9th Circuit reverses judge’s ruling as racist

FILE - 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 U.S. rest in one of the cages at a facility in McAllen, Texas, on June 17, 2018. The 9th Circuit Court of Appeals issued a ruling Monday, May 22, 2023, reversing a Nevada federal judge’s unprecedented decision more than two years ago that struck down a felony deportation law as unconstitutional and discriminatory against Latinos. (U.S. Customs and Border Protection's Rio Grande Valley Sector via AP, File)
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Associated Press

LAS VEGAS (AP) — A federal appeals court has reversed an unprecedented ruling in Nevada that struck down a longstanding U.S. deportation law as racist and unconstitutional.

The 9th Circuit Court of Appeals said Monday in its long-awaited decision that Section 1326 of the Immigration and Nationality Act — which makes it a crime to return to the U.S. after deportation, removal or denied entry — “is facially neutral as to race.”

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 had thrown out an illegal reentry charge more than two years ago against a Mexican immigrant. Du said she dismissed the case on the grounds that Section 1326 of the Immigration and Nationality Act had violated Gustavo Carrillo-Lopez’s constitutional rights and is discriminatory against Latinos.

“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,” said Sirine Shebaya, executive director of the National Immigration Project.

An attorney for Gustavo-Carrillo said she, too, was disappointed by the court’s ruling but declined to say whether she plans on appealing 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. The Justice Department quickly appealed and continued to pursue Section 1326 cases across the country, because Du’s order did not include an injunction on the statute.

The U.S. government previously conceded that the 1929 law was based on racism but argued in December before a three-judge panel of the 9th Circuit 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 has not responded to a request for comment.

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.”

Between October 2021 and September 2022, the federal government’s fiscal year, 96% of people charged under Section 1326 were from Mexico, Central America, South America and the Spanish-speaking Caribbean islands.

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.

Prosecutions hit record numbers in the 2019 budget year, when nearly 90,000 people were charged under Section 1325 and nearly 25,500 under Section 1326. The number of cases has fallen since the onset of the COVID-19 pandemic, but the Justice Department continues to prosecute tens of thousands of people annually for illegal reentry.