Law used to prosecute migrants in US struck down as racist

An almost century-old federal law that makes it a crime for deported migrants to re-enter the U.S. was found unconstitutional by a judge who said its passage in 1929 was motivated, in part, by prejudice against Mexicans and other Latinos.

U.S. District Judge Miranda Du in Reno, Nevada, ruled Wednesday that the law, known as Section 1326, violates the equal protection guarantees of the Constitution’s Fifth Amendment.

“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” she said in the 43-page ruling.

Du issued the ruling in the case of a Gustavo Carrillo-Lopez, who was indicted on one count of being a deported alien after his arrest in Nevada in 2019. He had previously been deported in 1999 and again in 2012, according to prosecutors.

Rather than deny the charge, which carries a two-year prison term, Carrillo-Lopez’s lawyers attacked the law itself, arguing that it had its roots in racism and cultural animus.

Immigrant advocates welcomed the decision.

Congress first made it a crime to re-enter the U.S. after being deported in 1929. It reaffirmed the rule when it enacted Section 1326 in 1952. When the law was being considered in 1929, some lawmakers urged its passage on the basis of the theory of eugenics; a Republican congressman from Washington State said the law was needed because Mexicans were “poisoning the American citizen” and were of a “very undesirable” class, according to experts brought in by Carrillo-Lopez’s lawyers.

U.S. Justice Department said that despite the racist tone of the 1929 debate, Congress would have approved the law to protect national security.

Du, an appointee of former President Barack Obama, disagreed, writing that “the government had failed to establish that a nondiscriminatory motivation existed in 1952 for reenacting Section 1326 that exists independently from the discriminatory motivations, in either 1929 or 1952.”

The case is U.S. v. Carrillo-Lopez, 3:20-cr-00026, U.S. District Court, Nevada (Reno).