UNITED STATES OF AMERICA, Plaintiff-Appellant, v. GUSTAVO CARRILLO-LOPEZ, Defendant-Appellee.
No. 21-10233
United States Court of Appeals, Ninth Circuit
Argued and Submitted December 8, 2022
D.C. Nos. 3:20-cr-00026-MMD-WGC-1; 3:20-cr-00026-MMD-WGC
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. Opinion by Judge Ikuta
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Appeal from the United States District Court for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Pasadena, California
OPINION
SUMMARY*
Criminal Law
In a case in which the government charged Gustavo Carrillo-Lopez, a citizen of Mexico, with illegally reentering the United States following prior removal in violation of
Carrillo-Lopez asserted that
Because Carrillo-Lopez‘s equal protection challenge fails even under the usual test for assessing such claims set forth in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977), the panel declined to address whether immigration laws should be evaluated through a more deferential framework.
As drafted,
Because the most important evidence of legislative intent is the relevant historical evidence, the panel started with the history of
The panel then addressed the legislative history of a prior immigration law, the Act of March 4, 1929 (“the 1929 Act“), which the parties did not dispute was motivated in part by racial animus against Mexicans and other Central and South Americans. The panel rejected Carrillo-Lopez‘s arguments, with which the district court largely agreed, that (1) the discriminatory purpose motivating the 1929 Act tainted the INA and
In addition to the legislative history, Carrillo-Lopez argued that
The panel concluded that the district court clearly erred in its finding that Congress‘s enactment of
The panel concluded that Carrillo-Lopez did not meet his burden to prove that Congress enacted
COUNSEL
Scott A.C. Meisler (argued), Attorney; Lisa H. Miller, Deputy Assistant Attorney General; Kenneth A. Polite Jr., Assistant Attorney General; Appellate Section, Criminal Division, United States Department of Justice; Washington, D.C.; Peter H. Walkingshaw and Robert L. Ellman, Assistant United States Attorneys; Elizabeth O. White, Appellate Chief; Jason M. Frierson, United States Attorney for the District of Nevada; Reno, Nevada; for Plaintiff-Appellant.
Erwin Chemerinsky (argued), UC Berkeley School of Law, Berkeley, California; Lauren Gorman, Ellesse Henderson, Amy B. Cleary, and Wendi L. Overmyer, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender of the District of Nevada; Federal Public Defenders’ Office; Las Vegas, Nevada; for Defendant-Appellee.
Christopher J. Hajec, Center for Individual Rights, Washington, D.C.; Gina M. D‘Andrea, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.
Philip L. Torrey, Attorney; Rachel Landry, Certified Law Student; Harvard Law School Immigration and Refugee Clinical Program; Cambridge, Massachusetts; for Amicus Curiae Dr. S. Deborah Kang.
Ann Garcia and Khaled Alrabe, National Immigration Project of the National Lawyers Guild, Washington, D.C.; Sarah Thompson, National Immigrant Justice Center, San Diego, California; for Amici Curiae Legal Service Providers and Immigrant Rights Organizations.
Max S. Wolson, National Immigration Law Center, Washington, D.C.; Nicholas David Espiritu, National Immigration Law Center, Los Angeles, California; Lourdes Rosado, Andrew Case, and Nathalia Varela, Latinojustice PRLDEF, New York, New York; for Amici Curiae Basic Legal Equality, Justice Strategies, Latinojustice PRLDEF, Legal Aid Justice Center, Massachusetts Law Reform Institute, National Immigration Law Center, and Office of the Marin County Public Defender.
Bradley S. Phillips, Munger Tolles & Olson LLP, Los Angeles, California; Sarah Weiner, Munger Tolles & Olson LLP, Washington, D.C.; for Amici Curiae Asian Americans Advancing Justice, Conference of Asian Pacific American Law Faculty, Human Rights First, Northwest Immigrant Rights Project, and UNLV Immigration Clinic.
Amanda Valerio, Paul Weiss Rifkind Wharton & Garrison LLP, Washington, D.C.; Alexia D. Korberg, Melina Meneguin Layerenza, and Patrick McCusker, Paul Weiss Rifkind Wharton & Garrison LLP, New York, New York; for Amici Curiae Immigration Scholars.
Ahilan Arulanantham, UCLA School of Law, Los Angeles, California; Eric Fish, UC Davis School of Law, Davis, California; Yaman Salahi, Edelson P.C., San Francisco, California; for Amici Curiae The Aoki Center of Critical Race and Nation Studies, the Center for Immigration Law and Policy, and the Southern Poverty Law Center.
IKUTA, Circuit Judge:
Gustavo Carrillo-Lopez, a citizen of Mexico, was indicted for illegally reentering the United States following prior removal,
I
Carrillo-Lopez is a citizen of Mexico. He was removed from the United States twice, once in 1999 and once in 2012. Before his removal in 2012, he was convicted of felony drug possession and misdemeanor infliction of corporal injury on a spouse. On some date after 2012, he reentered the United States. On June 13, 2019, a search of his residence uncovered two firearms and plastic bags containing methamphetamine, cocaine, and heroin. Carrillo-Lopez was arrested and subsequently pleaded guilty to a single count of trafficking a controlled substance. On June 25, 2020, he was indicted for illegal reentry following prior removal, in violation of
Carrillo-Lopez moved to dismiss the indictment on the ground that
We have jurisdiction under
II
A
The Fifth Amendment provides that “[n]o person shall... be deprived of life, liberty, or property, without due process of law.”
Assessing an equal protection challenge requires a court to “measure the basic validity of [a] legislative classification.” Pers. Adm‘r of Mass. v. Feeney, 442 U.S. 256, 272 (1979). When a statute makes an express classification on the basis of race, it is “presumptively invalid and can be upheld only upon an extraordinary justification.” Shaw v. Reno, 509 U.S. 630, 643–44 (1993) (quoting Feeney, 442 U.S. at 272).
A statute that is facially neutral may also violate equal protection principles, but only if a discriminatory purpose was a motivating factor for the legislation. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). “Whenever a challenger claims that a... law was enacted with discriminatory intent, the burden of proof lies with the challenger.” Abbott, 138 S. Ct. at 2324. To establish that the lawmakers had a discriminatory purpose in enacting specific legislation, it is not enough to show that the lawmakers had an “awareness of [the] consequences” of the legislation for the affected group, that those consequences were “foreseeable,” Feeney, 442 U.S. at 278-79, or that the legislature acted “with indifference to” the effect on that group, Luft v. Evers, 963 F.3d 665, 670 (7th Cir. 2020). Rather, the lawmaking body must have “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U.S. at 279. Therefore, the plaintiff must “prove by an evidentiary preponderance that racial discrimination was a substantial or motivating factor in enacting the challenged provision.” Harness v. Watson, 47 F.4th 296, 304 (5th Cir. 2022)
There is no bright-line rule for determining whether the plaintiff has carried this burden. Rather, the Supreme Court has recognized that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266. Courts must consider the totality of the evidence presented by the plaintiff in light of certain presumptions and principles established by the Supreme Court.
The most important evidence of legislative intent is the historical evidence relating to the enactment at issue. The Court considers factors such as (1) the “historical background of the decision,” (2) the “specific sequence of events leading up to the challenged decision,” (3) “[d]epartures from the normal procedural sequence,” (4) “[s]ubstantive departures,” and (5) “legislative or administrative history.” Id. at 267–68.
This evidence must be considered in light of the strong “presumption of good faith” on the part of legislators. Miller v. Johnson, 515 U.S. 900, 916 (1995). It is “the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the [legislature that enacted the current law] acted with invidious intent.” Abbott, 138 S. Ct. at 2325. We must also consider the evidence in context. In evaluating “contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports,” Arlington Heights, 429 U.S. at 268, a court must be aware that the statements of a handful of lawmakers may not be probative of the intent of the legislature as a whole. See United States v. O‘Brien, 391 U.S. 367, 384 (1968) (“What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it . . . .“); see also League of Women Voters of Fla. Inc. v. Fla. Sec‘y of State, 66 F.4th 905, 939 (11th Cir. 2023) (“[A] statement or inquiry by a single legislator would constitute little evidence of discriminatory intent on the part of the legislature.“). And the views of an earlier legislature are generally not probative of the intent of a later legislature, see, e.g., Abbott, 138 S. Ct. at 2325; United States v. Dumas, 64 F.3d 1427, 1430 (9th Cir. 1995), particularly when the subsequent legislature has “a substantially different composition,” Brnovich v. Democratic Nat‘l Comm., 141 S. Ct. 2321, 2349 n.22 (2021) (citation and quotation marks omitted).
Because “[p]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” Abbott, 138 S. Ct. at 2324 (quoting City of Mobile v. Bolden, 446 U.S. 55, 74 (1980) (plurality opinion)), “the presumption of legislative good faith [is] not changed by a finding of past discrimination,” id. In Abbott, for instance, the Texas legislature enacted a 2013 redistricting plan in response to a challenge to its original 2011 plan. Id. at 2316–17. A three-judge Texas court invalidated the 2013 plan on the ground that it was tainted by the legislature‘s discriminatory intent in passing the predecessor 2011 plan. Id. at 2318. The Supreme Court reversed, stating “there can be no doubt about what matters: It is the intent of the 2013 Legislature.” Id. at 2325. Because “it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legislature
In addition to historical evidence relating to the enactment at issue, courts may consider evidence that the legislation at issue has a disproportionate impact on an identifiable group of persons. But while “[d]isproportionate impact is not irrelevant,” it is generally not dispositive, and there must be other evidence of a discriminatory purpose. Davis, 426 U.S. at 242. “[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.” Feeney, 442 U.S. at 272. A court may not infer a discriminatory motive based solely on evidence of a disproportionate impact except in rare cases where “a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action.” Arlington Heights, 429 U.S. at 266. Moreover, if the enactment of the legislation and the disproportionate impact are not close in time, the inference that a statute was enacted “because of” its impact on an identifiable group is limited. Feeney, 442 U.S. at 279. Thus, “unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value.” McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987); see also Johnson v. Governor of the State of Fla., 405 F.3d 1214, 1222 n.17 (11th Cir. 2005) (en banc) (rejecting reliance on “present” day evidence of disparate impact where the plaintiffs challenged a 1986 law as discriminatory).
If the challenger satisfies the burden of showing a discriminatory purpose was a motivating factor, the burden then shifts to the government to show that “the same decision would have resulted even had the impermissible purpose not been considered.” Arlington Heights, 429 U.S. at 270 n.21. If the government carries this burden, there is no equal protection violation even if there is evidence that the legislature had a discriminatory motive. Id.
If the challenger succeeds in showing that the legislation or official action is motivated in part by discrimination based on race or national origin, and the government would not have enacted the same legislation absent such motivation, the enactment violates equal protection principles unless the government has a compelling reason for enacting it. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
B
The government contends that the standard described above is inapplicable to immigration laws. Rather, it argues, such laws should be evaluated through a more deferential framework because the Court
It is true that the Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government‘s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). More recently, the Court has stated that “[b]ecause decisions in these [immigration] matters may implicate ‘relations with foreign powers,’ or involve ‘classifications defined in the light of changing political and economic circumstances,’ such judgments ‘are frequently of a character more appropriate to either the Legislature or the Executive.‘” Trump v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018) (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Further, the Court has (without precise explanation) applied a deferential standard, akin to rational basis review, in some contexts involving immigration cases. See, e.g., Fiallo, 430 U.S. at 792-96 (giving minimal scrutiny to a gender-based distinction in an immigration law); cf. Hawaii, 138 S. Ct. at 2441 (Sotomayor, J., dissenting) (arguing that the majority, “without explanation or precedential support, limits its review of the [Presidential Proclamation barring entry of aliens from countries that were predominantly Muslim] to rational-basis scrutiny“).
Nevertheless, the Supreme Court has also (again, without precise explanation) applied higher scrutiny to immigration actions. For instance, in considering whether the Executive Branch‘s rescission of an administrative immigration relief program violated the equal protection guarantee of the Fifth Amendment, the Court considered whether the plaintiffs raised “a plausible inference that an ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.” Dep‘t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020) (quoting Arlington Heights, 429 U.S. at 266). Neither the Supreme Court nor we have directly addressed the issue regarding which standard of review applies to equal protection challenges to immigration laws.4 We decline to address this issue, because (as explained below), Carrillo-Lopez‘s equal protection challenge fails even under the usual test for assessing such claims set forth in Arlington Heights.
III
We now turn to the question whether the district court erred in concluding that Carrillo-Lopez carried his burden of proving that
A
Section 1326 provides that “any alien who... has been denied admission, excluded, deported or removed” from the
As drafted,
B
The history of the INA began in 1947, when the Senate directed the Senate Committee on the Judiciary “to make a full and complete investigation of [the country‘s] entire immigration system” and to provide “recommendations for changes in the immigration and naturalization laws as it may deem advisable.” S. REP. No. 81-1515, at 803 (1950) [hereinafter Senate Report]. This effort was “a most intensive and searching investigation and study over a three year period.” Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir. 1968). The subcommittee tasked with this investigation examined “a great volume of reports, exhibits, and statistical data,” examined officials and employees of the Immigration and Naturalization Service (INS) and various divisions of the State Department, and made field investigations throughout Europe and the United States, as well as at the Mexican border, in Canadian border cities, and in Havana, Cuba. Senate Report, at 2-4. Recognizing that the immigration law of the United States was established by “2 comprehensive immigration laws which are still in effect” and “over 200 additional legislative enactments,” as well as “treaties, Executive orders, proclamations, and a great many rules, regulations and operations instructions,” the subcommittee determined that it would “draft one complete omnibus bill which would embody all of the immigration and naturalization laws.” Id. at 4.
The extensive 925-page Senate Report provided a comprehensive analysis of immigration law. Part 1 set out a detailed review of the immigration system, providing (among other things) a description of the “[r]aces and peoples of the world,” a “[h]istory of the immigration policy of the United States,” a “[s]ummary of the immigration laws,” and a discussion of the “characteristics of the population of the United States.” Id. at iii-iv. It included a discussion of excludable and deportable classes of aliens, as well as discussing admissible aliens, with special focus on so-called “quota” and “nonquota” immigrants.5 Id. at iii, 68–71.
In connection with the discussion of the characteristics of the population of the United States in Part 1, the Senate Report provided an overview of specified characteristics of different population groups in the Americas, including Canadians and Mexicans. These sections all followed the same template for each population group. In discussing Mexicans, the Senate Report covered (among other things) the population change since 1820 due to Mexican
One of the longest sections in Part 1, covering some 173 pages, discussed whether to continue “the numerical restriction of immigration through the imposition of quotas.” Id. at 417. As explained in the Senate Report, the existing quota system fixed the number of persons from each covered nation who could enter the United States for permanent residence at the “number which bears the same ratio to 150,000 as the number of inhabitants in the United States in 1920 of that nationality bears to the total number of inhabitants in the continental United States in 1920.” Id. at 420. Historically, “[t]he first numerical restriction” on immigration into the United States “was imposed by the Quota Act of May 19, 1921,” to address concerns “in the period immediately following [World War I], as a result of growing labor unrest, increasing unemployment, and general alarm over the potential flood of ‘newer’ immigrants from war-torn Europe.” Id. at 419. Over the decades, limitations on quota immigrants changed, such as the removal of the bar to Chinese immigration. See id. at 422, 426. Immigrants from Western Hemisphere countries (including Mexico and other countries in Central and South America) were excluded from this national-origin quota system. Id. at 459.
The Senate Report acknowledged that the national-origin quota system was controversial because some opponents labeled it as “discriminatory in the treatment of certain nationalities of Europe,” id. at 448, and therefore attempted to “examine this controversial subject objectively in order to present an unbiased appraisal of the quota system.” Id. at 417. The Senate Report ultimately recommended retaining the quota system, but making “changes in existing law both with respect to the manner in which quotas [were] established for intending immigrants and the determination of preferences within the quotas.” Id. at 588.
Part 1 also included a chapter on procedures relating to immigrants and nonimmigrants. Id. at viii-ix. This section discussed procedures for admission, exclusion, expulsion, bonds, and immigration offenses. Id. at 612-56. In the section on immigration offenses, the Senate Report discussed illegal reentry after deportation, and explained that a prior immigration law, the Act of March 4, 1929, “ma[de] it a felony for any deported alien who ha[d] not received permission to reapply for admission to enter or attempt to enter the United States.” Id. at 646 (citation omitted). In making “[s]uggestions relating to criminal provisions,” the Senate Report noted that statements from witnesses and field offices of the INS stressed the “difficulties encountered in getting prosecutions and convictions, especially in the Mexican border area” because “many flagrant violators of the immigration laws [were] not prosecuted or, if prosecuted, [got] off with suspended sentences or probation.” Id. at 654. The Senate Report recommended that “enact[ing] legislation providing for a more severe penalty for illegal entry and smuggling, as suggested by many, would not solve the problem.” Id. at 654–55. Instead, it recommended that the
“provisions relating to reentry after deportation ... be carried forward in one section and apply to any alien deported for any reason and provide for the same penalty.” Id. at 656.
Part 2 of the Senate Report provided a detailed overview of the naturalization system, including the history of naturalization
After the issuance of the Senate Report, Senator Pat McCarran introduced S. 3455 in the Senate, which provided for the repeal of then-current immigration and naturalization laws and the enactment of a completely revised immigration and naturalization code. Off. of the Historian, U.S. Dep’t of State, Foreign Relations of the United States, 1952-54, General: Economic and Political Matters, Vol. 1, Pt. 2, at 1569–70 (William Z. Slany ed., 1983). After input from the staff of the Senate Immigration Subcommittee as well as experts from the INS and the Department of State, and extensive revisions, Senator McCarran introduced S. 716, a revised version of S. 3455, and Representative Francis E. Walter introduced an identical companion House bill, H.R. 2379. Id. at 1570. Extensive joint hearings were conducted by various House and Senate subcommittees. Id.
Following the joint hearings, and in the course of numerous conferences, Senator McCarran and Representative Walter introduced the final versions of the bill in the Senate and the House (S. 2550 and H.R. 5678, respectively). Id. According to a Senate Judiciary Committee Report, the revised bill made several significant changes from prior law. The changes included a “system of selective immigration within the national origins quota system.” S. REP. NO. 82-1137, at 3 (1952) [hereinafter Senate Judiciary Committee Report]. The national-origin quota system was revised to use a new formula and with an alteration in quota preferences to aliens with specified skills and relatives of United States citizens and alien residents. 98 Cong. Rec. 5796 (1952); id. at 4996 (statement of Sen. Thye) (stating that he was impressed with the argument that quotas should be given “to facilitate reunion of families and relatives” and “provide needed workers and desirable skills for this country”). The bills also removed “[r]acial discriminations and discriminations based upon sex.” Senate Judiciary Committee Report, at 3; see also 98 Cong. Rec. 5765 (1952) (statement of Sen. McCarran) (“Under the provisions of S. 2550, no one will be inadmissible to the United States solely because of race and since the bill is removing discriminations from the law in this regard, it cannot be said that new racial discriminations are being introduced.”). Further, “[s]tructural changes [were] made in the enforcement agencies for greater efficiency;” and the bills strengthened “[t]he exclusion and deportation procedures.” Senate Judiciary Committee Report, at 3. The Senate Judiciary Committee Report made only one mention of the reentry provisions. It stated: “In addition to the foregoing, criminal sanctions are provided for entry of an alien at an improper time or place, for misrepresentation and concealment of facts, for reentry of certain deported aliens, for aiding
Congressional debates over the final bill focused on the national-origin quota system. Critics argued that this system was arbitrary because it favored the “so-called Nordic strain” of immigrants but disfavored “people from southern or eastern Europe.” 98 Cong. Rec. at 5768 (1952) (statement of Sen. Lehman). Senator Hubert Humphrey and Senator Herbert Lehman sponsored a competing bill, S. 2842, which aimed at making “the entire quota system more flexible and more realistic,” id. at 2141, but the bill did not garner enough support to be given a hearing, id. at 5603.
Congressional debates did not mention the illegal reentry provision, Section 276. “An exhaustive reading of the congressional debate indicates that Congress was deeply concerned with many facets of the [INA], but §§ 1325 and 1326 were not among the debated sections.” United States v. Ortiz-Martinez, 557 F.2d 214, 216 (9th Cir. 1977). Carrillo-Lopez concedes that “[c]ongressional debate focused on the national-origins provisions, not the illegal reentry statute.” There was no discussion of Section 276’s impact on Mexicans or other Central and South Americans.
The controversy over the national-origin quota system continued even after the bill (now referred to as H.R. 5678) passed both houses of Congress, because President Truman vetoed the bill due to his opposition to the national-origin quota system. See Veto of Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality, 1 PUB. PAPERS 441-45 (June 25, 1952). In his veto statement, President Truman first made clear that the bill “contains certain provisions that meet with my approval,” including removing “[a]ll racial bars to naturalization.” Id. at 441. Nevertheless, President Truman opposed a number of the bill’s features, most significantly its provisions continuing “the national origins quota system.” Id. at 442. President Truman explained that he had “no quarrel” with the general idea of quotas, but stated that the national-origin quota system was “too small for our needs today and... create[d] a pattern that [was] insulting to large numbers of our finest citizens, irritating to our allies abroad, and foreign to our purposes and ideals.” Id. According to President Truman, the system perpetuated by the bill discriminated against people of Southern and Eastern Europe, in favor of immigrants from England, Ireland, and Germany, which President Truman argued was improper both on moral and political grounds. Id. at 442-43. In particular, President Truman noted the United States’ alliance with Italy, Greece, and Turkey, and the need to help immigrants from Eastern Europe who were escaping communism. Id. at 443. President Truman did not mention Mexicans or other Central and South Americans, to whom the national-origin quota system did not apply.8 Nor did he mention the provision criminalizing reentry, Section
As enacted, Section 276 (subsequently codified as
C
We now turn to Carrillo-Lopez’s arguments that Congress was motivated in part by discrimination against Mexicans and other Central and South Americans in enacting
1
Because historical evidence relating to the enactment at issue is most probative, we first consider Carrillo-Lopez’s arguments relating to the legislature’s enactment of
Carrillo-Lopez argues that the statements that “Latino immigrants were ‘coming into the United States illegally at a rate of 20,000 per month,’ and the statement that people entering illegally after being deported is ‘principally a southern border problem,’” evince racism. Carrillo-Lopez also describes statements in Part 1 as “denigrat[ing] Latino immigrants as particularly undesirable due to alleged: low-percentage of English speakers; inability to assimilate to ‘Anglo-American’ culture and education, with Latino students believed to be ‘as much as 3 years behind’; and a high number receiving ‘public relief.’”11
We disagree. In context, the statements Carrillo-Lopez identified in the Senate Report merely provided a factual description of Mexicans and other Latin Americans, along with all other “races and peoples.” There is no language that “denigrates Latino immigrants as particularly undesirable.” Indeed, neither Carrillo-Lopez nor the district court identified any racist or derogatory language regarding Mexicans or other Central and South Americans in these pages, or anywhere else in the 925-page Senate Report.
Second, Carrillo-Lopez contends that Congress’s discriminatory intent in enacting
We reject this attenuated argument. The Ford letter’s use of the term “wetback” sheds no light on Congress’s views. The Ford letter quoted a separate report that employed that term when recommending that Congress clarify immigration officers’ search authority to assist in enforcing the law against smugglers and persons who harbored illegal entrants.13
Given the lack of historical evidence that the Congress that enacted
Carrillo-Lopez argues that the discriminatory purpose motivating the 1929 Act tainted the INA and
This interpretation of the legislative history is clearly erroneous. The INA was enacted 23 years after the 1929 Act, and was attributable to a legislature with “a substantially different composition,” in that Congress experienced a more than 96 percent turnover of its personnel in the intervening years. Brnovich, 141 S. Ct. at 2349 n.22 (citation omitted). The statements of Representative Thomas Jenkins and Senator Walter George, which in any event were made in the context of debating the national-origin quota system rather than in discussing
Finally, the INA was not a “reenactment” of the 1929 Act, but rather a broad reformulation of the nation’s immigration laws, which included a recommendation “that the time ha[d] come to erase from our statute books any discrimination against a person desiring to immigrate to this country or to become a naturalized citizen, if such discrimination [was] based solely on race.” Senate Report, at 710. Section 1326 itself incorporated provisions from three acts and made substantial revisions and additions, H.R. 5678, 82d Cong., 2d Sess., § 276 (Apr. 28, 1952); see supra pp. 25–26 & n.9; see also Mendoza-Lopez, 481 U.S. at 835–36. The district court therefore clearly erred in stating that
2
In addition to the legislative history, Carrillo-Lopez argues that
Carrillo-Lopez does not provide direct evidence of the impact of
Carrillo-Lopez also provides information about the current impact of
But even if Carrillo-Lopez had provided direct evidence that
3
We hold that the district court clearly erred in its finding that Congress’s enactment of
We conclude that Carrillo-Lopez did not meet his burden to prove that Congress enacted
REVERSED AND REMANDED.
Notes
Subject to subsection (b) [(imposing enhanced penalties)], any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien‘s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
H.R. REP. NO. 82-1365, at 68 (1952).In addition to the foregoing, criminal sanctions are provided for entry of an alien at an improper time or place, for misrepresentation and concealment of facts, for reentry of certain deported aliens, for aiding and assisting subversive aliens to enter the United States, and for importation of aliens for immoral purposes.
United States v. Mendoza-Lopez, 481 U.S. 828, 835 (1987) (citing H.R. REP. NO. 82-1365, at 219–20 (1952)).[b]efore § 1326 was enacted, three statutory sections imposed criminal penalties upon aliens who reentered the country after deportation: 8 U.S.C. § 180(a) (1946 ed.) (repealed 1952), which provided that any alien who had been “deported in pursuance of law” and subsequently entered the United States would be guilty of a felony; 8 U.S.C. § 138 (1946 ed.) (repealed 1952), which provided that an alien deported for prostitution, procuring, or similar immoral activity, and who thereafter reentered the United States, would be guilty of a misdemeanor and subject to a different penalty; and 8 U.S.C. § 137–7(b) (1946 ed., Supp. V) (repealed 1952), which stated that any alien who reentered the country after being deported for subversive activity would be guilty of a felony and subject to yet a third, more severe penalty.