo-Lopez challenged Section 1326 by noting the racist environment in which Congress passed it in the 1920s. “Enacted at the height of the eugenics movement, the ‘Undesirable Aliens Act of 1929’ was conceived, drafted, and enacted by white supremacists out of a belief that the ‘Mexican race’ would destroy the racial purity of the United States,” Carrillo-Lopez argued, quoting from contemporary sources. “Legislators referred to Mexicans as ‘mongrels’ and ‘peons.’ They claimed Mexicans were ‘poisoning the American citizen.’ They sought to keep the country’s blood ‘white and purely Caucasian.’ They solicited reports and testimony from a eugenicist who likened immigration policy to the ‘breed[ing] of thoroughbred horses.’”

Read entire article at The New Republic

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