Illegal entry: US asks appeals court to reverse deportation law ruling

The Justice Department on Thursday conceded that a 1929 law criminalising entrance to the US after deportation was motivated by racism, but said subsequent revisions made it constitutional. It urged an appellate court to overturn a Nevada judge’s landmark decision striking it down.

In an August 2021 order, US District Judge, Miranda Du, in Reno, dismissed an illegal re-entry charge against Mexican immigrant, Gustavo Carrillo-Lopez, on the grounds that the law known as Section 1326 violated his constitutional rights, and is discriminatory against Latinos.

Du’s ruling was the first of its kind since Congress made it a crime almost a century ago for a person to return to the US after deportation. It marked a major victory for advocates who want major changes to the nation’s immigration system.

US Government appeals against Du’s ruling

But the US government appealed, and on Thursday morning, made its case to a three-judge panel of the 9th Circuit Court of Appeals in Pasadena, California.

“I don’t think a federal statute can fall because one judge finds it’s discriminatory,” Scott Meisler, a Justice Department attorney, said in arguments that were live-streamed.

Meisler said that the US government is very conscious of the troublesome intent of the Undesirable Aliens Act of 1929, which largely targeted immigration from Mexico. But he faulted Du for relying on that version of the law in her decision rather than the revised statute enacted by Congress in 1952, known as the Immigration and Nationality Act.

Section 1326 of the revised code criminalizes entry into the US for anyone who has been denied admission, removed, or previously deported. That statute, as enacted in 1952, and amended since then, is constitutional under equal protection principles, Meisler told the judges, and the district court in this case is the only one in the country to conclude otherwise.

District Judge Miranda Du’s ruling

In her ruling, Du wrote that the 1952 revision failed to cleanse the 1929 law’s racist, nativist roots, adding that amendments to Section 1326 over the years have simply made the provision more punitive and broadened its reach.

Erwin Chemerinsky, attorney for Carrillo-Lopez, pushed back against the Justice Department’s claims that Du’s ruling was clearly erroneous. Chemerinsky said the appellate court should uphold the decision because the 1929 statute was the basis for the 1952 re-enactment, and it’s the basis of the law that exists today.

“It’s telling that the government conceded that the 1929 statute was motivated by discriminatory intent,” he said.

10 States in the US could be affected by this ruling

There is no deadline for the 9th Circuit to issue its ruling. In the meantime, the fate of a case that could have much broader implications hangs in the balance. If Du’s ruling is upheld, the government can no longer prosecute people for unlawful re-entry in the 10 States under the 9th Circuit’s jurisdiction, including Nevada and California.

Ann Garcia, a staff attorney for the non-profit, National Immigration Project, tuned in to the oral arguments.

“The Ninth Circuit Court of Appeals has an opportunity to ensure that a law that is based on white supremacy and xenophobia is no longer used to unfairly prosecute immigrants of colour,” Garcia said after the hearing.

With agency inputs