9th Circuit rules US deportation law that fueled family separations is ‘neutral as to race’

In this photo provided by U.S. Customs and Border Protection, people who've been taken into...
In this photo provided by U.S. Customs and Border Protection, people who've been taken into custody related to cases of illegal entry into the United States rest in one of the cages at a facility in McAllen, Texas, on June 17, 2018. As thousands of children were taken from their parents at the southern border amid a crackdown on illegal crossings by the Trump administration, a federal public defender in San Diego set out to find new strategies to go after the longstanding deportation law fueling the family separations.(U.S. Customs and Border Protection's Rio Grande Valley Sector via AP, File)
Published: May. 23, 2023 at 8:40 AM PDT
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LAS VEGAS, Nev. (AP) - A federal appeals court has ruled that a U.S. deportation law that fueled family separations at the southern border is “neutral as to race,” striking down an unprecedented Nevada ruling that had determined it was racist and unconstitutional.

The 9th Circuit Court of Appeals made that determination Monday in its long-awaited decision on the law known as Section 1326, which makes it a crime to unlawfully return to the U.S. after deportation, removal or denied entry.

The ruling is a blow for advocates who had hoped to see major changes to the nation’s immigration system after U.S. District Judge Miranda Du almost two years ago threw out an illegal reentry charge against a Mexican immigrant. Du said she dismissed the case on the grounds that Section 1326 of the Immigration and Nationality Act is discriminatory against Latinos and therefore violated Gustavo Carrillo-Lopez’s constitutional rights.

“We are deeply disappointed in the Ninth Circuit’s decision to uphold Section 1326, a discriminatory law that continues to fuel the mass incarceration of Black and brown people, waste government resources, and tear families apart,” Sirine Shebaya, executive director of the National Immigration Project, said in an emailed statement.

A federal public defender for Gustavo-Carrillo said she also was disappointed by the court’s ruling but declined to say whether she will appeal to the U.S. Supreme Court.

“We intend to seek further review on this very important constitutional issue,” Amy Cleary said in a statement to The Associated Press.

Du’s ruling in August 2021 was the first of its kind since Congress made it a crime almost a century ago to return to the U.S. after deportation under the Undesirable Aliens Act of 1929.

Her order spanning 43 pages traced the law’s history to the 1920s — a time when “the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals preached the science of eugenics,” said UCLA history professor and leading Section 1326 researcher Kelly Lytle Hernandez.

The Justice Department quickly appealed. It conceded that the 1929 law was based on racism but argued in December before a three-judge panel of the 9th Circuit in California that later revisions — like Section 1326 — made it constitutional.

“That statute, as enacted in 1952 and amended since, is constitutional under equal protection principles,” a Justice Department attorney told the judges. “And the district court in this case is the only one in the country to conclude otherwise.”

The Justice Department said Monday it had no comment on the appellate court’s ruling.

Amid the appeal, the U.S. government still pursued Section 1326 cases across the country because Du’s order did not include an injunction on the statute.

Section 1326, along with its misdemeanor counterpart Section 1325, are among the most prosecuted charges by the federal government. Section 1325 criminalizes unauthorized entry into the U.S.

The number of cases has fallen since the onset of the coronavirus pandemic, but the Justice Department continues to prosecute tens of thousands of people annually for illegal reentry.

At the same time, immigration lawyers and advocates nationwide have continued to challenge the deportation law using the same legal framework seen in the Nevada case.

And there are more cases to come, said Khaled Alrabe, a senior staff attorney at the National Immigration Project.

Later this week, a panel of judges for the 3rd Circuit Court of Appeals on the U.S. Virgin Islands is set to hear a similar case challenging Section 1326 as racist and unconstitutional.

“We’ll continue to work with our partners, advocates, organizers and, of course, the federal defenders to repeal and rid ourselves of these racist laws,” Alrabe said.