This month an appeals court in California heard arguments for a case challenging an old immigration law that makes entering the U.S. after being deported a felony.

Section 1326 is a criminal statute originally part of the Undesirable Aliens Act of 1929. A revised version was part of the Immigration and Nationality Act of the 1950s. 

The law has been widely used — and its penalties stiffed — since then. It was used in some cases that separated families under the Trump administration’s zero tolerance border policy, and it's still a regular fixture in deportation proceedings now.

But in August 2021, a federal court in Nevada ruled the law was unconstitutional. U.S. District Judge Miranda Du said the law has “racist, nativist roots” that discriminate against Latinos. The case began with a suit brought by Gustavo Carrillo Lopez, a Mexican immigrant who had been indicted under Section 1326. Du's ruling sided with his lawyers, who argued the indictment violated his Fifth Amendment rights

"If the statute is found to be unconstitutional nationwide, it could have a massive impact on criminal prosecutions along the border states," said Dan Kowalski, editor-in-chief of the legal publication Bender’s Immigration Bulletin.

Government lawyers are appealing the ruling before the 9th U.S. Circuit Court of Appeals. Though they agreed the original law had racist origins, they argued its revisions had made it constitutional. 

Kowalski expects the case to head to the Supreme Court. That process could take months of even years to complete, he says, and Congress is likely to create a new, similar law. Still, he says the decision out of Nevada was significant. 

"Whatever happens ultimately, both in the civil statutes of the Immigration and Nationality Act and the criminal statutes, it's important for the general public to understand that so much of our civil and criminal laws regarding immigration are fundamentally based in racism," he said. 

EDITOR'S NOTE: The story has been updated to correct the spelling of Dan Kowalski's name.