68 F.4th 1133
9th Cir.2023Background
- Gustavo Carrillo-Lopez, a Mexican national, was indicted under 8 U.S.C. § 1326 for illegal reentry after prior removals; the district court dismissed the indictment, holding § 1326 facially invalid under the Fifth Amendment’s equal protection component.
- The district court found that § 1326 was enacted with discriminatory purpose against Mexicans and other Central/South Americans and that the government did not prove the law would have been enacted absent that motive.
- On appeal the Ninth Circuit applied the Arlington Heights framework for discriminatory-purpose claims to assess a facially neutral immigration statute.
- The panel examined the 1952 INA legislative history (including the 925‑page Senate Report), the 1929 Act, DOJ commentary (use of the term “wetback” in a quoted report), and evidence of disparate impact on Latino defendants.
- The court emphasized the strong presumption of legislative good faith, the limited probative value of predecessor‑legislatures’ intent, and geographic explanations for any disparate impact; it concluded Carrillo‑Lopez failed to prove discriminatory intent and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1326 violates the Fifth Amendment by being enacted with discriminatory purpose against Mexicans/Latinos | § 1326 is facially neutral but was motivated in part by animus toward Mexicans/Central‑and‑South Americans (relying on 1952 legislative history, links to 1929 Act, DOJ language, and disparate impact) | Plaintiff must prove discriminatory purpose under Arlington Heights; the INA/§1326 is facially neutral, later Congress had different composition, and government has legitimate enforcement reasons | Reversed: plaintiff failed to prove discriminatory purpose; district court clearly erred |
| Whether the 1929 Act’s racist origins taint the 1952 INA / § 1326 (reenactment/continuity argument) | Some legislators served in 1929 and 1952; silence or lack of repudiation shows continuity of discriminatory intent | Subsequent legislature’s intent is controlling; Congress turnover was substantial; no duty to repudiate predecessor; INA materially reformed prior law | Rejected taint/reenactment theory; 1929 history not probative of 1952 intent |
| Whether disparate impact on Mexicans/Latinos suffices to show discriminatory motive | High percentages of Hispanic prosecutions and border apprehension data show disparate impact and knowledge by Congress | Disparate impact alone is generally inadequate; geography explains higher rates for those adjacent to the border; much impact evidence is temporally remote | Disparate impact insufficient without contemporaneous historical evidence of discriminatory purpose |
| What standard governs equal‑protection review of immigration statutes (deferential vs. usual scrutiny) | Implicitly: heightened review may apply to federal equal protection claims | Government urged immigration‑sensitive, more deferential review | Court declined to decide special immigration standard; applied Arlington Heights and found claim fails even under that test |
Key Cases Cited
- Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (U.S. 1977) (framework for proving discriminatory purpose in facially neutral laws)
- Abbott v. Perez, 138 S. Ct. 2305 (U.S. 2018) (presumption of legislative good faith; intent of the enacting legislature controls)
- Washington v. Davis, 426 U.S. 229 (U.S. 1976) (Fifth Amendment contains equal protection component; disparate impact not dispositive)
- Pers. Adm’r v. Feeney, 442 U.S. 256 (U.S. 1979) (discriminatory purpose requires more than awareness of foreseeable effects)
- Hunter v. Underwood, 471 U.S. 222 (U.S. 1985) (plaintiff must show discrimination was a substantial or motivating factor)
- United States v. Mendoza‑Lopez, 481 U.S. 828 (U.S. 1987) (background on § 1326 and collateral‑challenge consequences)
- Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (U.S. 2020) (applied Arlington Heights analysis to immigration context)
- McCleskey v. Kemp, 481 U.S. 279 (U.S. 1987) (limited probative value of non‑contemporaneous evidence of disproportionate impact)
- Miller v. Johnson, 515 U.S. 900 (U.S. 1995) (reiterating presumption of legislative good faith)
- Fiallo v. Bell, 430 U.S. 787 (U.S. 1977) (recognition of broad deference to political branches on immigration matters)