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Immigrant Rights Organizations Respond to Ninth Circuit Decision to Reverse Nevada Judge’s Watershed Ruling that Law Used to Criminalize Migration is Racist

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Posted: May. 24, 2023

May 24, 2023

Media Contacts
Arianna Rosales |
Tara Tidwell Cullen, NIJC |

Pasadena, CA - The California Ninth Circuit Court of Appeals earlier this week ruled to reverse Chief Judge Du’s landmark 2021 decision  in USA v. Carillo-Lopez, a case challenging 8 USC § 1326 – the law used to criminally prosecute and incarcerate people for reentering the United States without permission after being deported, removed, or denied admission. The lower court had found  that Congress enacted the law for overtly racist purposes, and that the government continues to use it in a discriminatory manner. 

Historians and legal experts provided extensive testimony and briefs detailing the racist history of Section 1326. They presented congressional records with evidence of the eugenics-driven origins of the law first passed in 1929, and the discriminatory motives of successive reenactments. Nonetheless, the Ninth Circuit Court of Appeals failed  to fully consider the congressional debates during which lawmakers used blatantly racial slurs when reenacting the law in the 1952 Immigration and Nationality Act (INA). The legislative history of Section 1326 shows the discriminatory motives of a law that continues to be applied disparately along racial and ethnic lines. 

For years, immigrant rights advocates, historians, federal defenders, and directly impacted communities have called for this law to be repealed, and for the government to stop prosecuting people for immigration offenses. The nearly century-old law first championed by overtly white supremacist legislators and policymakers has been used to criminally prosecute hundreds of thousands of migrants and asylum seekers, and to rip apart families seeking safety at the U.S. border. A fact sheet about the case and origins of the Section 1326 law is available here.

"We are deeply disappointed in the Ninth Circuit's decision to uphold Section 1326, a discriminatory law that continues to fuel the mass incarceration of Black and brown people, waste government resources, and tear families apart,” said Sirine Shebaya, Executive Director at the National Immigration Project. “We are even more disappointed in the Biden administration’s insistence on continuing to defend this law. Section 1326 is racist not only in its origins, but also in its current impact, as the data and legislative history clearly illustrate. Rather than continuing to defend it, the Biden administration should live up to its promise to advance racial justice by moving swiftly to end these prosecutions altogether. Meanwhile, we will continue working with our partners - federal defenders, advocates, organizers, and academics - to repeal these harmful laws and to fight for a New Way Forward for immigration.”

“The lower court decision in this case was a groundbreaking ruling that finally acknowledged the racist history and discriminatory application of immigration-related prosecutions,” said Jesse Franzblau, Senior Policy Analyst with the National Immigrant Justice Center. “The Ninth Circuit Court of Appeals decision to overturn that ruling does not detract from the extensive record presented by historians and experts, detailing the deep-seeded white supremacy embedded in the unauthorized reentry law, and its blatantly discriminatory application. The Biden administration should consider the ugly history and ongoing harm of this law, and stop prosecuting and imprisoning people simply for crossing the border without permission. Communities impacted by this law will continue to fight these discriminatory prosecutions, and Congress should take note and put an end to the unjust use of this law.” 

The Biden administration has tragically continued to rely on the use of criminal prosecutions as a punitive measure, charging over 30,000 people under Section 1326 in District Court since January 2021. Alarmingly, the administration has signaled plans to increase its use of prosecutions to administer “consequences” for people who attempt to enter the U.S. without authorization. Examining the use of Section 1326 alongside other enforcement programs illustrates that such prosecutions do not serve any rational immigration-related purpose, but instead add layers of punishment onto populations already facing devastating civil immigration penalties. The Biden administration can, and must, shift away from immigration-related prosecution and take steps to end the systemic injustices these laws have spurred.  

Section 1326 has harmed thousands of people and led to systemic inhumane treatment and rights violations. To learn more about the human impact of Sections 1325 and 1326, a stories report by the National Immigration Project highlighting trends and stories of people prosecuted for unauthorized entry and re-entry is available here.


The National Immigration Project  (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Learn more at Follow NIPNLG on Facebook, Twitter, and Instagram at @NIPNLG.

The National Immigrant Justice Center is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education. Visit and follow @NIJC on Twitter.