555 F.Supp.3d 996
D. Nev.2021Background
- Defendant Gustavo Carrillo-Lopez was indicted (8 U.S.C. § 1326) and moved to dismiss alleging Section 1326 violates the Fifth Amendment equal protection guarantee under the Arlington Heights framework.
- The Court held oral argument and an evidentiary hearing with expert testimony (Professors Benjamin Gonzalez O’Brien and Kelly Lytle Hernández).
- The government argued a deferential standard applies to immigration laws (plenary executive/congressional power) and that any prior taint was cured by reenactment and later amendments.
- Defendant argued Section 1326 both disparately impacts Latinx/Mexican persons and was motivated, at least in part, by racial animus traceable to the 1929 Undesirable Aliens Act and the 1952 INA reenactment.
- The Court applied Arlington Heights, found disparate impact and discriminatory intent in the 1929 enactment and sufficient contemporaneous evidence tying the 1952 reenactment to animus (including congressional silence, President Truman’s veto, DOJ correspondence using the slur “wetback,” and the contemporaneous “Wetback Bill”), and concluded the government failed to show the statute would have been enacted absent that purpose.
- The Court granted the motion and dismissed the indictment for violation of the Equal Protection component of the Fifth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable standard of review | Arlington Heights applies to congressional criminal immigration laws | Government: immigration plenary power warrants deferential/rational-basis review | Court: Arlington Heights applies (heightened inquiry), not the deferential Trump/rational-basis approach |
| Disparate impact | §1326 bears more heavily on Mexican/Latinx people (border apprehension/prosecution data and enforcement patterns) | Government: disparity is geographic/proportional (Mexico’s proximity), not evidence of discrimination | Held: §1326 has a disparate impact on Latinx persons (sufficient under Arlington Heights) |
| Discriminatory intent in enactment | 1929 law enacted with racial animus; 1952 reenactment adopted near-identical language and was motivated at least in part by similar animus (evidence: legislative history, DOJ letter using epithet, Truman veto, Wetback Bill, congressional silence) | Government: prior taint does not control; reenactment/ later amendments cleanse prior animus (cites Abbott and other cases) | Held: evidence (historical background + contemporaneous 1952 evidence) shows discriminatory intent was a motivating factor for 1929 and the 1952 reenactment of §1326 |
| Causation / Government’s rebuttal burden | N/A (defendant met initial burden) | Government must show the statute would have been enacted absent impermissible purpose (offers nondiscriminatory rationales: economic protection, national security, foreign relations; points to repeated reenactments) | Held: government failed to prove the same decision would have resulted absent discriminatory purpose; nondiscriminatory motives were not shown to be independent of racial animus; §1326 invalid under Arlington Heights |
Key Cases Cited
- Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) (framework for proving discriminatory purpose)
- Wong Wing v. United States, 163 U.S. 228 (1896) (constitutional protections for liberty in criminal proceedings, including for aliens)
- Loving v. Virginia, 388 U.S. 1 (1967) (facial discrimination invalid under Equal Protection)
- Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discriminatory enforcement of facially neutral laws)
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (deference in certain immigration contexts argued by government)
- Fiallo v. Bell, 430 U.S. 787 (1977) (immigration classifications and deference cited by government)
- Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., 140 S. Ct. 1891 (2020) (discussing applicability of Arlington Heights in immigration challenges)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (deferential review in national-security-focused executive immigration action)
- Abbott v. Perez, 138 S. Ct. 2305 (2018) (presumption of legislative good faith in reenactment analyzed)
- Hunter v. Underwood, 471 U.S. 222 (1985) (prior discriminatory purpose may taint later enactments where not meaningfully changed)
- McCleskey v. Kemp, 481 U.S. 279 (1987) (limits on probative value of distant historical discrimination)
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (contextual authority cited regarding reliance on historical evidence)
- Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246 (2020) (discussion of tethering reenacted laws to prior bias)
- United States v. Hernandez-Guerrero, 147 F.3d 1075 (9th Cir. 1998) (noting §1326 is within Congress’s immigration power)
- United States v. Ruiz-Chairez, 493 F.3d 1089 (9th Cir. 2007) (rational-basis analysis in alienage contexts cited by government)
- United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995) (alienage classification discussion cited by government)