UNITED STATES OF AMERICA v. AGUSTIN MACHIC-XIAP
Case No. 3:19-cr-407-SI
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
August 3, 2021
Michael H. Simon, District Judge
OPINION AND ORDER
Alison M. Clark and Elizabeth G. Daily, Assistant Federal Public Defenders, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 101 SW Main Street, Suite 1700, Portland, OR 97204. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Augustin Machic-Xiap is a Guatemalan national. A grand jury indicted Mr. Machic-Xiap for violating
Congress first criminalized illegal reentry in a law called the “Undesirable Aliens
Also as discussed below, the Court finds that racism has permeated the official congressional debate over United States immigration laws since the late 19th and early 20th centuries, including the 1929 Act. Although some members of Congress in 1952 hoped that the INA would eliminate the bigotry of earlier immigration legislation, especially anti-Asian bigotry, other members of Congress at that time continued to express statements exhibiting overt racial, ethnic, or religious prejudices. Indeed, new expressions of prejudice, evidenced by Congress‘s frequent use in the 1950s of the derogatory epithet “wetback” to describe immigrants from Latin America, emerged during the debate leading to the enactment of the INA.
Proving that racism “motivated” a specific congressional act sufficient to strike down that law as unconstitutional, however, is not easy. Indeed, this district court is unaware of any federal appellate decision holding that a facially neutral act passed by Congress was motivated by racial, ethnic, or religious animus. Although the Court also finds that
Mr. Machic-Xiap presents significant and persuasive evidence of racial animus directed against persons coming from Latin America, especially as shown in the legislative history of the 1929 Act, which is a precursor to
Racism is an invidious and, unfortunately, continuing presence in the United States. Mr. Machic-Xiap has presented strong and disconcerting evidence about the role that racism has played in the enactment, reenactment, and revision of the nation‘s immigration laws, especially those passed in the first three decades of the 20th century. Mr. Machic-Xiap has not, however, satisfied his heavy burden of proving that racism motivated Congress to enact
STANDARDS
The
“Inquiries into congressional motives or purposes are a hazardous matter.” United States v. O‘Brien, 391 U.S. 367, 383 (1968); see also Hunter v. Underwood, 471 U.S. 222, 228 (1985) (“Proving the motivation behind official action is often a problematic undertaking.“). “Determining 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. Because “[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one,” a more nuanced analysis is necessary. Id. at 265.
To assist with this delicate endeavor, the Supreme Court has provided a non-exhaustive list of factors to consider when determining whether government action has as a motivating factor an invidious purpose. First, “[t]he historical background of the decision is one evidentiary source.” Id. at 267. Second, “[t]he specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker‘s purposes.” Id. Third, significant “[d]epartures from the normal procedural sequence” or “[s]ubstantive departures” from “the factors usually considered important by the decisionmaker” “might afford evidence that improper purposes are playing a role.” Id. Fourth, whether the effect of the action “‘bears more heavily on one race than another’ may provide” evidence of animus. Id. at 266 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)) (citation omitted).
Finally, the legislative history of a statute, “especially where there are contemporary statements by members of the decisionmaking body” is sometimes probative. Id. at 268. Courts must use caution, however, when seeking to glean a legislature‘s motivations from the statements of a handful of lawmakers. See O‘Brien, 391 U.S. at 383-84 (noting that although reliance on legislative history is appropriate when courts interpret ambiguous statutes, “[i]t is entirely a different matter when we are
The views of an earlier Congress “form a hazardous basis for inferring the intent of a later one.” See United States v. Price, 361 U.S. 304, 313 (1960). “[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)) (alteration in original). Federal appellate courts have upheld state statutes nearly identical to statutes the same courts have previously found to be motivated by racial animus when a new legislature passed the later statute. See, e.g., N.C. State Conf. of the NAACP v. Raymond, 981 F.3d 295, 298, 303 (4th Cir. 2020). Instead, the motivations of an earlier legislature represent historical background, which is just “‘one evidentiary source’ relevant to the question of intent.” Abbott, 138 S. Ct. at 2325 (quoting Arlington Heights, 429 U.S. at 267).2
The Arlington Heights factors are not exhaustive and no single factor is individually dispositive. 429 U.S. at 268. “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. If the challenger satisfies that burden, 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. Both the challenger and, if necessary, the Government satisfy their respective burdens by a preponderance of the evidence. Hunter, 471 U.S. at 225.3
FINDINGS OF
Section 1326 provides that “any alien who has been denied admission, excluded, deported or removed” from the United States and, without permission, later “enters, attempts to enter, or is at any time found in, the United States” shall be imprisoned for up to two years.
Notes
The 1929 Act was a compromise between southwestern agribusiness leaders who relied on undocumented aliens from Mexico and Central America for cheap labor and nativists in Congress who increasingly viewed immigrants from Latin America as a threat to blood purity in the United States. Congress designed much of its immigration policy in the late-19th and early-20th centuries, Professor Kelly Lytle Hernandez7 testified, to “filter out undesirable immigrants.”8 Because eugenics—an intellectual movement that attributed biological significance to race—had gained popularity during the early-20th century, race was the dominant factor in Congress‘s efforts to define “undesirability.” Asian immigrants were Congress‘s first target.9 Immigrants from southern and eastern Europe came to be considered “undesirable” after the United States Congressional Joint Immigration Commission‘s 1911 Report (known as the Dillingham Report).10 That report, which discussed immigration in highly racialized terms,11 found that most “new immigration” had been from southern and eastern European countries.12 These “new immigrants” were less likely successfully to assimilate because they were “[r]acially . . . essentially unlike the British, German, and other [earlier immigrants],” and “far less intelligent.”13 Consistent with the Dillingham Report, the Immigration Act of 1924 imposed a quotas on the number of immigrants entering the United States from many countries, and this law expressly favored immigrants from northern Europe.14
Congress appeared unconcerned, meanwhile, with immigration from Mexico and Central America in the late-19th and early-20th centuries. Mexican15 immigrants came into the United States “more or less freely” in the first two decades of the 20th century.16 Moreover, at the turn of the century, Congress classified Mexicans as white.17 The Dillingham Report, however, contains clues that Congress considered all people from Latin America an undesirable but exploitable race. The Report described Mexicans as having “limited” “competitive ability,” as “peon[s],” and “without ambition and thrift.”18 Although the report concluded that Mexicans were “less desirable as a citizen,” it explained that Mexican immigrants were an ideal “transient and migratory unskilled labor supply.”19
Leaders of the southwestern United States’ agricultural industries shared the Dillingham Report‘s view of immigrants from Latin America as an ideal, temporary workforce. After World War I, the southwest became home to a significant percentage of the nation‘s larger farms.20 These immigrants, many of whom were undocumented, fueled the growth of large farms in California, Arizona, and Texas.21 To protect the labor source that perpetuated their growth, southwestern agribusiness leaders urged Congress not to ban or limit immigration. Mexican immigrants, one lobbyist explained, were “bird[s] of passage’ who would, at the end of each [growing] season, return to Mexico.”22
Through the early- and mid-1920s, southwestern agribusiness got its way. Although the Immigration Act of 1917 banned contract laborers from migrating to the United States, Congress quickly exempted Mexican immigrants from the ban.23 Similarly, although Congress imposed quotas on immigrants from Europe in the Immigration Act of 1924, it rejected some congressmen‘s calls to impose quotas on immigrants from Mexico and Central America.24
Pressure to limit immigration from Latin America, however, grew. Having excluded immigrants from Asia and limiting immigrants from southern and eastern Europe, proponents of eugenics turned their attention to the southern border. In 1925, then-Secretary of Labor James Davis, whose agency oversaw immigration at the time, commissioned a study called “The Racial Problems Involved in Immigration from Latin America and the West Indies to the United States.”25 That study emphasized the supposed danger posed by indigenous ancestry of Latin American immigrants. In 1928, the United States House of Representatives heard testimony from Dr. Harold Laughlin, a eugenicist who warned of “race mixture” between women and “inferior races” if Congress did not curb immigration from the United States’ southern border.26 Laughlin suggested that if Congress could not use a “quota system according to race” to “select superior individuals” whose “offspring will tend to raise the level of American intelligence,” then Congress needed to develop other methods for separating whites from those coming from Latin America.27
A change in how the public perceived these immigrants, fueled by an increase in deportations in the second half of the 1920s, bolstered those who argued that immigrants from Latin America were undesirable. The Immigration Act of 1924 effectively eliminated the statute of limitations for deportation.28 Congress‘s creation of the Border Patrol just three days after passage of the Immigration Act of 1924 also increased deportations. The Border Patrol then “racialized”29 the deportations. Low-income white citizens in the border areas, who were looked down upon by the region‘s wealthier, landowning white citizens, staffed the newly formed Border Patrol. Imbued by the federal government with expansive deportation authority, Border Patrol agents enjoyed heightened status and influence. That influence was best preserved by controlling the flow of labor (i.e., immigrants illegally crossing the southern border) to the landowners. Thus, although “all kinds of people” were eligible for deportation, Border Patrol was mostly deporting “one population,” immigrants from south of the border.30 The high rates of deportations for these immigrants, Professor Hernandez testified, created the perception of them as the “iconic illegal immigrant.”31
Soon, congressmen were decrying the threat posed by immigration from Latin America. One representative urged Congress to “see what grave problems have been injected into our national life by the importation for labor purposes of great numbers of [Mexican] people essentially different from us in character, in social position, and otherwise.”32 Another argued that “[Mexican] immigrants are poisoning the American citizen.”33 Still another complained that their “blood [is] a very great penalty upon the society which assimilates it,” because it is “composed of mixture blood of white, Indian, and negro.”34
Increased deportations of immigrants from south of the border also altered southwestern agribusiness’ calculations. Farmers quickly realized that the threat of deportation was a strong bargaining tool that they could use for their benefit. South Carolina Senator Coleman Livingston Blease35 saw an opportunity for compromise: Congress would not impose a quota on immigrants from Mexico or Central America, but criminalize the act of illegally reentering the United States after deportation.36 Thus, Farmers retained their labor force and gained “the threat of imprisonment in ... negotiations” with undocumented laborers.37 Congressmen who feared that persons from Latin America imperiled the nation‘s blood purity, meanwhile, gained a legal way to separate them from rest of the population. Of course, fear of blood contamination or desire for economic exploitation was not the only reason for enacting the 1929 Act.38
Pub. L. No. 70-1018 § 1, 45 Stat. 1551.[I]f any alien has been arrested and deported in pursuance of law, he shall be excluded from admission to the United States whether such deportation took place before or after the enactment of this Act, and if he enters or attempts to enter the United States after the expiration of sixty days after the enactment of this act, he shall be guilty of a felony and upon conviction thereof shall, unless a different penalty is otherwise expressly provided by law, be punished by imprisonment for not more than two years or by a fine of not more than $1,000, or by both such fine and imprisonment.
The 1929 Act also solidified perceptions of persons from Latin America as a separate, unwelcomed race. In the 1930 Census, Mexicans were no longer categorized as white, but as a distinct race.39 Throughout the 1930s and early 1940s, “Mexican workers in the Southwest and California were racialized as a foreign people, an ‘alien race’ not legitimately present or intended for inclusion in the polity.”40 Moreover, “[d]uring the 1930s, . . . between 85 percent and 99 percent of the people who are in prison [for unlawful reentry] are Latin Mexican nationals.”41
The perception of persons from Latin America as “the illegal” “deepen[ed] after the passage [of the 1929 Act].”42
In 1942, the United States sought to limit illegal immigration through a multilateral agreement with Mexico and several Caribbean countries called the “Bracero Program.” This program promised Mexican and Caribbean laborers legal admission into the country, guaranteed wages above those typically offered, and housing. Although Congress intended the Bracero Program to stem the flow of illegal immigration by creating a lawful means to enter the United States, for several reasons illegal immigration increased during the program‘s operation.43
In the early 1950s, Mexico‘s support for the Bracero Program waned because of the United States’ failure to prevent illegal immigration and mistreatment of Mexican citizens who used the program. Congress feared that Mexico would end the program altogether unless the United States strengthened its immigration laws.44 To preserve the program, Congress passed legislation criminalizing the “conceal[ing], harbor[ing], or shield[ing] from detection” an alien who entered the United States illegally in March 1952.45 During the Senate‘s debate of the bill, its sponsor called the bill the “Wetback Bill.”46 Several senators, meanwhile, suggested that the bill would help solve the “wetback problem.”47 Additionally, like the 1929 Act, the bill represented a compromise with farmers: it included a provision explaining that “employment . . . shall not be deemed to constitute harboring.”48
Three months later, Congress passed the INA.49 Unlike previous piecemeal immigration legislation, the INA was a comprehensive immigration statute designed to “revise the laws relating to immigration, naturalization, and nationality.”50 Indeed, the bill was Congress‘s response to a “massive, nine-hundred-page report that identified problems with current U.S. immigration policy and laid out recommendations for how best to address them.”51
The INA included what is currently codified—with some minor amendments—as
Any alien who—
(1) has been arrested and deported or excluded and deported, 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 excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or by both.52
Many in Congress viewed the INA as a dramatic departure from the heavily racialized immigration statutes of the early 1920s. The statute‘s architect, Senator Patrick McCarran, stated that the statute “does not contain one iota of racial or religious discrimination.”53 The Senate Judiciary Committee‘s Report, meanwhile, claimed that the INA disavowed prior immigration legislations’ belief in the superiority of northern European immigrants. It is no surprise that drafters of the post-World War II INA sought to distance their bill from the explicitly racist immigration bills of the early 1900s. As Professor Benjamin Gonzalez-O‘Brien54 testified, after “the Holocaust ... the expression of racist thoughts is no longer what is socially acceptable.”55
The truth, however, is more complicated. Although the INA‘s drafters purported to disavow the theory of Nordic superiority, the INA retained a quota system that favored immigrants from northern Europe. Similarly, although the INA eliminated the explicit Asiatic bar, it still imposed a more stringent quota on immigrants from Asia than from other regions. At least one Representative, John S. Wood of Georgia, made explicitly racist statements during the debate about the INA. He said that there was “something to” “racial origin,” and, although he was careful to note that he was “not a follower of Hitler,” he insisted that “statistics would show that the Western European races have made the best citizens of America.”56 President Harry Truman, however, did not agree that the INA was free of racist motivations. He vetoed the bill, explaining that it “perpetuate[d]” “racial or national barriers to naturalization,” specifically about immigrants from southeastern Europe and Asia.57
The INA changed little about the how Congress defined the crime of illegal reentry. In fact, Professor Gonzalez-O‘Brien testified that “there wasn‘t much debate around Mexican immigration under [the INA].” Hearing Tr. at 204. The only notable change from the 1929 Act to
Congress has reauthorized
DISCUSSION
A. Judicial Review of Facially Neutral Immigration Statutes
The parties disagree over the Court‘s authority to review immigration laws passed by Congress. Mr. Machic-Xiap argues that the Court reviews his equal protection challenge to
As previously noted, the
The Government cites several cases suggesting that the Court‘s review is more circumscribed. Each of the cases the Government cites, however, involved the political branches’ authority to decide who to admit to the United States, not their authority over noncitizens already present. See Trump v. Hawaii, 138 S. Ct. 2392, 2403 (2018) (executive order restricting admission to the United States from seven Muslim-majority nations); Fiallo v. Bell, 430 U.S. 787, 788-89 (1977) (denial of admission preference to noncitizen children of unwed fathers and noncitizen unwed fathers of citizen children); Kleindienst v. Mandel, 408 U.S. 753, 757-58, 760 (1972) (Attorney General‘s denial of a visa to a “leftist” noncitizen professor invited to speak at an American university). Courts owe exceptional deference to the political branches’ exercise of their authority to admit or exclude foreign nationals because admission and exclusion of noncitizens is a “fundamental sovereign attribute exercised by the government‘s political departments.” Trump v. Hawaii, 138 S. Ct. at 2418 (quoting Fiallo, 430 U.S. at 792). Those decisions “may implicate ‘relations with foreign powers,’ or involve ‘classifications defined in the light of changing political and economic circumstances.‘” Id. at 2418-19 (quoting Mathews, 426 U.S. at 81). A noncitizen‘s presence in the United States, however, “ma[kes] all the difference” and triggers more searching judicial review. Zadvydas, 533 U.S. at 693; see also id. (“The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law.“).
“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment‘s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. The Government‘s assertion that the Court has little role in policing the Fifth Amendment‘s boundaries in a case where the defendant faces risk of imprisonment is without merit.
B. Equal Protection Analysis
Equal protection principles permit only limited review of most validly enacted statutes. See F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993) (“[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.“) Laws that discriminate because of race, however, must satisfy more demanding scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 220 (1995) (“[R]acial classifications of any sort must be subjected to ‘strict scrutiny.‘“) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 285 (1986) (O‘Connor, J., concurring in part and concurring in judgment)). A facially neutral government action may still violate equal protection principles when it has a racially disparate impact and the government acted with a racially discriminatory purpose. Arlington Heights, 429 U.S. 252, 265-66 (1977). To determine whether the government acted with a racially discriminatory purpose, a district court should consider “the historical background and the sequence of events leading to [the statute‘s] enactment“; evidence of “any departures from the normal legislative process“; “relevant legislative history“; and “the law‘s impact on different racial groups.” Brnovich, 141 S. Ct. 2321, 2349 (2021).
On some of these factors—most notably
1. Disparate Impact
Mr. Machic-Xiap has ample evidence that
Instead, the Government argues that Mr. Machic-Xiap‘s evidence is not evidence of disparate impact but a result of Mexico‘s proximity to the United States and other political, economic, and sociological factors.64 The Government misdescribes disparate impact. That an innocent explanation may exist for the disparity does not eliminate the disparity. Indeed, Arlington Heights requires courts to look for evidence of a racially discriminatory motive because disparate impact alone might have an innocent explanation. See 429 U.S. at 266 n.15 (“In many instances, to recognize the limited probative value of disproportionate impact is merely to acknowledge the ‘heterogeneity’ of the Nation‘s population.“) (quoting Jefferson v. Hackney, 406 U.S. 535, 548 (1972)). Mr. Machic-Xiap has shown that
2. Evidence of Congress‘s Intent
Disparate impact is not the “sole touchstone of . . . invidious racial discrimination.” Arlington Heights, 429 U.S. at 265 (quoting Davis, 426 U.S. at 242). Mr. Machic-Xiap must also present evidence that racism motivated Congress to enact
The historical background of
Second, the 1929 Act served two racist purposes. It furthered nativists’ desire to separate certain immigrants from the general population by attaching criminal penalties like imprisonment to conduct that American farmers implicitly encouraged those immigrants to engage in: illegally reentering the country to work. The Congressional Record teems with statements showing fear of race mixing drove the desire to imprison immigrants from Latin America.68
The 1929 Act gave southwestern agribusiness greater ability to exploit these immigrants. Professor Hernandez testified that farmers, who before 1929 used the threat of deportation as leverage over this immigrant labor, appreciated the added leverage afforded by the threat of imprisonment. The Government suggests that the fact that the 1929 Act was a compromise with southwestern farmers somehow mitigates the overtly racist purpose that the 1929 Act served for nativists. Marginalizing a particular population to facilitate the economic exploitation of that group, however, is evidence of more, not less, racial animus. That the original statute criminalizing illegal reentry was a compromise between two groups animated by racial animus also is evidence that later illegal reentry statutes like
Mr. Machic-Xiap also presented historical background evidence closer in time to the passage of the INA. Most notably, Mr. Machic-Xiap demonstrated that many congressmen casually used the racial epithet “wetback” when the INA was being considered. Indeed, just before Congress passed the INA, Congress passed a bill that was colloquially known as the “Wetback Bill.” The Government argues that “wetback” was not a derogatory term when Congress used it in 1952 because it was an “accurate description” of Mexican immigrants whose backs were wet from having illegally entered the United States by crossing the Rio Grande River. The Court does not find this argument persuasive; reducing an entire population to a fleeting condition of a subset of that population is precisely what makes the term a slur.69 The nonchalance with which Congress used “wetback” near the time of the INA‘s passage (even if not during debates expressly about
Although Mr. Machic-Xiap‘s historical background evidence is strong, historical background revealing past discrimination cannot alone “flip[] the evidentiary burden on its head.” Abbott v. Perez, 138 S. Ct. 2305, 2325 (2018). The Court must also consider the other Arlington Heights factors: the sequence of events preceding, legislative history of, and existence of any procedural or substantive irregularities in
The legislative history of a statute, “especially where there are contemporary statements by members of the decisionmaking body,” may provide evidence of racial animus. Arlington Heights, 429 U.S. at 268. Both explicitly racist statements and statements that are not “overtly discriminatory” but represent a “camouflaged” “desire to discriminate against a racial minority” are relevant. Arce, 793 F.3d at 978 (quoting Smith v. Town of Clarkton, 682 F.2d 1055, 1064, 1066 (4th Cir. 1982)). Statements made by opponents of a bill, however, are generally not appropriate evidence of Congress‘s motive for enacting legislation. See, e.g., Fieger v. U.S. Att‘y Gen., 542 F.3d 1111, 1119 (6th Cir. 2008).
The legislative history of
Second, Mr. Machic-Xiap notes that Representative Wood, a supporter of the INA, asserted that there was “something to” “racial origin,” and that “the Western European races have made the best citizens of America.” That remark is unquestionably racist. Like President Truman‘s statement, however, the record suggests that this statement was more about the quota provisions of the INA, not
Finally, Mr. Machic-Xiap points to a report from Deputy Attorney General Peyton Ford praising
Mr. Machic-Xiap‘s evidence on the remaining factors is even weaker. “Departures from the normal procedural sequence” or “[s]ubstantive departures” from “the factors usually considered important by the decision maker” “might afford evidence that improper purposes are playing a role.” Arlington Heights, 429 U.S. at 267. Mr. Machic-Xiap‘s evidence reveals the opposite of procedural or substantive irregularities. Procedurally, the INA followed a comprehensive review of the entire panoply of the nation‘s immigration laws. Congress passed the INA after study by committee and significant debate. Nor is there anything substantively irregular about the INA or
Finally, “[t]he specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker‘s purposes.” Arlington Heights, 429 U.S. at 267. A citizen-driven amendment to a state constitution permitting racial discrimination in the sale or lease of private real property added within a year of the state legislature enacting statutes banning racially restrictive covenants on real property, for example, would suggest that racial animus motivated the amendment. See Reitman v. Mulkey, 387 U.S. 369, 371-74 (1967). Again, Mr. Machic-Xiap presents no similar sequence of events for
3. Mr. Machic-Xiap‘s Counterarguments
Mr. Machic-Xiap argues that because the crime of illegal reentry changed so little between its creation in the 1929 Act and the enactment of
Mr. Machic-Xiap also contends that
It is true that the 1929 Act and
Finally, Mr. Machic-Xiap attempts to analogize this case to three Supreme Court decisions involving provisions of state constitutions. Each is distinguishable. First, Mr. Machic-Xiap points to Hunter, in which the Supreme Court held that a provision of Alabama‘s constitution disenfranchising persons convicted of crimes involving moral turpitude violated the equal protection clause. 471 U.S. at 233. Alabama argued that the Supreme Court should consider whether subsequent legislative changes had eliminated the discriminatory motivation behind the constitutional provision. Id. at 232-33. The Supreme Court disagreed, noting that the original constitutional provision remained on the books and therefore the motivations animating that provision‘s adoptions were the subject of the Arlington Heights analysis. Id. This case, however, is not like Hunter, because unlike Alabama‘s moral turpitude provision, the 1929 Act does not remain on the books. Indeed, Hunter confirms that later enactments alter the Arlington Heights analysis, noting that the moral turpitude provision would perhaps survive “if enacted today without any impermissible motivation.” 471 U.S. at 233.
Even less persuasively, Mr. Machic-Xiap cites Ramos v. Louisiana, 140 S. Ct. 1390 (2020), and Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), in which the Supreme Court held that provisions of several state constitutions violated the Sixth Amendment (Ramos) and First Amendment (Espinoza), respectively. In both cases, the Supreme Court acknowledged that bigotry influenced the initial adoption of the provisions at issue and that the provisions were readopted absent impermissible motives. See Espinoza, 140 S. Ct. at 2293 n.2 (Sotomayor, J. dissenting); Ramos, 140 S. Ct. at 1401 n.44. Mr. Machic-Xiap argues that the Supreme Court‘s discussion of the prejudice that animated the provisions’ initial enactments when invalidating the provisions suggests that this Court should give greater weight in the Arlington Heights analysis to the prejudice that animated
CONCLUSION
Under existing Supreme Court precedent, the fact that racial prejudice played an invidious and overwhelming role in the creation of the Undesirable Aliens Act of 1929 does not compel the Government today to prove that Congress expressly disavowed all prior improper motives when defending a later-enacted law against an equal protection challenge, even when the historical foundation of the current law can be traced back to the earlier statute. The Court notes, however, that nothing restrains a future Congress from explicitly disavowing earlier expressions of racism when passing future immigration legislation, especially comprehensive immigration legislation. Indeed, that may be a tangible, responsible, and meaningful sign of progress, but it is a decision for Congress to make, rather than for a court to impose.
The Court DENIES Mr. Machic-Xiap‘s Motion to Dismiss the Indictment (ECF 28).
IT IS SO ORDERED.
DATED this 3rd day of August, 2021.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge