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Federal Judge Rules Immigration Law Making Reentry a Felony is Unconstitutional


On August 18, 2021, a Nevada federal judge ruled that a longstanding immigration law that makes reentering the United States after deportation a felony offense is unconstitutional since the law was enacted on racist grounds against Latinos, which violates the Fifth Amendment’s equal protection clause.

The ruling dismissed the case against Gustavo Carrillo-Lopez, who was indicted last summer for being in the U.S. after being deported twice in 1999 and 2012. He then allegedly reentered the country illegally after his 2012 deportation.

According to federal laws, reentering the country without permission is a felony, which carries a maximum prison term of 20 years. Entering the country without permission is a misdemeanor, punishable by imprisonment for up to six months.

Judge Miranda Du ruled that section 1326—which criminalizes reentry to the U.S. if a person was deported or has previously been denied admission—was created with discriminatory intent. Congress made reentering the country after being deported illegal in 1929 by enacting the Undesirable Aliens Act and reaffirmed the law in 1952 after introducing section 1326.

Du wrote:

“The evidence clearly indicates, as both parties and other district courts agree, that the Act of 1929 was passed during a time when nativism and eugenics were widely accepted, both in the country at large and by Congress, and that these racist theories ultimately fueled the Act’s passage.”

According to expert testimony cited in the case, one lawmaker arguing for the Undesirable Aliens Act said that Mexicans were “poisoning the American citizen” and were considered an “undesirable class.” Furthermore, the defense also used how lawmakers used racial slurs referring to Mexicans who illegally enter the United States as evidence of the influence of racism into creating the laws.

A report by states that over 25,000 people in the fiscal year 2019 were charged under the reentry immigration law. This number represents approximately 30 percent of all federal criminal cases.

Eighty-seven percent of people arrested at the border in 2010 were of Mexican descent. In 2000, 97 percent were of Mexican descent.

Immigration advocates have praised the ground-breaking court decision. Although the Department of Justice can appeal the decision, Secretary of Housing and Urban Development Administration Julian Castro tweeted that he doubts the Biden administration will contest the ruling.

If you have been charged with a criminal offense in Phoenix, AZ, and fear deportation, call Kanu & Associates, P.C. at (602) 353-7795 or fill out our online contact form today to schedule a consultation.