In the News: Judge Strikes Down a Law Making it a Felony for Immigrants to Re-Enter the US After Deportation

Section 1326 is the section of immigration law stating that it is a felony to re-enter the United States after deportation. Under this law:

“Any alien deported pursuant to section 1252(h)(2) of this title who enters, attempts to enter, or is at any time found in the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.” 

This week, Judge Miranda Du, a federal district court judge in Nevada, struck down the law while dismissing a case against Gustavo Carrillo-Lopez, indicted last summer for violating section 1326.

“The defense challenged section 1326’s constitutionality by presenting a case based on historical record and showcasing how racism is intertwined with the law’s origin story. Carrillo-Lopez establishes that racism and eugenics were present, motivating factors during Congressional conversations about the 1929 law, and previous failed immigration legislation.” –Insider.com.

Judge Du found the law to be in violation of the Equal Protection Clause.

“For a judge to find a law in violation of the Equal Protection clause—to find it essentially “too racist” to be constitutional—the victim of the law has to show one of two things. They have to prove that the law, as applied, treats one race fundamentally differently and worse than others (lawyers call this disparate impact) or they have to show that Congress passed the law with the intent to racially discriminate. Judge Du found that Section 1326 failed both tests with regards to Latinx immigrants.” –The Nation

The Justice Department is likely to appeal the ruling to the US Court of Appeals for the 9th Circuit. This is the court that issues binding decisions on federal law. What you need to understand about that is that this means one judge’s decision does not instantly change the law.

If you or a loved one re-enter the United States after being deported, you can still be arrested and charged, in spite of this ruling. If you want to return to the United States it is wise to discuss your current options with an immigration attorney before attempting to cross the border. 

See also:

What Are Your Options When You’re Undocumented? 

5 Steps to A Smoother Immigration Process

What Happens When You Lose Your Job on an H-1B Visa?