Appeal likely in Nevada immigration law ruling

WASHINGTON — A Nevada federal court ruling that held a deportation law unconstitutional is likely headed for appellate scrutiny because of the broad implications it would have on immigration cases, legal experts and advocates said Thursday.

But even with further legal review, District Judge Miranda Du’s ruling this week in Reno has focused attention on the troubling racist intent of the law designed nearly a century ago to stop immigration from Mexico.

In her ruling, the judge found that Section 1326 of the immigration law — which makes illegal reentry into the United States following a deportation a felony — violates constitutional equal protection guarantees.

She also said the law discriminates against Hispanics, particularly Mexicans, and is steeped in racism and nativism.

The U.S. attorney’s office in Nevada conceded the racial intent of the 1929 law, the Undesirable Aliens Act, but argued that a 1952 revision, the Immigration and Nationality Act, was neutral about race.

Du was not convinced.

The plaintiff’s lawyer, Lauren Gorman, an assistant federal public defender, called on academic experts to make the case that the law violated equal protection and continues to be discriminatory.

“The plaintiff showed discriminatory intent and (the Department of Justice) did not carry its burden to overcome that,” said Carl Tobias, a University of Richmond law professor and a founding faculty member of Boyd Law School at the University of Nevada Las Vegas.

The decision to appeal falls to Justice Department officials in the Biden administration, with input from the U.S. attorney’s office in Nevada. Requests for comment to both were not returned.

Appeal expected

UNLV law professor and immigration lawyer Michael Kagan said on Twitter the outcome is a real credit to the federal public defender and the legal community involved in immigration issues.

Because of the broad implications of the ruling on a law that’s been regularly enforced by presidential administrations of both major political parties, several experts expect a review by the 9th U.S. Circuit Court of Appeals.

Tobias said the government’s argument that the law was amended failed to sway Du, but that only she has found it unconstitutional although it has been in effect for decades.

Kagan said Judge Du acknowledges that “other district courts have seen the issues in this case differently.”

“I doubt this is the last word,” Kagan said on Twitter.

Immigration advocacy groups and those advocating more restrictions are watching closely, but the only consensus is that it’s far from over.

Nevadans react

The office of Sen. Catherine Cortez Masto, D-Nev., a former Nevada attorney general who supports reform of current immigration laws, sounded a cautious tone.

“The senator is reviewing the ruling and will continue to monitor this case as litigation proceeds,” said Josh Marcus-Blank, a spokesman for Cortez Masto.

Du’s ruling, however, was applauded by Sen. Jacky Rosen, D-Nev., who also supports comprehensive immigration reform.

“Senator Rosen believes that this decision is a step forward because our immigration policies should be fair and unbiased,” said Katherine Schneider, a spokeswoman.

Revisions possible

Immigration laws are already in the spotlight.

Section 1326 and Section 1325, which makes it a criminal offense to enter the country without authorization, are just parts of national immigration law that advocates for immigrants and those who seek tighter restrictions agree need to be updated.

Congress is rewriting some immigration law, but the changes are limited in scope. They would provide a path to citizenship for Dreamers, Temporary Protected Status card holders and agricultural workers.

Those changes are included in the $3.5 trillion budget resolution passed by the Senate last week on a strict party-line vote, 50-49. The budget resolution is now before the House for consideration.

President Joe Biden supports the changes and has called for comprehensive immigration reform legislation, a difficult task in the equally divided Senate.

The immigration code at the heart of the ruling in Nevada is not addressed in the budget resolution that passed in the Senate.

But the racist intent of Sections 1325 and 1326 were front and center during a 2019 debate among Democratic presidential candidates.

During the debate, Julian Castro, a former Housing secretary and San Antonio mayor, used the immigration code to underscore the racial targeting of Hispanics and other minorities.

He brought it up again on Twitter immediately after the Nevada court ruling.

“Like Section 1325, this law (Section1326) has an incredibly racist history,” Castro said. “I doubt the Biden DOJ will want to defend it in the appellate court.”

Linchpins of enforcement

Still, the laws are the linchpin of immigration enforcement. Deportations increased during the Obama and Trump administrations. Arrests also have increased, causing a backlog in immigration courts, particularly in Southwest and states along the Mexico border.

Since 2005, prosecutions for unauthorized border crossings have soared, and in 2017 and 2018, they accounted for 57 percent of federal criminal case filings nationwide, according to Ruthie Epstein, deputy director of immigration policy for the American Civil Liberties Union.

Epstein, writing after the Democratic presidential debate in 2019, noted that the immigration code was used as the justification for the Trump administration’s policies that separated children from parents at the border.

In Nevada, Gustavo Carrillo-Lopez was indicted in 2019 under the Trump administration’s “zero-tolerance” policy, a crackdown on undocumented immigrants. Carrillo-Lopez was first deported in 1999.

Gorman’s challenge of Section 1326, its racist origins and violation of equal protection rights, convinced Du, who wrote in her ruling that some language in the 1952 version of the immigration code was taken word for word from the 1929 law that specifically targeted Mexican nationals.

“The court will not ignore that Congress in 1952 adopted the language of Section 1326 without substantially changing the law and without debate or discussion of the invidious racism that motivated the Act of 1929, only to make it more punitive,” wrote Du, appointed to the bench by President Barack Obama.

In finding the law unconstitutional, Du dismissed the charge against Carrillo-Lopez.

Contact Gary Martin at gmartin@reviewjournal.com. Follow @garymartindc on Twitter.