In a groundbreaking ruling with potentially wide implications for immigration cases, a judge in Nevada has found a criminal law that makes it a felony for a person who has been deported from the U.S. to return to the country is "racist" and "unconstitutional."
“The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” U.S. District Judge Miranda Du wrote in a ruling issued on Aug. 18.
Her order dismissed a case against a man named Gustavo Carrillo-Lopez, who was indicted during the Trump administration. Carrillo-Lopez was arrested in Nevada in 2019 after having been deported in 1999 and again in 2012, according to the government prosecutor
“It is the first ruling of its kind,” said Assistant Federal Public Defender Lauren Gorman, who argued for the dismissal. “Equal protection challenges have been made to the statute before, but this was the first ruling finding it unconstitutional.”
In her order, Du found the law known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latino people in violation of the equal protection clause of the Fifth Amendment.
Section 1326 of the Immigration and Nationality Act makes it a crime for a person to enter the US if they have been denied admission, deported or removed.
It was enacted in 1952 using language from the Undesirable Aliens Act passed by Congress in 1929. Penalties were stiffened five times between 1988 and 1996 to increase its deterrent value.
The judge said she saw no available data about the national origin of people prosecuted under Section 1326, but used statistics from the U.S. Border Patrol that show that more than 97 percent of people apprehended at the border in 2000 were of Mexican descent, 86 percent in 2005, and 87 percent in 2010.
“The government argues that the stated impact is ‘a product of geography, not discrimination,’ and that the statistics are rather a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns and the socio-political and economic factors that drive migration,” Du wrote.
“The court is not persuaded.”
Julian Castro, who was Secretary of Housing and Urban Development in the Obama administration, tweeted that he doubted the Justice Department would want to defend a law with “an incredibly racist history.”
Acting U.S. Attorney Christopher Chiou and an aide did not immediately respond to messages about the ruling but President Biden has promised immigration reform and said he was against the aggressive and racist policies enforced in the previous administration.
Du, a Vietnamese immigrant, was nominated to the federal bench by former President Barack Obama and sworn in in 2012.
Born in Cà Mau, Vietnam, Du left the country at age 9, when her family sought asylum in Malaysia. They spent a year in Malaysian refugee camps before ultimately being granted asylum in the United States.
Du received a Bachelor of Arts from University of California, Davis in 1991 and a Juris Doctor from University of California, Berkeley School of Law in 1994.
“The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” U.S. District Judge Miranda Du wrote in a ruling issued on Aug. 18.
Her order dismissed a case against a man named Gustavo Carrillo-Lopez, who was indicted during the Trump administration. Carrillo-Lopez was arrested in Nevada in 2019 after having been deported in 1999 and again in 2012, according to the government prosecutor
“It is the first ruling of its kind,” said Assistant Federal Public Defender Lauren Gorman, who argued for the dismissal. “Equal protection challenges have been made to the statute before, but this was the first ruling finding it unconstitutional.”
In her order, Du found the law known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latino people in violation of the equal protection clause of the Fifth Amendment.
Section 1326 of the Immigration and Nationality Act makes it a crime for a person to enter the US if they have been denied admission, deported or removed.
It was enacted in 1952 using language from the Undesirable Aliens Act passed by Congress in 1929. Penalties were stiffened five times between 1988 and 1996 to increase its deterrent value.
The judge said she saw no available data about the national origin of people prosecuted under Section 1326, but used statistics from the U.S. Border Patrol that show that more than 97 percent of people apprehended at the border in 2000 were of Mexican descent, 86 percent in 2005, and 87 percent in 2010.
“The government argues that the stated impact is ‘a product of geography, not discrimination,’ and that the statistics are rather a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns and the socio-political and economic factors that drive migration,” Du wrote.
“The court is not persuaded.”
Julian Castro, who was Secretary of Housing and Urban Development in the Obama administration, tweeted that he doubted the Justice Department would want to defend a law with “an incredibly racist history.”
Acting U.S. Attorney Christopher Chiou and an aide did not immediately respond to messages about the ruling but President Biden has promised immigration reform and said he was against the aggressive and racist policies enforced in the previous administration.
It is uncertain if Biden's DOJ will appeal the ruling. While Biden has made a marked shift away from Trump’s broadly punitive and often downright cruel policies, the new president’s approach is hardly a wide open welcome mat. Some 500,000 immigrants have been deported since Biden took office, according to a recent New York Times analysis Assistant U.S. Attorney Richard Casper, who prosecuted the case, did not respond to a request for comment.
Du, a Vietnamese immigrant, was nominated to the federal bench by former President Barack Obama and sworn in in 2012.
Born in Cà Mau, Vietnam, Du left the country at age 9, when her family sought asylum in Malaysia. They spent a year in Malaysian refugee camps before ultimately being granted asylum in the United States.
Du received a Bachelor of Arts from University of California, Davis in 1991 and a Juris Doctor from University of California, Berkeley School of Law in 1994.
“I think (Du's ruling) will have implications because it’s going to be difficult to get around her reasoning,” said Franny Forsman, a retired longtime chief of the Federal Public Defender’s Office in Nevada,
“It’s a little hard to get around a statute that was called the ‘Wetback Act’ by the people enacting it,” she said, referring to a racist slur applied to people from Mexico.
“It’s a little hard to get around a statute that was called the ‘Wetback Act’ by the people enacting it,” she said, referring to a racist slur applied to people from Mexico.
No comments:
Post a Comment