A judge in Nevada ruled on August 18 that the current law addressing illegal re-entry violates the Constitution’s Fifth Amendment guaranteeing equal protection under the law. This decision could shake the foundations of immigration enforcement in the United States.
In her decision, U.S. District Judge Miranda Du, an Obama appointee, wrote that Congress created 8 U.S. Code § 1326 with racist intent. That law, first passed in 1929, makes it a felony to re-enter the United States illegally after a previous removal. In fiscal year 2019, the Justice Department pursued Title 1326 charges against 25,426 defendants.
In June of 2020, immigration enforcement authorities arrested the defendant, Gustavo Carrillo-Lopez, and charged him with illegal re-entry under §1326. Carrillo-Lopez and his lawyers argued that “Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in a 1977 case, Village of Arlington Heights v. Metropolitan Housing Development Corp.”
Judge Du ruled in favor of the arguments advanced by Carrillo-Lopez. She wrote in her summary of the case that “[Carrillo-Lopez] 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.” She further remarked, “The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection.”
The government argued with some force that the passage of Title 1326 was made without racial intent, and that Congress revised the law multiple times after 1929 without any racial context present. Judge Du dismissed this line of thinking, ruling that “the 1952 reenactment did not cleanse Section 1326 of its racist origins and was also motivated by discriminatory intent” and that “1952 enactment of Section 1326 was also motivated by discriminatory intent.”
If the Biden administration decides to appeal this ruling, the case would head to the Ninth Circuit Court of Appeals based in California. But the Biden administration – committed to dismantling immigration enforcement – may choose instead to accept Judge Du’s ruling as a convenient way to further changes to immigration non-enforcement that they support. In that case, it would fall to the attorneys general of Republican-led states to lead any legal challenge against Judge Du’s ruling.
If this ruling survives future legal challenges, it will fundamentally change an aspect of our immigration enforcements and benefits allocation. Title 1326 prevents frequent illegal border-crossers from applying for citizenship or other benefits conferred upon legal permanent residents. This ruling only encourages would-be illegal entrants from trying to cross the border illegally again and again, confident that the legal ramifications in the United States would be no different after their 25th attempt than they would be after their first. Simply put, striking down Title 1326 adds a new incentive for illegal immigration at a time when our country can least afford it.
The case is U.S. v. Carrillo-Lopez, 3:20-cr-00026, U.S. District Court, Nevada (Reno).