Federal courts are now wrestling with the underpinnings of an immigration law provision and whether or not it is racist.

A federal judge in Nevada ruled that Section 1326, a law making it a felony to reenter the United States after being deported, is unconstitutional.

The Department of Justice has appealed the case, now sending it to the 9th U.S. Circuit Court of Appeals.


Judge Miranda Du, an Obama appointee, issued the original order in August saying the law was passed with racist antecedents and discriminatory intent against Latinos, violating the Equal Protection Clause.

“The law has a disparate impact on Latinx persons, and the government fails to show that [the statute] would have been enacted absent racial animus,” Du wrote.

The Justice Department, in its appeal briefs, wrote that Du disregarded “the obvious alternative explanation that [the number of Latinos] are attributable to geography and the high percentage of such individuals among the population of noncitizens unlawfully in the United States.”

“Assuming that the 9th Circuit accepts the equal protection argument, the case would face long odds in the Supreme Court,” Freeman Halle, with the Law Journal for Social Justice, wrote. “While Judge Du’s opinion is inviting some much-needed introspection on the topic of U.S. immigration policy, lasting relief for [Section 1326] defendants will likely require legislative action.”

Unlawful entry and reentry into the U.S. are some of the most frequently prosecuted crimes in federal courts.

“If we are trying to uproot systemic racism, that means we have to consciously understand what motivated a law’s original enactment, and then make the conscious decision whether we want to change it or whether we want to continue it,” Ahilan Arulanantham, co-director of the Immigration Law and Policy Center at UCLA School of Law, told the Washington Times.


Under the current U.S. statute, illegal reentry carries with it a fine and up to two years in federal prison. Harsher penalties are possible for those who are convicted of felonies or three or more violent or drug-related misdemeanors.

Section 1326 discussions come as President Joe Biden has struggled to contain illegal crossings at the southern border, leading to reports of inter-White House divisions over how to handle the crisis. Biden faces low approval numbers for his handling of immigration issues.

The Biden administration has permitted border officials to resume construction on several gaps in the Trump-era border wall along the southern U.S. Biden halted wall construction after taking office in January amid opposition from some in his party.