A federal appeals court ruled that the federal deportation law, which caused families to be separated at the southern border, was “racially neutral,” overturning a landmark Nevada judge’s ruling that he had called racist and unconstitutional.
The Ninth Circuit Court of Appeals’ decision on Monday was expected in the law, known as section 1326, which makes it a crime to return to the United States after deportation, removal or denial of entry.
The government is a setback for activists who hoped to see major changes in the country’s immigration system after federal judge Miranda Du threw out an illegal re-entry charge against a Mexican immigrant nearly two years ago. Du said he dismissed the case because Section 1326 of the Immigration and Nationality Act discriminates against Latinos and therefore violates the legal rights of Gustavo Carrillo López.
“We are deeply disappointed in the Ninth Circuit’s decision to strike down Section 1326, a discriminatory law that continues to result in massive incarceration of Black and Brown people, wastes government resources, tears families apart,” said Sirine Shebaya, executive director. National Immigration Project, in an emailed statement.
A federal public defender for Carrillo also said he was disappointed in the president’s court, but declined to say whether he would appeal to the federal Supreme Court.
“We intend to request additional review of this matter of constitutional importance,” Amy Cleary said in a statement to The Associated Press.
Du ruling in August 2021 is the first of his kind since Congress made the crime nearly a century ago to return to the United States after deportation under the Undesirable Alien Act of 1929.
His 43-page history of the law took him to the 1920s, a time when “the Ku Klux Klan had been reborn, Jim Crow had come of age, and public intelligence preached the science of life.” eugenics, UCLA history said. professor and Saxo 1326 principal investigator Kelly Lytle Hernandez.
The Justice Department was quickly called. He acknowledged the 1929 law was based on racism, but in December argued before three judges of the 9th Circuit in California that subsequent amendments — including Section 1326 — were unconstitutional.
“That law, as enacted in 1952 and since amended, is constitutional under the principles of equal protection,” the attorney’s department told the jury. “And the district court is in this case, unless the district finds something else.”
The Justice Department declined Monday to comment on the appeals court ruling.
During the appeal, the federal government continued to apply Section 1326 to cases across the country because it failed to include Du’s illegal prohibition in its order.
Section 1326 and its counterpart, Section 1325, are among the most common crimes brought by the federal government. Section 1325 makes it a crime to enter the United States without authorization.
The number of cases has decreased since the onset of the COVID-19 pandemic, but the Department of Justice continues to prosecute tens of thousands of people annually for repeat offenses.
At the same time, immigration attorneys and immigrant advocates across the country continue to challenge their deportation laws, using the same legal framework as the Nevada case.
But more cases are coming, said Khaled Alrabe, one of the lead managers for the National Immigration Project.
This week, a panel of judges from the Virgin Islands Court of Appeals for the 3rd Circuit will hear a similar case challenging Section 1326 as racist and unconstitutional.
“We will continue to work with our partners, activists, advocates and, of course, federal lawyers to repeal and repeal racist laws ourselves,” Alrabe said.
