"Wetback Act": Law making it felony for deported person to come back to U.S. ruled unconstitutional and discriminatory

Las Vegas — 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."

Section 1326 of the Immigration and Nationality Act makes it a crime for a person to enter the U.S. if they have been denied admission, deported or removed. It was enacted in 1952 using language from the Undesirable Aliens Act passed by Congress in 1929. Penalties were stiffened five times between 1988 and 1996 to increase its deterrent value.

Forsman said she expected the government will appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.

But Julian Castro, secretary of Housing and Urban Development in the Obama administration, tweeted that he doubted the Justice Department would want to defend a law with "an incredibly racist history."

Acting U.S. Attorney Christopher Chiou and an aide did not immediately respond to messages about the ruling.

Forsman called Du's order groundbreaking for its thoroughness. Du, a Vietnamese immigrant, was nominated to the federal bench by President Barack Obama and sworn in in 2012.

"I think it will have implications because it's going to be difficult to get around her reasoning," Forsman said of the court order. "It's a little hard to get around a statute that was called the 'Wetback Act' by the people enacting it." The derogatory term often refers to Mexican migrants who have entered the country illegally, but it's also used to disparage all Hispanics.

Du said she considered written and oral arguments and expert testimony about the legislative history of the law from professors Benjamin Gonzalez O'Brien of San Diego State University and Kelly Lytle Hernández of the University of California, Los Angeles.

"Importantly, the government does not dispute that Section 1326 bears more heavily on Mexican and Latinx individuals," the judge said in her 43-page order dismissing the June 2020 criminal indictment of Gustavo Carrillo-Lopez.

Carrillo-Lopez was arrested in Nevada in 2019 after having been deported in 1999 and again in 2012, according to prosecutors. His federal public defender, Lauren Gorman in Reno, did not immediately respond Thursday to an email.

The judge said she saw no publicly available data about the national origin of people prosecuted under Section 1326, but cited U.S. Border Patrol statistics showing that more than 97% of people apprehended at the border in 2000 were of Mexican decent, 86% in 2005, and 87% in 2010.

"The government argues that 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," Du wrote. "The court is not persuaded."