During the application of Donald immigration policies from Trump’s administration that have separated thousands of children from their parents on the country’s southern border, a federal public defender in San Diego decided to find new strategies to challenge a longstanding deportation law.

Kara Hartzler exposed Section 1326 of the Immigration and Nationality Act, which makes it a crime to unlawfully return to the U.S. after deportation, removal or denied admission, as racist and a violation of equal protection rights guaranteed by the Fifth Amendment.

Hartzler’s defense “became the legal framework for a never-before-seen ruling in August 2021 by Nevada U.S. District Judge Miranda Du. She struck down the law as unconstitutional and discriminatory against Latinos when she dismissed an illegal reentry charge against Mexican immigrant Gustavo Carrillo Lopez, though she didn’t block enforcement and prosecutions that haven’t stopped as the government appeals the case”, according to the Associated Press.

Du’s 43-page ruling cited much of Hartzler’s legal defense. “The record before the Court reflects that at no point has Congress confronted the racist, nativist roots of Section 1326,” the judgewrote.

Despite the ongoing battle in the 9th Circuit Court of Appeals, the Nevada case drew national attention to the little-known history of Section 1326.

According to Sirine Shebaya, executive director of the nonprofit National Immigration Project for the AP, “It really is an ill-understood law when you think about the degree to which it is based on explicitly racist and white supremacist ideology”.

“Section 1326, along with its misdemeanor counterpart Section 1325, which criminalizes unauthorized entry, was enacted by Congress in 1952. But the law’s origins can be traced back a century to the 1920s — a decade described by UCLA history professor and leading Section 1326 researcher Kelly Lytle Hernandez as ‘a time when the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals preached the science of eugenics.”

With Congress’ vision in the 1920s on legislation that would block "undesirable" immigration, the National Origins Act of 1924 was enacted, setting a limit on how many immigrants could enter the U.S. under a system that would reserve 96% of vacancies for European immigrants and included a total ban on Asian immigrants.

“Exempt from that system, however, were immigrants from the Western Hemisphere, including Mexico. Hernandez, who was called as an expert witness in the Nevada case, said the exception came as a compromise between nativist lawmakers and employers who had come to rely heavily on cheap labor from Mexico”, according to the same publication.

But before the decade’s end, South Carolina Sen. Coleman Livingston Blease would orchestrate a new deal with employers that led to the Undesirable Aliens Act of 1929. Under this new law, unauthorized entry into the U.S. became illegal, allowing Congress to limit immigration from Mexico without implementing an outright ban.

“Nearly a century later, the Justice Department has conceded that the 1929 law was motivated by racism. But in oral arguments in early December before the 9th Circuit, an attorney for the U.S. government argued later revisions — like Section 1326 — made it constitutional”.

Du’s ruling, however, points out that the 1952 revision establishing Section 1326 had adopted language “word for word” from the 1929 legislation, and since then, penalties — that range from prison time to permanent deportation — have stiffened at least five times. […] Between October 2021 and September this year, the federal government’s fiscal year, 96% of people charged under Section 1326 were from Mexico, Central America, South America and the Spanish-speaking Caribbean islands”, the publication states.

This fiscal year, for example, the Justice Department under the Biden administration prosecuted 13,670 cases under Section 1326. The vast majority of those defendants were charged in border states, including Arizona, New Mexico and Texas.

There is no deadline for the 9th Circuit to issue its ruling on the Justice Department’s appeal.

“At the same time, some of the thousands of children separated from their parents during the Trump administration still have not been reunited”, as stated AP news.