U.S. District Court: "Section 1326 disparately impacts Latinx people and . . . the statute was motivated, at least in part, by discriminatory intent"

Criminal immigration prosecutions comprise a large chunk of the caseload of the federal courts.  As stated by the National Immigrant Justice center in its report Lgacy of Injustice: The U.S. Criminalization of Migration (2020):

"For nearly 20 years, the U.S. government has prosecuted migration-related offenses in greater numbers than any other type of federal offense in the United States. Most recently, the Trump administration . . .used migration-related prosecutions as part of its anti-immigrant policymaking in ways that systematically separate families and violate the United States’ national and international legal obligations." (footnote omitted).

Ingrid Eagly blogged earlier this month about an April 2021 by U.S. District Court Judge Michael H. Simon (D. Oregon)  in an illegal reentry case.  As reported by Maxine Bernstein of the Oregonian, Judge Simon issued a 32-page opinion that carefully reviewed the historical record of the racial animus behind the illegal reentry law, which is codified at 8 U.S.C. 1326. 

Photo by U.S. District Court, District of Nevada

Today, Chief Judge Miranda M. Du of the U.S. District Court, District of Nevada, an appointee of President Obama who fled by boat from Viet Nam at age 8, issued the following ruling:

"Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent . . .  [T]he Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment."

Professors Benjamin Gonzalez O’Brien (Political Science, San Diego State) and Kelly Lytle Hernández (History UCLA) provided expert opinions on the motion, which were cited frequently in the order.

 

A Nevada court just ruled Sec. 1326 of the Immigration and Nationality Act—which makes unauthorized reentry at the border a felony—unconstitutional.

Like Sec. 1325, this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court. pic.twitter.com/lFOhybJ6A5

— Julián Castro (@JulianCastro) August 18, 2021

KJ