A federal judge in Nevada has dismissed an indictment against an immigrant who was charged with illegal re-entry, finding that the law is racially motivated and has a “disparate impact on Latinx persons.”
Section 1326 makes it illegal for someone who has been deported or denied entry to the U.S. to re-enter, punishable by fines and possible jail time. The case in question was against someone charged with illegal re-entry who had been found in the country illegally in 2019 after having been deported multiple times.
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But the judge ruled the law behind the charge of illegal re-entry is racially motivated and discriminatory.
“Because [the defendant] 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… the court will grant the motion,” the ruling by Judge Miranda Du said.
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The case cited Border Patrol data that over 97% of people apprehended at the U.S.-Mexico border in 2000 were of Mexican descent, and 87% in 2010. The government did not dispute disparate impact, but instead attributed it to geography and proportionality – noting that Mexico borders the U.S. – as well as the history of Mexican employment issues and other factors.
The government also argued that it makes sense that Mexican citizens make up a high percentage of illegal entry defendants “given the suggestion that they made up a disproportionately high percentage of the overall illegal alien population.”
“The court is not persuaded,” Du wrote.
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Du accepted the argument that the legislative history shows that racism and eugenics were motivating factors in the passage of legislation in 1929, which formed the basis for the 1952 legislation. She also said there has “been no attempt at any point to grapple with the racist history of Section 1326 or remove its influence on the legislation.”
As a consequence, the judge ruled that the law violated the equal protection clause of the Fifth Amendment, and therefore threw out the indictment.
