On Wednesday, Aug. 18, a federal court in Nevada ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after deportation, is unconstitutional. 

The judge ruled that because this section of law was enacted with clear discriminatory intent against Latinos, it is in violation of the Equal Protection Clause. 

Judge Miranda Du, issued an order on Wednesday dismissing a case against Gustavo Carrillo-Lopez, who was indicted last Summer for being in the states despite his deportations in 1999 and 2012. 

This appears to be the first instance where a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts. 

“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion," Du wrote. 

This case is a loss for the Department of Justice (DOJ), which first filed the charge during the Trump administration, an era of aggressive immigration policies. 

Left-leaning groups such as the National Immigrant Justice Center (NIJC), have insisted that the Trump administration has “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero-tolerance” immigration strategy. 

“These laws are harmful, costly, and discriminatory in their origin and application. The laws stem from a dark period of xenophobic history when lawmakers influenced by eugenicists sought to criminalize the act of migration in the 1920s. The Trump administration has weaponized these laws to demonize immigrants and tear families and communities apart,” NIJC wrote. 

Julian Castro, former secretary of the Housing and Urban Development Administration under President Barack Obama, tweeted on Wednesday that the law has “an incredibly racist history,” and that he doesn’t have confidence that Biden’s DOJ will want to defend it in the appellate court. 

Section 1326 makes it illegal for anyone to enter, re-enter, or attempt to enter the country, if they have previously been denied admission to the U.S, been removed, departed or excluded from the U.S., or left under an order of removal or deportation. 

In most cases, this is punishable with a fine and up to two years in a federal prison, with harsher penalties for those convicted of felonies or three or more misdemeanors involving drugs or violence against others. 

According to SCOTUSblog.com, more than 25,000 people were charged under the statute in the 2019 fiscal year, which is about 30% of all federal criminal cases. 

The statute was amended five times in the 1980s and 1990s to increase the punishments for violation. 

Du’s order notes that the law has a disparate impact on Latinos, stating that 87% of individuals apprehended at the border in 2010 were Mexican. 

The federal government defended itself by arguing that these statistics are simply a function of geography and Mexico’s closeness to the states, but Du said the argument was not convincing enough. 

"The federal government's plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection," Du wrote.

 Du cited the arguments of a history professor at UCLA, Kelly Lyte Hernández, who traced the legislative history of the law to the 1920s, when the government established quotas based on nationality. 

"Over the years, the racist origins of Sections 1325 and 1326 have been buried and the policy built on them normalized. But the criminalization of border crossing has an enduring impact on the lives of immigrants and their families,” wrote in an amicus brief.

Hearings on bills during this time period included arguments from eugenics proponents, painting those crafting deportation laws as “successful breeders of thoroughbred horses.” 

While Section 1326 wasn’t enacted until 1952, Du said that much of the provisions in the earlier 1929 law persisted in the measure passed two decades later, and there was little to no significant efforts from Congress to acknowledge the origins. 

Du also pointed out that in 1952, Congress overrode a veto from President Harry Truman in which he voiced concerns that the latest immigration act perpetuates past injustices. 

United We Dream, the first and largest immigrant youth-led organization in the nation, tweeted in celebration of this latest victory for immigrant rights.

“Our people should be free to move and free to stay! Migration is a human right, and should never be criminalized!”