Ninth Circuit Holds Statute Punishing Illegal Re-Entry is Race Neutral
FAIR Take | May 2023
Reversing a decision by a Nevada District Court, The Ninth Circuit Court of Appeals unanimously held that the federal statute that criminalizes illegal re-entry is constitutional. The decision, issued on May 22, also found that the criminal re-entry law is not discriminatory.
Federal law has two specific statutes that establish criminal penalties for aliens who enter the U.S. without permission. Section 1325 of Title 8 makes it a misdemeanor: (1) to enter the U.S. without proper inspection at a port of entry; or (2) to enter the U.S. between ports of entry, thereby avoiding examination or inspection by immigration officials. Section 1326 of Title 8 – the statute in question here –makes it a felony for aliens who have been deported to subsequently re-enter the U.S. illegally.
The challenge to Section 1326 was before the Ninth Circuit Court of Appeals on appeal from an unprecedented decision by the Nevada District Court. In that decision, Judge Miranda Du held that because Section 1326 was enacted with a discriminatory purpose and it disproportionately impacted “Mexican and Latinx” individuals, it violated the plaintiff’s constitutional rights. According to a Department of Justice Attorney, the District Court was the only one in the country to find that the statute was unconstitutional under equal protection principles.
The Ninth Circuit, fortunately, rejected this argument and found that the language in Section 1326 was neutral with respect to race. In addition, the Appeals Court determined the District Court erred when it relied on the fact that Mexicans and Central/South Americans were impacted more than other races without showing that racial animus was the motivating factor in the passage of the statute.
In making its ruling, the Ninth Circuit agreed with the Immigration Reform Law Institute (IRLI), FAIR’s legal arm, which filed an amicus brief in the case. In response to the decision issued by the Court, IRLI Executive Director Dale Wilcox said, “What is most remarkable about this case is not that the Ninth Circuit unanimously upheld the criminal reentry law, but that a federal district court had been willing to perform such clumsy mental gymnastics in order to strike it down.” He continued, “We are pleased the Ninth Circuit saw through this politically-motivated assault on a necessary law, and roundly rejected it.”
However, this issue is far from settled with the open-borders advocates. Immediately after the Ninth Circuit Court of Appeals decision was issued, Sirine Shebaya, Executive Director of the National Immigration Project, said, “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.”
Khaled Alrabe, a senior staff attorney at the National Immigration Project, indicated there are more cases to come. He said, “We’ll continue to work with our partners, advocates, organizers and, of course, the federal defenders to repeal and rid ourselves of these racist laws.”
With the ink not even dry on the Ninth Circuit decision, a panel of judges for the 3rd Circuit Court of Appeals on the U.S. Virgin Islands is set to hear a similar case challenging Section 1326 as racist and unconstitutional.