LAS VEGAS -- The Justice Department on Thursday conceded that a 1929 law criminalizing entrance to the U.S. after deportation was motivated by racism but said subsequent revisions made it constitutional, as it urged an appellate court to overturn a Nevada judge’s landmark decision striking it down.
In an August 2021 order, U.S. District Judge Miranda Du in Reno dismissed an illegal reentry charge against Mexican immigrant Gustavo Carrillo-Lopez on the grounds that the law known as Section 1326 violated his constitutional rights and is discriminatory against Latinos.
Du’s ruling was the first of its kind since Congress made it a crime almost a century ago to return to the U.S. after deportation. It marked a major victory for advocates who want major changes to the nation's immigration system.
But the U.S. government appealed and on Thursday morning made its case to a three-judge panel of the 9th Circuit Court of Appeals in Pasadena, California.
“I don’t think a federal statute can fall because one judge finds it’s discriminatory,” Scott Meisler, a Justice Department attorney, said in arguments that were livestreamed.
Meisler said that the U.S. government is “very conscious” of the “troublesome” intent of the Undesirable Aliens Act of 1929, which largely targeted immigration from Mexico. But he faulted Du for relying on that version of the law in her decision rather than the revised statute enacted by Congress in 1952 known as the Immigration and Nationality Act.
Section 1326 of the revised code criminalizes entry into the U.S. for anyone who has been denied admission, removed or previously deported.
“That statute, as enacted in 1952 and amended since, is constitutional under equal protection principles,” Meisler told the judges, “and the district court in this case is the only one in the country to conclude otherwise.”
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.”
Erwin Chemerinsky, attorney for Carrillo-Lopez, pushed back against the Justice Department’s claims that Du’s ruling was “clearly erroneous.”
Chemerinsky said the appellate court should uphold the decision because “the 1929 statute was the basis for the 1952 reenactment, and it’s the basis of the law that exists today.”
“It’s telling that the government conceded that the 1929 statute was motivated by discriminatory intent,” he said.
There is no deadline for the 9th Circuit to issue its ruling. In the meantime, the fate of a case that could have much broader implications hangs in the balance.
If Du’s ruling is upheld, the government can no longer prosecute people for unlawful reentry in the 10 states under the 9th Circuit’s jurisdiction, including Nevada and California.
Ann Garcia, a staff attorney for the nonprofit National Immigration Project, tuned in to the oral arguments.
“The Ninth Circuit Court of Appeals has an opportunity to ensure that a law that is based in white supremacy and xenophobia is no longer used to unfairly prosecute immigrants of color,” Garcia said after the hearing.