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Key Border Control Law Survives Challenge on Appeal

In a long-awaited decision over an immigration policy at the heart of the nation's border-control efforts, the 9th U.S. Circuit Court of Appeals reversed a lower court ruling on the constitutionality of the federal law making it a crime to unlawfully return to the U.S. after deportation, the Associated Press reports. Almost two years ago, a federal district judge in Nevada threw out an illegal reentry charge against a Mexican immigrant, ruling that Section 1326 of the Immigration and Nationality Act is discriminatory against Latinos. But the appellate court held that the law, which has fueled family separations at the southern border, is "neutral as to race." The ruling is a blow for advocates who had hoped the original ruling would lead to major changes to the nation’s immigration system. “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,” Sirine Shebaya, executive director of the National Immigration Project, said in an emailed statement. A federal public defender for defendant Gustavo Carrillo-Lopez declined to say if they would take the challenge to the Supreme Court.

The ruling in August 2021 by U.S. District Judge Miranda Du 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. Her order spanning 43 pages traced the law’s history to the 1920s — a time when “the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals preached the science of eugenics,” said UCLA history professor and leading Section 1326 researcher Kelly Lytle Hernandez. The Justice Department conceded that the 1929 law was based on racism but argued in December before a three-judge panel of the 9th Circuit in California 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 government attorney told the judges. “And the district court in this case is the only one in the country to conclude otherwise.” Amid the appeal, the U.S. government still pursued Section 1326 cases across the country because Du’s order did not include an injunction on the statute. 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.


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