Law that penalizes re-entry to the U.S. is unconstitutional

Federal judge Miranda Du ruled in Nevada that a 1929 criminal law that makes it a crime for a deported person to return to the country is unconstitutional.

The order issued on Wednesday is believed to influence in a significant way U.S. immigration trials. The ruling states that the law, known as Section 1326 is based on “racist and nativist origins,” and discriminates against Mexicans and Hispanics, violating the equal protection clause of the 5th Constitutional Amendment.

As reported by newswep.com, Section 1326 of the Immigration and Nationality Act makes it a felony for a person to enter the United States after they have been denied access, or have been deported or expelled. The law was enacted in 1952 using the wording of the Unwanted Aliens Act passed by Congress in 1929. The penalty for violating this law has been increased five times between 1988 and 1996 to increase its deterrent value.

Franny Forsman, former Director of the Nevada Federal Office of Public Defenders, said Thursday that anyone who works in federal court knows the statute. “Over the years, a large number of cases have been filed under this section. Most of them are cases for public defenders”.

The Director said he expects the government to file an appeal with the Federal Court of Appeals for the 9th Circuit in San Francisco.

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However, the process does not seem to be so easy. Julián Castro, Secretary of Housing and Urban Development doubts that the Department of Justice wants to defend a law with “an incredibly racist record.”

Wet Back Law

According to Forsman it will be difficult “to contradict its logic.” He said the ruling it is complicated “to circumvent a statute that was known as the ‘Wet Back Law’ among those who enacted it.” The derogatory term often refers to Mexican immigrants entering the country illegally, but it is also used to denigrate all Hispanics.

“More importantly, the government does not dispute that Section 1326 focuses more on Mexican and Latino individuals,” the judge said.

In addition, Du noted that she did not see publicly available data on the nationality of people prosecuted for violations of Section 1326, but did refer to Border Patrol statistics that indicate that more than 97% of people detained at the border in the year 2000 were of Mexican origin, 86% in 2005 and 87% in 2010.

“The government argues that the impact is ‘a product of geography, not discrimination and that the statistics are rather a reflection of Mexico’s proximity to the United States, the history of labor patterns in Mexico, and socio-political and economic factors that drive migration, “wrote Du.” This court is not convinced. “