Federal Judge rules illegal re-entry as unconstitutional

What is the law?

On Wednesday, August 18th, 2021, Federal Judge Miranda Du of Nevada ruled that the law which makes it a felony crime to return to the United States after deportation is unconstitutional on the basis that it is discriminatory and racist in its origins.

The law which she is referring to is Section 1326 of the Immigration and Nationality Act of 1952. In this section, if a person re-enters the United States after they have been denied admission, deported, or removed then they are committing an illegal felony and are therefore subject to criminal prosecution. Those who are convicted of this felony are subject to a punishment of up to 20 years in prison.

Why was Section 1326 ruled unconstitutional?

Judge Du’s federal ruling comes after she dismissed a case against a man named Gustavo Carrillo-Lopez who was indicted for illegal re-entry in June 2020. Carrillo-Lopez was found to living in the U.S. after he was deported in March 1999 and again in February 2012.

The lawyers for Carrillo-Lopez argued that the law which barred him from entry into the United States was discriminatory against Mexican and LatinX communities and racist in its origins. As a result, it is in violation of the equal protection clause of the Fifth Amendment.

Furthermore, Judge Du writes that ‘The amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach’.

What is the history of Section 1326?

Unlawful re-entry into the United States was first criminalized under the Undesirable Aliens Act which was passed in Congress in 1929. The Undesirable Aliens Act was heavily rooted in racism and eugenics with arguments that the United States benefitted by keeping out certain ethnicities and classes of people.

The Immigration and Nationality Act of 1952 borrowed and incorporated a lot of language from the Undesirable Aliens Act into the new immigration policy. Over the years, the punishment for illegal re-entry has gotten more punitive over the years with the intention that it would deter immigration from Hispanic and LatinX communities whom this law disproportionately affects.

It should be noted that the United States has a history of immigration policies rooted in racism. For example, both the Page Act of 1875 and the Chinese Exclusion Act of 1882 effectively banned Chinese immigration. The National Origins Act of 1924 discouraged immigration from southern and eastern Europeans by using a racial quota system that vastly restricted the number of immigrants allowed into the U.S. and excluded all immigration from Asia.

What does this mean for future U.S. immigration policy?

Whether or not this decision by Judge Du will be overturned by appeal from the U.S. government remains yet to be seen. However, this decision could be the start of many decisions that overturn restrictive immigration policies, particularly those founded with racist intentions.

Since taking office, President Biden has focused on a more progressive immigration reform which includes reversing a lot of the Trump administration’s harsh and restrictive immigration policies. In addition, progressive Democrats in Congress hope to strengthen the immigration reform effort by proposing and passing laws that are more welcoming to immigrants of all backgrounds, nationalities, and religions.