Illegal Re-Entry Law Held Unconstitutional

The decision rocked the criminal and immigration law world, as this was a law so widely used, and broadly accepted, that it was essentially inconceivable that a court would reject it. Yet Nevada Chief District Court Judge Miranda Du, appointed by President Obama in 2012, did. And the roar was deafening.

The substance of the law, 8 USC § 1326, creates a crime when someone who has been “denied admission, excluded, deported, or removed” re-entered without prior permission. It kind of seems like an obvious law. After all, if someone has been deported and unlawfully re-enters, it’s unlikely to be an unfortunate mistake, and merely deporting them again isn’t going to change the incentives to not unlawfully re-enter again.

But applying the Arlington Heights test to the law, the court found that it violated the Equal Protection Clause based on its disparate impact and racial animus in its predecessor 1926 law was not cleansed by its enactment in 1952. Accordingly, Judge Du held that the illegal re-entry law was unconstitutional.

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—and as further discussed below—the Court will grant the Motion.

Under Arlington Heights, the Constitution prohibits a “facially neutral law with a discriminatory purpose in a way that disparately impacts a specific group.” Judge Du found that there was disparate impact.

Carrillo-Lopez argues, convincingly, that Section 1326 disparately impacts Mexican and Latinx* defendants. While no publicly available data exists as to the national origin of those prosecuted under Section 1326, over 97% of persons apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010.

While the government argued that there was a reason for this, that being the border with Mexico, the Court rejected that contention as based on the government choosing to focus its enforcement on the southern, rather than northern, border,

Moreover, the government’s argument is circular and inconclusive. It cannot be the case that the mere over-policing of certain locations—here the Southern border as opposed to the Northern border—prevents a specific group from raising equal protection challenges. Or that because Mexican citizens will likely make up more unlawful reentries because they are a higher percentage of the overall illegal alien population, they cannot raise equal protection challenges. Ultimately, the law still bears more heavily on those individuals than others.

The statute was initially enacted in 1926, and even the government conceded that it was laden with racial animus at the time. The law was then re-enacted in 1952 as part of the Immigration and Naturalization Act, which the government argued distinguished the latter law from the racism of its original enactment. The court rejected the argument.

The Court does not rely solely on the evidence from 1929, but also considers contemporaneous evidence from 1952. In evaluating that evidence, the Court looks at the interplay between legislative history and relevant historical evidence. Specifically, the Court considers: a relative lack of discussion compared to robust Congressional debate regarding other provisions of the INA; explicit, recorded use of the derogatory term “wetback” by supporters of Section 1326; Congressional silence while increasingly making the provision more punitive; Congress’ failure to revise in the face of President Truman’s veto statement calling for a reimagination of immigration policy; knowledge of the disparate impact of Section 1326 on Mexican and Latinx people; and passage of the so-called “Wetback Bill” by the same Congress only months prior. The Court recognizes that this evidence is circumstantial, and that each instance may not be as probative when considered alone. But in its totality, the cited evidence is sufficient to demonstrate that racial animus was at least one motivating factor behind the enactment of Section 1326.

In re-enacting this piece of the INA, there was little discussion. The court found that to serve as acquiescence of the original racist motive, and that the re-enactment without any express racist purpose failed to “cleanse” the law of its original racism.

If it did not ignore the Act of 1929’s history, there was opportunity to either adopt its racial animus or refute its improper motivation and clarify a purpose for the statute that did not violate the Equal Protection Clause. Here, the 1952 Congress remained silent, even when other provisions of the law were being debated. When considered in comparison with the express debate over other racially problematic predecessor statutes, Congress’ silence here weighs in favor of establishing Carrillo-Lopez meets his burden.

By not expressly rejecting the racist origins of the law, and expressly debating or asserting non-racist justification for its re-enactment, Judge Du found that the taint of racism remained. This was bolstered by President Truman’s veto of the INA and Congress’ override.

Carrillo-Lopez argues that Congress’ decision to pass the INA over a presidential veto that “explicitly called out the law for its racism” is evidence of racial animus. While President Truman did not explicitly address racism as to Mexican or Latinx individuals, he commented on the negative implications of expanding the grounds for deportation, and implored Congress to reconsider the INA’s passage: “Should we not undertake a reassessment of our immigration policies and practices in the light of the conditions that face us in the second half of the twentieth century? . . . I hope the Congress will agree to a careful reexamination of this entire matter.”

While Truman’s veto was directed at the immigration law as a whole, and not this particular provision, his veto message asserting that it reflected racism did nothing to distinguish the re-enacted statute from its racist predecessor.

It seems almost inconceivable that the Ninth Circuit won’t reverse this decision, as illegal re-entry cases make up about a third of the federal courts’ criminal docket and the law, otherwise, has been a bedrock law in criminal immigration cases. But Judge Du’s decisions makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine.

It’s not to say that § 1326 isn’t an otherwise valid exercise of the police power, and perhaps a necessary law to prevent illegal re-entry, but that it’s up to Congress to enact laws for reasons untainted by racism. And it doesn’t help when the words of a president strongly suggest that its enforcement is still very much an exercise in racism.

*The Court chose to use the word “Latinx” in the opinion.

18 thoughts on “Illegal Re-Entry Law Held Unconstitutional

  1. Paleo

    It’s racist because we over police the southern border relative to the northern border, despite the absolutely undeniable fact that attempted illegal entries on the southern border dwarf that of the north?

    Is it racist to have riot cops at an Antifa protest but. to have none at, say, an NAACP meeting, where none are needed?

    This is a bogus decision. IMO. And I’m not anti immigrant – I’ve lived in Texas for going on 50 years and have been around thousands of “illegals” and generally find them to be hard working decent people worthy of empathy.

    The use of “Latinx”, which isn’t really a word, suggests that perhaps the judge came into the case with her mind made up and arguably diminishes the integrity of the decision. Does a decision by a racially biased judge carry more moral weight than the decision of a racially biased Congress because her bias is the good kind?

    1. SHG Post author

      Do you think the enforcement priorities argument would have gone down a whole lot easier if Trump had kept his yap shut?

      1. Pedantic Grammar Police

        Trump? Keep his yap shut? There’s an old saying about that… something about pigs and wings.

        For better or worse, Trump was a “real” president. He acted out his role in real time, with his thoughts spilling out of his mouth as they came into his mind. Is that better or worse than the scripted lines agonized over by speechwriters and then read from a teleprompter by drones like Obama and Biden? Opinions will vary.

        If you think that the president’s job is to run the government, then you will prefer the traditional speechwriter excrement read from the teleprompter. If you think that his job is to entertain and distract us as the country is run behind the scenes by the real rulers , then Trump was a fantastic president, the best ever. Biden is a decent entertainer, for example his Air Force One pratfall last month was epic, but he’s not in the same league with Trump, and he does a terrible job of distracting us from the fact that he is not running anything.

        Illegal immigration was one of the few issues where Trump actually enacted effective policies, but he enacted them so clumsily and so belligerently that the next administration was compelled to reverse them. Was Trump really so dumb that he didn’t see the inevitable effects of his actions and words, or was this all part of a plan to open our borders by making sensible immigration policies impossible? Opinions will vary.

        1. SHG Post author

          Was Trump really so dumb that …

          I’ve made my view on this abundantly clear. Preferring an “authentic” rather than packaged president is fine. That doesn’t mean pick the most vulgar, narcissistic, amoral ignoramus possible. Let’s try modestly thoughtful, occasionally well-intended and authentic next time.

          1. Pedantic Grammar Police

            I experienced a time when such a thing as a “modestly thoughtful, occasionally well-intended and authentic” politician existed, and I enjoyed thinking about how she would have handled the immigration crisis, the Afghan war, etc. But then I woke up. In real life, the choices tend to be soulless drone or narcissistic psychopath. People like Tulsi are weeded out before they can cause any trouble.

          2. David Matthews

            “ Let’s try modestly thoughtful, occasionally well-intended and authentic next time.”

            I don’t think Judge Kopf intends to run next time.

  2. Paleo

    Everything would have gone down easier if Trump had kept his yap shut. So I’ll say yes.

    But it’s still unreasonable to call the law racist unless it directs us to grab the Central Americans at the border and let everyone else through. Or I guess if it instructs us to not enforce rules at the northern border. Neither of those is the case.

    If the idea is that a law is invalid because it or one of its predecessors was passed by a substantially racist Congress, then we’re living with a whole bunch of invalid old laws.

    1. SHG Post author

      Was this a reply to something? It certainly seems as if it’s a reply to something.

      As for a “whole bunch of invalid old laws,” I’m pretty sure progressives would welcome you to their party.

      1. Paleo

        I thought I hit reply. Sorry. It’s early down here.

        As to your suggestion regarding the progressives, sorry, but I’d rather eat my own foot.

  3. Dan

    > Carrillo-Lopez argues that Congress’ decision to pass the INA over a presidential veto that “explicitly called out the law for its racism” is evidence of racial animus.

    I thought this was interesting, as (to my knowledge) race wasn’t nearly as big of an issue in 1952 as it is today, so I looked up and read the lengthy veto message. That message pointed out many features of the law, both good and bad–one of the good being that the law prohibits racial quotas. But I was not especially surprised to find that Carrillo-Lopez simply mischaracterizes the veto message.

    It’s simply false to say that the veto message “called out the law for its racism”, whether explicitly or implicitly. It just doesn’t do that. What it *does* do is condemn the law for its quotas based on *national origin*. This is explicitly not the same as race, one of his biggest complaints was that citizens of eastern European countries (not only the Greeks and the Turks, but also the Poles) had much lower quotas than citizens of western European countries, all of whom would be of the same “race”.

    And based on this dishonest characterization, she naturally finds racism, because under the prevailing mindset everything is racist.

    1. SHG Post author

      I didn’t look at the veto message. But what we now call racism was then more commonly viewed as discrimination based on ancestry and national origin rather than race, but this is more a distinction without a practical difference.

  4. Bryan Burroughs

    This rationale would invalidate damned near every immigration law on the books. Is the judge expecting enforcement against white people in Omaha? We’re supposed to equally patrol the border where there aren’t 10k+ people a day streaming across? What immigration law isn’t dripping with racial animus? Anything short of “everybody come on in” is practcally saying “stay out you dirty varmints.” And which ones haven’t had ignorant people spouting racist trash in support of it?

    I don’t know if this particular law is a good idea or not, but this decision seems particularly myopic in its approach.

  5. Hunting Guy

    Henry Red Fox.

    “If my ancestors had enforced stricter immigration laws we wouldn’t be living on reservations today.”

  6. Alex Sarmiento

    > But Judge Du’s decisions makes some very serious points about how laws were enacted a century ago, when racism was fairly open and routine..

    “Sir, this person is using the First Amendment to say racist stuff. This Amendment was adopted in 1791 by slave owners when racism was fairly open and routine. This is having a disparate impact on Black people because they represent a minority of voices. The motive for this amendment are tainted with racism because racist people benefit from it and there is original sin . Equity Sir, equity! not equality”

  7. Lawperson5000

    If this sticks, junior federal prosecutors nationwide will rejoice, if secretly. No one wants to be assigned an illegal re-entry case. There is not a scintilla of anything interesting in these cases.

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