The US Court of Appeals for the Ninth Circuit ruled Monday that US immigration law regarding the reentry of migrants who have already once been removed from the US is “facially neutral as to race,” overturning a lower court’s decision. US officials first brought charges in a Nevada court against Gustavo Carrillo-Lopez under 8 USC § 1326. A lower court judge threw out the case on the grounds that § 1326 violated the US Constitution’s Fifth Amendment protection against discrimination on the basis of race.
The court found that, based on the existing standard for evaluating equal protection claims, Carrillo-Lopez failed to carry his burden in proving that § 1326 discriminated against Mexicans and other Central and South Americans. The court also declined “to address whether immigration laws,” such as § 1326, “should be evaluated through a more deferential framework.”
The court dismissed the lower court’s reliance on congressional history surrounding the bill that passed § 1326 into law. The court also found that “evidence that legislation had a disproportionate impact on an identifiable group is generally not adequate to show a discriminatory motive.” The court found that § 1326’s disproportionate impact on Mexicans, Central and South Americans was “highly attenuated.”
In August 2021, a lower federal court in Nevada dismissed US immigration officials’ charge of illegal reentry against Carrillo-Lopez on the basis that § 1326 was rooted in racism and nativism. Specifically, the court found that § 1326 was “facially invalid” because it violated the Fifth Amendment’s equal protection clause. The court identified Mexicans, Central and South Americans as targeted groups under US officials’ enforcement of § 1326. The decision was a victory for immigration advocates, who viewed § 1326 as being at the heart of family separation policies, which have plagued the US’s southern border for years.
The ruling comes amid a change in immigration policies and increased scrutiny from human rights organizations along the US’s southern border. Earlier this month, a Trump-era immigration policy–known as Title 42–expired. With its expiration, the US has defaulted to enforcement of Title 8 and a new Biden administration rule, meaning US border officials are required to remove individuals who illegally cross into the US without a legal basis to remain. Those who are processed and removed under Title 8 face a minimum five-year ban from reentry and potential criminal prosecution if they attempt to illegally reenter the US. The prosecutions for reentry rely upon § 1326, which was at the heart of the court’s Monday ruling.
