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.