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9TH CIRCUIT RULES US DEPORTATION LAW THAT FUELED FAMILY SEPARATIONS IS 'NEUTRAL
AS TO RACE'

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 * 
 * 

Updated: 9:01 AM PDT May 23, 2023
Hilda Flores
Digital Producer
By Rio Yamat

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9th Circuit rules US deportation law that fueled family separations is 'neutral
as to race'
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 * 
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Updated: 9:01 AM PDT May 23, 2023
Hilda Flores
Digital Producer
By Rio Yamat

A federal appeals court has ruled that a U.S. deportation law that fueled family
separations at the southern border is “neutral as to race,” striking down an
unprecedented Nevada ruling that had determined it was racist and
unconstitutional.The 9th Circuit Court of Appeals made that determination Monday
in its long-awaited decision on the law known as Section 1326, which makes it a
crime to unlawfully return to the U.S. after deportation, removal or denied
entry.The ruling is a blow for advocates who had hoped to see major changes to
the nation’s immigration system after U.S. District Judge Miranda Du almost two
years ago threw out an illegal reentry charge against a Mexican immigrant. Du
said she dismissed the case on the grounds that Section 1326 of the Immigration
and Nationality Act is discriminatory against Latinos and therefore violated
Gustavo Carrillo-Lopez's constitutional rights.“We are deeply disappointed in
the Ninth Circuit’s decision to uphold Section 1326, a discriminatory law that
continues to fuel the mass incarceration of Black and brown people, waste
government resources, and tear families apart,” Sirine Shebaya, executive
director of the National Immigration Project, said in an emailed statement.A
federal public defender for Gustavo-Carrillo said she also was disappointed by
the court’s ruling but declined to say whether she will appeal to the U.S.
Supreme Court.“We intend to seek further review on this very important
constitutional issue,” Amy Cleary said in a statement to The Associated
Press.Du's ruling in August 2021 was the first of its kind since Congress made
it a crime almost a century ago to return to the U.S. after deportation under
the Undesirable Aliens Act of 1929.Her order spanning 43 pages traced the law's
history to the 1920s — a time when “the Ku Klux Klan was reborn, Jim Crow came
of age, and public intellectuals preached the science of eugenics,” said UCLA
history professor and leading Section 1326 researcher Kelly Lytle Hernandez.The
Justice Department quickly appealed. It conceded that the 1929 law was based on
racism but argued in December before a three-judge panel of the 9th Circuit in
California that later revisions — like Section 1326 — made it
constitutional.“That statute, as enacted in 1952 and amended since, is
constitutional under equal protection principles,” a Justice Department attorney
told the judges. “And the district court in this case is the only one in the
country to conclude otherwise.”The Justice Department said Monday it had no
comment on the appellate court's ruling.Amid the appeal, the U.S. government
still pursued Section 1326 cases across the country because Du’s order did not
include an injunction on the statute.Section 1326, along with its misdemeanor
counterpart Section 1325, are among the most prosecuted charges by the federal
government. Section 1325 criminalizes unauthorized entry into the U.S.The number
of cases has fallen since the onset of the coronavirus pandemic, but the Justice
Department continues to prosecute tens of thousands of people annually for
illegal reentry.At the same time, immigration lawyers and advocates nationwide
have continued to challenge the deportation law using the same legal framework
seen in the Nevada case.And there are more cases to come, said Khaled Alrabe, a
senior staff attorney at the National Immigration Project.Later this week, a
panel of judges for the 3rd Circuit Court of Appeals on the U.S. Virgin Islands
is set to hear a similar case challenging Section 1326 as racist and
unconstitutional.“We'll continue to work with our partners, advocates,
organizers and, of course, the federal defenders to repeal and rid ourselves of
these racist laws,” Alrabe said.
LAS VEGAS —

A federal appeals court has ruled that a U.S. deportation law that fueled family
separations at the southern border is “neutral as to race,” striking down an
unprecedented Nevada ruling that had determined it was racist and
unconstitutional.

The 9th Circuit Court of Appeals made that determination Monday in its
long-awaited decision on the law known as Section 1326, which makes it a crime
to unlawfully return to the U.S. after deportation, removal or denied entry.

Advertisement

The ruling is a blow for advocates who had hoped to see major changes to the
nation’s immigration system after U.S. District Judge Miranda Du almost two
years ago threw out an illegal reentry charge against a Mexican immigrant. Du
said she dismissed the case on the grounds that Section 1326 of the Immigration
and Nationality Act is discriminatory against Latinos and therefore violated
Gustavo Carrillo-Lopez's constitutional rights.

“We are deeply disappointed in the Ninth Circuit’s decision to uphold Section
1326, a discriminatory law that continues to fuel the mass incarceration of
Black and brown people, waste government resources, and tear families apart,”
Sirine Shebaya, executive director of the National Immigration Project, said in
an emailed statement.

A federal public defender for Gustavo-Carrillo said she also was disappointed by
the court’s ruling but declined to say whether she will appeal to the U.S.
Supreme Court.

“We intend to seek further review on this very important constitutional issue,”
Amy Cleary said in a statement to The Associated Press.

Du's ruling in August 2021 was the first of its kind since Congress made it a
crime almost a century ago to return to the U.S. after deportation under the
Undesirable Aliens Act of 1929.



Her order spanning 43 pages traced the law's history to the 1920s — a time when
“the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals
preached the science of eugenics,” said UCLA history professor and leading
Section 1326 researcher Kelly Lytle Hernandez.

The Justice Department quickly appealed. It conceded that the 1929 law was based
on racism but argued in December before a three-judge panel of the 9th Circuit
in California that later revisions — like Section 1326 — made it constitutional.

“That statute, as enacted in 1952 and amended since, is constitutional under
equal protection principles,” a Justice Department attorney told the judges.
“And the district court in this case is the only one in the country to conclude
otherwise.”

The Justice Department said Monday it had no comment on the appellate court's
ruling.

Amid the appeal, the U.S. government still pursued Section 1326 cases across the
country because Du’s order did not include an injunction on the statute.

Section 1326, along with its misdemeanor counterpart Section 1325, are among the
most prosecuted charges by the federal government. Section 1325 criminalizes
unauthorized entry into the U.S.

The number of cases has fallen since the onset of the coronavirus pandemic, but
the Justice Department continues to prosecute tens of thousands of people
annually for illegal reentry.

At the same time, immigration lawyers and advocates nationwide have continued to
challenge the deportation law using the same legal framework seen in the Nevada
case.

And there are more cases to come, said Khaled Alrabe, a senior staff attorney at
the National Immigration Project.

Later this week, a panel of judges for the 3rd Circuit Court of Appeals on the
U.S. Virgin Islands is set to hear a similar case challenging Section 1326 as
racist and unconstitutional.

“We'll continue to work with our partners, advocates, organizers and, of course,
the federal defenders to repeal and rid ourselves of these racist laws,” Alrabe
said.


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