WASHINGTON — The Justice Department is reviewing a Nevada federal judge’s ruling that a section of U.S. immigration law is unconstitutional and discriminatory against Hispanics, a spokeswoman said Wednesday.
“The Justice Department is reviewing the matter and the acting solicitor general will decide whether to authorize an appeal,” said Nicole Navas Oxman, a Justice Department spokeswoman on international law enforcement matters.
Judge Miranda Du in Reno issued her ruling last week that concluded the law first designed nearly a century ago to stop immigration from Mexico is racist and discriminatory.
In her ruling, the judge found that Section 1326 of the immigration law, making illegal re-entry into the United States following removal or deportation a criminal felony, violated constitutional equal protection rights.
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 the 1952 revision, the Immigration and Nationality Act, was race neutral.
The plaintiff’s lawyer, Lauren Gorman, an assistant federal public defender, called on academic experts to make the case that the law violated the equal protection clause and is discriminatory. The testimony showed that Hispanics were overwhelmingly more likely to be charged with the felony crime and deported.
“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 the William S. Boyd School of Law at UNLV.
The decision to appeal the ruling is now up to the Biden administration Justice Department, specifically by acting Solicitor General Brian Fletcher, with input from the U.S. Attorney’s Office in Nevada.
Former acting Solicitor General Elizabeth Prelogar was nominated Aug. 11 by President Joe Biden to officially serve in the post. Prelogar is well-versed on the law, having worked on immigration cases in the U.S. Solicitor General’s Office.
The section of the law creating a felony offense has been a tool to combat illegal immigration by previous administrations, both Democratic and Republican.
Deportations increased significantly during the Obama and Trump administrations, when the law was a centerpiece in the “zero tolerance” policies that resulted in separations of children and parents at the Southwest border.
Other federal courts have ruled on aspects of the law, but no other judge has found it unconstitutional.
“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,” Du wrote.
The plaintiff in the Nevada case, Gustavo Carrillo-Lopez, was indicted in 2019 under the Trump administration’s “zero-tolerance” policy and the crackdown on undocumented immigrants. Carrillo-Lopez was first deported in 1999.
In finding the law unconstitutional, Du dismissed the charge against Carrillo-Lopez.
Contact Gary Martin at gmartin@reviewjournal.com. Follow @garymartindc on Twitter.