“We appreciate that you recently filed a notice of appeal, preserving your ability to defend the law on appeal. We now urge you to follow through by defending the law before the Ninth Circuit and (if necessary) the Supreme Court,” the letter from the attorneys general said. “We ask that you confirm expeditiously DOJ’s intent to do so.
Section 1326 makes it illegal for someone who has been deported or denied entry to the U.S. to reenter, punishable by fines and possible jail time.
Federal Judge Miranda Du was ruling in a case concerning someone charged with illegal reentry who had been found in the country illegally in 2019 after having been deported multiple times. She accepted the arguments from the defense that the law is racially motivated and discriminatory.
“Because [the defendant] has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus x… the court will grant the motion,” the ruling said.
The case cited Border Patrol data that over 97% of people apprehended at the U.S.-Mexico border in 2000 were of Mexican descent, and 87% in 2010. The government did not dispute disparate impact, but instead attributed it to geography and proportionality – noting that Mexico borders the U.S. – as well as the history of Mexican employment issues and other factors.
The government also argued that it makes sense that Mexican citizens make up a high percentage of illegal entry defendants “given the suggestion that they made up a disproportionately high percentage of the overall illegal alien population.”
“The court is not persuaded,” Du wrote.
Instead, Du accepted the argument that the legislative history shows that racism and eugenics were motivating factors in the passage of legislation in 1929, which formed the basis for the 1952 legislation. She also said there has “been no attempt at any point to grapple with the racist history of Section 1326 or remove its influence on the legislation.”
As a consequence, the judge ruled that the law violated the equal protection clause of the Fifth Amendment, and therefore threw out the indictment.
The attorneys general cited the ongoing crisis at the border – including comments by officials that the situation is “unsustainable” — and warned that if the DOJ did not act on appeal, then it would only get worse, calling a failure to appeal “an announcement that would, in effect, tell already-deported aliens that they are free to try again.”
“Indeed acquiescing in the district court’s opinion would be tantamount to announcing legalization of illegal re-entry,” they write.
They note that Garland’s DOJ has filed a notice of intent to appeal, but said they have reason to worry considering what they see as a “surrender” by the administration at the border.
“The States should not have to worry about the administration doing its job and defending federal law. But, given this administration’s habit of policymaking through the expedient of strategic surrender, the States have reason to fear.”