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Nevada Judge Strikes Down Laws Detaining Immigrants Over Its Racist Roots

Empty prison cells and a concrete floor
Paul Kelly

A federal judge in Nevada has struck down a law that targets some immigrants who come to the country illegally.

Section 1326 in U.S. law says if you were denied entry to the U.S. or were deported at some point, simply entering the country becomes a crime.

Nevada district court judge Miranda Du struck it down, saying it violates the Constitution because of its racist, anti-Mexican origins in the late 1920’s, even though the law was reenacted under a different name in 1952.

“Moreover, the government fails to demonstrate how any subsequent amending Congress addressed either the racism that initially motivated the Act of 1929 or the discriminatory intent that was contemporaneous with the 1952 reenactment,” she wrote.

Du ruled that the government didn’t prove it would have passed the law without its original “discriminatory intent”, so it violates the Fifth Amendment.

Historians like Kelly Lytle Hernandez have found that racism played a significant role in the law’s creation.

“(The law was created) in 1929 by a eugenicist and white supremacist with the clear intention of targeting Mexican immigrants in particular, Latinx immigrants in general,” said Hernandez, a UCLA history professor and author who gave testimony in the Nevada case.

“It's time to go back and reckon with that history and address it and redress it. And that's what this judge has done,” Hernandez said.

Ahilan Arulanantham, a law professor at UCLA, said this was a “extraordinarily important decision. It is the first decision striking down the illegal reentry statute as unconstitutional.”

Arulanantham said this law – and another penalizing initial illegal entry into the U.S. – are by far the most prosecuted federal crimes.

“There are whole prisons in the southwest where almost everybody in the prison is just serving time for this offense,” he said. “And overwhelmingly, 98 or 99% of the people prosecuted for this crime are Latino.”

Still, he said if this law no longer existed, it wouldn’t stop deportations. Section 1326 often just puts people in prison before deportation.

“This is really about a criminal law that is superimposed on top of the immigration system that sends people to prison before they go through the immigration process,” he said. “The vast, vast majority of the people who are convicted of this crime will get deported, but they'll only get deported after they've gone to prison.”

Beyond that, Arulanantham said if this law is struck down as unconstitutional, that wouldn’t keep Congress from passing another, similar law.

“If you have a law which is enacted with racist intent, and a Congress later comes and wants to reenact that same law, they have to consciously acknowledge the racist origin and choose now to keep the law in place even while disavowing the racist origin. And that certainly could be done,” he said.

The U.S. Department of Justice filed an appeal to the case on Aug 19. Arulanantham said that decision was a surprise.

“(The Biden administration) has said that racial justice is one of its highest priorities. Many people in the administration have spoken forcefully against mass incarceration. And this case really brings together those two elements in just extraordinary fashion,” he said. “And so I actually thought that there was a possibility that the Biden administration might see this as an opportunity to advance two of its objectives, but maybe not.”

This law was one of the engines of the child separation policy under the Trump administration, and this case (USA v. Carrillo-Lopez) was brought by the DOJ during that last administration.

This story was updated to note that the 5th Amendment is not home the Equal Protections Clause. That Amendment instead includes the Due Process Clause, extending equal protections requirements to the federal government.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

Madelyn Beck was Boise State Public Radio's regional reporter with the Mountain West News Bureau.

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