9th Circuit Court shoots down ‘anti-racist’ push to nix immigration law

A federal appeals court overturned a lower court ruling that had found a key section of immigration law to be tainted by racism, dealing a blow to “anti-racist” activists who see the case as a major test for cleansing the federal code of bigoted statutes.

The 9th U.S. Circuit Court of Appeals ruled that Section 1326 of the Immigration and Nationality Act, which makes it a felony to try to sneak back into the country after being deported, is not racist on its face, and wasn’t written with racist intent by Congress in the 1950s.

The three-judge panel overturned a ruling by District Judge Miranda M. Du, who had found the law’s origins to be racist and who had nixed a prosecution against an illegal immigrant who had been caught sneaking back in after a deportation.

“We hold that the district court clearly erred in its finding that Congress’s enactment of § 1326 was motivated in part by the purpose of discriminating against Mexicans or other Central and South Americans,” Circuit Court Judge Sandra S. Ikuta wrote for the unanimous appeals court.

The case grew out of a challenge by Gustavo Carrillo-Lopez, a Mexican who was deported in 1999 and again in 2012, the second time after earning a felony drug conviction and a misdemeanor spousal-abuse conviction.

He snuck in again, was found in 2019 with drugs and would plead guilty to drug trafficking. But in 2020 he was also charged with illegal entry with enhancements because of his other criminal record.

Carrillo-Lopez then moved to kill the indictment, arguing the law unconstitutionally discriminated against Mexicans, Central Americans and South Americans.

Judge Du, an Obama appointee to the federal bench in Nevada, sided with Carrillo-Lopez, in what some immigration activists and anti-racism crusaders called a long-overdue reckoning with systemic racism at the heart of immigration law.

In this case, Carillo-Lopez backers said a 1929 version of the law barring illegal reentry was racist. They argued that because neither the 1952 Congress that wrote the basic version of the illegal reentry law or the 1996 Congress that did the last update explicitly repudiated the 1929 Congress’s actions, the law remains tainted.

Judge Du had bought that argument in the lower court, saying Congress had never gone through a “cleanse” of the law.

Judge Ikuta called that a “mistaken” approach to the issue.

“Contrary to Carrillo-Lopez and the district court’s reasoning, a legislature has no duty ‘to purge its predecessor’s allegedly discriminatory intent,’” Judge Ikuta wrote.

Besides, the appeals court ruled, the 1952 rewrite was a clean break from the 1929 law in that it completely overhauled the immigration system.

In doing so, the Senate said it was moving consciously to “erase from our statute books any discrimination” in the immigration context that was based on race.

Carillo-Lopez had also argued in court that the law was discriminatory because it chiefly ended up snaring Mexicans or Central Americans.

But Judge Ikuta said that’s simply the logical outcome of America’s sharing a nearly 2,000-mile border with Mexico, which itself sits just north of the key Central American countries that provide many illegal immigrants.

Carillo-Lopez’s lawyer signaled the 9th Circuit’s ruling won’t be the last word.

“We intend to seek further review on this very important constitutional issue,” Amy Cleary said in a statement to The Associated Press.

Section 1326 prosecutions are the most common type of case federal prosecutors bring, with tens of thousands of them each year.

The average sentence served is about six months imprisonment, according to a 2021 Justice Department report.