Section 1326 deals with the entry into the United States of individuals who have been denied entry or have re-entered the United States after they have been deported back to their native country.
Du dismissed the case against Gustavo Carrillo-Lopez, an immigrant who had been previously indicted during the former administration for unlawful re-entry. The Trump administration often used Section 1326 as an essential component of its zero-tolerance immigration stance.
According to the indictment, Carrillo-Lopez was discovered back in the United States after two previous deportations in March of 1999 and again in February of 2012. Carrillo-Lopez had since filed a motion asking the charges against him be dismissed, citing them in violation of his Fifth Amendment rights.
Under § 1326 of the Immigration and Nationality Act, entry into the United States is unlawful for anyone formerly denied admission or who was deported or removed. The law was enacted in 1952 using language from the original Undesirable Aliens Act passed in 1929, criminalizing unlawful re-entry into the United States.
Over the years, penalties for unlawful entry and re-entry have since been increased five additional times, with public defenders now seeing thousands of cases under § 1326 each year.
Du called the law racist and discriminatory against Mexican and Latinx individuals. She wrote in her ruling that “the record before the court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326.”
In her decision, she continued, “The amendments to Section 1326 over the past ninety years have not changed its function but have simply made the provision more punitive and broadened its reach.”
The basis for her decision was the testimony of two professors, Benjamin Gonzalez O’Brien, a political scientist at San Diego State University and Kelly Lytle Hernandez, a historian from the University of California, Los Angeles. Their testimony provided enough evidence for Du to conclude that the passage of the original Section 1326 in 1952 was racially motivated.
Immigration offenses under Section 1326 are now the most prosecuted crimes in our federal courts. Currently, federal law now makes it a misdemeanor to enter the country without appropriate permission, punishable by up to six months in prison. Re-entry is a felony punishable by up to 20 years in prison.
While the decision is expected to be appealed, the court’s finding Section 1326 unconstitutional is a landmark decision in light of our current immigration environment. It seems to point to the fact that the courts are willing to look at our existing immigration laws and admit that some are inherently racist. The consequences of this and potential new rulings, however, remain to be seen.
When you have been accused of unlawful entry or reentry or any other immigration offenses, getting legal assistance is imperative.
Contact the skilled immigration attorneys at LV Criminal Defense at (702) 623-6362 to schedule an appointment to discuss your legal rights and options.