On August 18, 2021, a federal judge in Nevada ruled that a criminal law dating back to 1929—which makes it a felony to re-enter the United States after being deported from the country—was unconstitutional.
According to the ruling, Section 1326 of the Immigration and Nationality Act violated the equal protection clause of the Fifth Amendment due to its racist origins and how it discriminated against Mexican and Latinx people.
Violating Section 1326 is considered one of the most common federal crimes, especially since the law was an important part of the Trump administration’s “zero tolerance” immigration policies. Over a 12-month period ending in 2020, federal prosecutors charged nearly 24,000 cases under Section 1326, which is over one-third of all federal criminal cases, said The National Association of Federal Defenders to the Supreme Court last year.
In the ruling, U.S. District Judge Miranda Du in Reno dismissed the June 2020 criminal indictment of Gustavo Carrillo-Lopez, who was charged under Section 1326 by the U.S. Justice Department under President Trump. In Carrillo-Lopez v. the United States, Carrillo-Lopez was arrested in Nevada in 2019 after he had been deported in 1999 and again in 2012. After he was charged with illegal reentry, the defendant argued that his charges should be dismissed on constitutional grounds.
Additionally, Carrillo-Lopez disputed how Section 1326 is not considered immigration law, but rather a general criminal law, which specifically targets undocumented immigrants. He also noted how the Undesirable Aliens Act of 1929 was enacted under nativist and racist pretenses, especially since lawmakers referred to Mexicans in discriminatory terms and racial epithets, and claimed Mexicans were “poisoning” Americans.
Although federal prosecutors conceded that Section 1326 contained discriminatory intent, they contended such intent was not present when Congress recodified and passed the law in 1952. However, Judge Du disagreed since the 1952 passage of the Act of 1929 was nearly word for word.
The government also argued that Section 1326 was primarily motivated by economic and national security concerns. Yet, Du said Congress failed to address and erase the law’s racist origins, and even went so far as to increase the criminal penalties for Section 1326 during the 1980s and 90s.
Another point federal prosecutors made is that Mexican and Hispanic individuals were more likely to be charged under the law because of their location. But Du said such reasoning does prevent a certain group from raising equal protection challenges.
The federal courts have weighed in on the constitutionality of Section 1326 in previous cases. But Du wrote that previous courts have only addressed the intent of the law, instead of how the law itself is discriminatory in nature.
Soon after the ruling, the Justice Department announced it would appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.
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