Judge rules felony deportation law unconstitutional. Yes, seriously

AP Photo/Brennan Linsley, File

This is probably the latest example of how, if you shop around long enough, you can find a judge to rule however you like on just about anything. The case in question centers around Gustavo Carrillo-Lopez, a Mexican illegal alien who had been detained and deported multiple times starting in 1999, taking up residence in Nevada. As a repeat offender, Carrillo-Lopez was convicted under Section 1326 of a felony violation of our immigration laws. Unable to mount any sort of defense against the obvious fact that he was in the country illegally and had violated the law, his attorney challenged the constitutionality of Section 1326 based on (wait for it…) racism. And this week they were able to convince U.S. District Judge Miranda Du, an Obama appointee in Nevada, to rule in his favor. This is almost too tiresome for words. (Associated Press)

In a court ruling with potentially broad implications for U.S. immigration cases, a federal judge in Nevada found that a criminal law that dates to 1929 and makes it a felony for a person who has been deported to return to the United States is unconstitutional.

U.S. District Judge Miranda Du in Reno, in an order issued Wednesday, found the law widely known as Section 1326 is based on “racist, nativist roots” and discriminates against Mexican and Latinx people in violation of the equal protection clause of the Fifth Amendment.

“Anybody who works in federal courts knows the statute,” Franny Forsman, retired longtime chief of the Federal Public Defender’s Office in Nevada, said Thursday. “There really are a large number of cases that have been brought over the years under that section. They’re mostly public defender cases.”

If there is an ounce of sanity left in the world, this bizarre ruling will be struck down on appeal if for no other reason than the nonsensical nature of the wording of Judge Du’s order. At no point does she dispute the right of the federal government to regulate immigration and control the flow of traffic over our borders. Nor does she deny that people violating our immigration laws may be held accountable.

Du’s entire rationale for granting the plaintiff’s request is that Section 1326 disproportionately affects Mexicans and Hispanic people of Central and South American descent. In other words… it’s racist. Unfortunately for the judge and the defendant, a quick look at Title 8 reveals that this finding is malarkey. This section of federal law dates back to the Undesirable Aliens Act of 1929. It has been revisited by both Congress and the courts (and strengthened in its penalties, by the way) multiple times.

The law makes no mention of the racial profile or nation of origin of the accused. There are roughly 200 other countries on the planet, with residents of every race, religion, and gender. And every one of those people is subject to this statute, whether they arrived illegally on foot or by boat or on a plane. If we ever locate some extraterrestrials crawling out of a crashed UFO in Nevada, a compelling argument could be made that we could prosecute them under Section 1326 as well. (Assuming their death ray is in the shop for repairs.)

The judge’s only defense is to note that “the government does not dispute that Section 1326 bears more heavily on Mexican and Latinx individuals.” Pardon the casual language, but… ya think? Mexico is one of only two countries we share a land border with and not nearly as many people are trying to flee Canada for some reason. Also, swimming across the Atlantic or the Pacific is notoriously difficult.

The government already made that point to the judge, saying “the stated impact is a product of geography, not discrimination, and that the statistics are rather a feature of Mexico’s proximity to the United States, the history of Mexican employment patterns and the socio-political and economic factors that drive migration.” This explanation should be so obvious that it shouldn’t have needed to be explained, yet Judge Du wrote, “the court is not persuaded.”

I realize that the world went a bit wonky in 2020 and insanity has become more of a feature of American society than a bug. But even with these chaotic times as the setting, we can’t have gone this crazy. This ruling needs to be booted and that judge should face a very serious competency review.