The federal law that criminalizes illegal reentry to the United States is unconstitutional because it is “racist” against “Latinx” illegal aliens, a federal judge ruled on Wednesday.
Judge Miranda Du, appointed by former President Obama in 2012, ruled in favor of a previously deported illegal alien from Mexico, Gustavo Carrillo-Lopez, who filed a motion to dismiss an indictment against him for illegal reentry, claiming it is discriminatory.
Specifically, Carrillo-Lopez argued that Section 1326 of the Immigration and Nationality Act (INA) has racist origins and is therefore in violation of the equal protection guarantee of the Fifth Amendment.
Du granted Carrillo-Lopez’s motion and ruled that the law criminalizing illegal reentry is unconstitutional because she claims it is “racist” against “Latinx” illegal aliens, though she admits there is “no publicly available data” showing federal prosecutors target Hispanic illegal aliens over illegal aliens from other regions of the world.
Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus—and as further discussed below—the Court will grant the Motion. [Emphasis added]
Because Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent, the Court finds that he has. Finally, the Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment. [Emphasis added]
Carrillo-Lopez argues, convincingly, that Section 1326 disparately impacts Mexican and Latinx defendants. While no publicly available data exists as to the national origin of those prosecuted under Section 1326, over 97% of persons apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010. [Emphasis added]
The case could go before the Court of Appeals for the Ninth Circuit, but only if President Joe Biden’s Department of Justice (DOJ) appeals Du’s ruling. If not, Republican attorneys general would have to intervene in the case to ensure it is appealed in court.
Should the case be appealed, either way, and the Ninth Circuit affirms Du’s ruling, the case would have to be taken up by the U.S. Supreme Court (SCOTUS) on appeal.
The latest DOJ data indicates that in Fiscal Year 2019, nearly 25,500 previously deported illegal aliens were prosecuted for illegally reentering the U.S. In Fiscal Year 2018, almost 24,000 were prosecuted.
The case is U.S. v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026 in United States District Court for the District of Nevada.
John Binder is a reporter for Breitbart News. Email him at firstname.lastname@example.org. Follow him on Twitter here.