Disparate impact comes to federal immigration law
There are two types of illegal aliens in America: those who overstay their welcome and those who sneak across our Southern border. The ones overstaying their welcome can come from anywhere in the world and, once kicked out, tend to stay out. Those sneaking across the border, a matter of proximity, are heavily Hispanic. The Washington Times caught up with and made known a district court decision from August holding that the law making it a criminal offense to re-enter the country is racist because it has a disparate impact on Hispanics and was enacted in the 1920s with racist goals in mind.
Miranda Du is the judge. She got her legal degree from U.C. Berkeley, and Obama appointed her to the federal district court in Nevada. Her rulings have consistently skewed left, and she's steeped in the language of the left. In a case involving Texas women who argued that Nevada's legal prostitution conflicted with the federal government's anti-trafficking laws, Du ruled against them but sympathized with their "lived experience." She also prevented churches from supporting the faithful during the COVID lockdowns.
Du outdid herself this past August in her ruling on 8 USC §1326, the federal law holding that illegal aliens who have already been removed once from the U.S. but who sneak back in can be criminally prosecuted. The law, enacted in the 1920s and amended frequently since then, is facially completely neutral. It's manifestly intended to keep the border from turning into a turnstile through which illegal aliens can endlessly return, no matter how many times they've been evicted from America.
The Defender Services Office Training Division of the Administration Office of the United States Courts (i.e., a government agency) wrote approvingly about Du's decision, claiming that the statute has nativist roots:
The original law criminalizing illegal reentry under 8 U.S.C. 1326 grew out of a disturbing time in history marked by the rise of eugenics, the Ku Klux Klan, and deeply nativist sentiments. See, e.g., Webinar: The Racist Origins of Illegal Reentry (and how to Challenge Them in Your Practice) (Oct. 15, 2020), by AFDs Kara Hartzler and Nora Hirozawa, available on the password protected side of fd.org here.
In effect, because Hispanics pour illegally into America, stopping them is inherently racist.
Image: Gavel and book. Piqsels.
Du held that the law is racist in intent and created a disparate impact. Therefore, she held, it violated the defendant's Due Process Rights that he was being charged with repeatedly violating American law by breaking into America. As the Defender Services explained:
Mr. Carrillo-Lopez filed a motion to dismiss his indictment, arguing that because the facts and historical evidence presented show that the original illegal reentry law was enacted with a discriminatory purpose and still has a disparate impact, § 1326 is presumptively unconstitutional under Arlington Heights. After briefing and hearings, the district court agreed with the defense. In granting the motion to dismiss, the District Court found that Mr. "Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent." The District Court also considered whether the government had shown that § 1326 would have been enacted absent discriminatory intent, and concluded that the government failed to so demonstrate. As a result, the Court held that "Section 1326 violates the Equal Protection Clause of the Fifth Amendment."
You caught, I'm sure, that Du not only writes about "lived experiences," but describes Hispanics as "Latinx," even though they hate that term. Du's so woke. She's also a pure activist.
As I noted at the start of this post, while people who overstay their visas are the most common illegal aliens, they're not the ones who break immigration laws repeatedly. That honor belongs to Hispanics. Because they violate the law the most, they are affected by it the most. That does not mean, though, that the law was intended to or does discriminate against them.
Think about how Du's reasoning applies to other scenarios. For example, Black-on-Black murder is the single biggest plague in the Black community. And sadly, Blacks commit murder in numbers disproportionate to their overall representation in the population. That means that Blacks are disproportionately likely to be arrested for murder. Under Du's reasoning, our murder laws have a disparate impact and should be ignored.
Oh, wait! That's exactly what's been happening for the past 18 months. The result? The murder rate across urban America has dramatically increased, with Blacks disproportionately affected, both as predators and prey. Sometimes a criminal law's disparate impact isn't because of racism; it's because one group — say, Hispanics illegally and repeatedly entering America — are more likely to commit an act that is reasonably denominated a crime.
The case is on appeal in the Ninth Circuit, which Trump was able to make slightly less left but which is majority-leftist. The outcome should be interesting.
To comment, you can find the MeWe post for this article here.