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Immigration and Human Rights Law Review

Abstract

Former President Trump campaigned on a promise to build a wall between the United States and Mexico. Though President Trump did not fulfill this promise, he highlighted the amount of unchecked power his administration had over immigration law through policy enactments. Throughout the centuries, various Presidents and sessions of Congress utilized this unbridled power to discriminate against migrants on the basis of race. In 1952, Congress enacted the Immigration and Nationality Act, which repealed several explicitly racist requirements but overlooked other racially charged laws from prior statutes, such as criminally punishing unlawful re-entry found in 8 U.S.C. §1326. On August 18, 2021, the United States District Court of Nevada in United States v. Carrillo-Lopez held 8 U.S.C. § 1326 violated the United States Constitution on Equal Protection grounds. This decision sparked interest by proponents and opponents alike because the court declined to give deference to the political powers in its decision. This Article agrees with the holding in Carrillo-Lopez. It offers a discussion on why courts should not be afraid to utilize the reasoning in Carrillo-Lopez because it correctly applied Equal Protection jurisprudence in the context of immigration law through a holistic approach of the Arlington Heights standard. Additionally, this article commends the encouragement of the Carrillo-Lopez decision to increase judicial review within immigration policy. It provides an introductory discussion of the plenary power doctrine and its history for actual harm towards insular minorities, like migrants. Ultimately, this article encourages more courts to adopt the approach taken in Carrillo-Lopez.

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