(CN) - A Fourth Circuit panel will decide whether the federal law that criminalizes illegal reentries into the United States violates the Fifth Amendment.
The law has a discriminatory intent because it was once built on racism against Latin American immigrants, attorney Mireille Clough, representing six defendants who were all convicted of illegal re-entry in a North Carolina federal court, argued.
In this case, U.S. v. Sanchez-Garcia, multiple experts previously testified that the 1929 law that first made it illegal to re-enter the United States after being deported was conceived at a time when immigration law was influenced by overt racism, and that legislators involved were motivated by racial animus, according to the defendants' brief.
The lower court ultimately didn't dispute that point, per the brief, but ruled that the law has been reenacted multiple times since then, and that the intent of racial animus had since been weakened or dissolved in favor of other, more legitimate factors.
But Clough told the Fourth Circuit panel Friday that the specific section of law on illegal reentry - Section 1326 of the Immigration and Nationality Act - has seen only minor revisions over the years. She further argued that the law's racial animus has never been confronted.
"Ever since its enactment, Section 1326's enforcement has had a disparate impact on Mexican and Latin American immigrants and their families," Clough said. "Those same immigrants and families have been impacted by the racial animus that was a motivating factor in 1326's enactment in 1929, its reenactment in 1952 and in its most recent versions."
When asked by U.S. Circuit Judge Steven Agee, a George W. Bush appointee, if three other circuit courts were wrong when they ruled against this argument in other cases, Clough insisted that they were. Among other things in those cases, the 1952 law was treated like a new law but Clough argued it re-enacted the section from the 1929 law.
"What we have here is a law that is still tethered to that racial animus, that has remained unconfronted, undiscussed," Clough said.
U.S. Circuit Judge Pamela Harris, a Barack Obama appointee, was lukewarm to that argument. She noted that the Immigration and Nationality Act of 1952 represented a major overhaul of the country's immigration system. She was skeptical that the act could be considered only a reenactment of a particular enforcement statute of 1929.
That was the U.S. government's position on the matter, too.
"The 1952 was not the reenactment," Assistant U.S. Attorney Morgan Reece told the panel. "It repealed the law of the 1920s and it enacted an entirely new statutory scheme, the (Immigration and Nationality Act of 1952)."
But there is some evidence of racial animus behind the passage of the 1952 law, too, Clough argued. The brief points to several comments made from several legislators who sponsored at the time that used problematic reasoning or racial slurs.
Additionally, she argued that later enactments of the law never explicitly repudiated the racial animus of the original 1929 statute.
Reece, on the other hand, argued that such a need to "purge the taint" was unnecessary. But she also noted that the comments of individual legislators are typically not regarded as reliable measures of Congressional intent. And in this case, they weren't relevant to the specific statute on illegal reentries.
"These comments, certainly reprehensible, they weren't about this particular provision," Reece said.
U.S. Circuit Judge Albert Diaz, also an Obama appointee, however, pushed back on that.
"They're provisions that are all related to immigration and the impact of immigration of certain groups of people," Diaz said. "Are we really supposed to just close our eyes to what's happening there?"
But Reece said the case was about context. There were many other viewpoints at the time, and in opposing immigration proposals offered at the time, the language of this section was still included.
"I think when you look at the balance of the factors here, it just doesn't go to show that the legislature as a whole had a substantial or motivating factor behind it," Reece said.
Both Reese and Clough declined requests for comment from Courthouse News.
Source: Courthouse News Service