By: Freeman Halle

It is a criminal offense under 8 U.S.C §1326 for “removed aliens” – foreign nationals who have previously been denied admission, excluded, or removed – to reenter the United States, with limited exceptions.[1] Violations are punishable by fines, imprisonment up to two years, or both.[2] For those who were removed on account of their criminal history, or suspected links to terrorist activity, an unauthorized reentry can carry a sentence of up to twenty years.[3] Along with unlawful entry, unlawful reentry is one of the most frequently prosecuted crimes in federal courts. And while prosecution rates for both plummeted in the early days of the pandemic, prosecutions for unlawful reentry were quick to rebound. In August 2021, for example, §1326 charges were the most frequently filed charges in immigration prosecutions nationwide, with 1,086 that month. It would cause quite an upset if the statute were to be found unconstitutional, which is exactly what Judge Du of the District of Nevada held in United States v. Carrillo-Lopez this past August.

Per the indictment, Gustavo Carrillo-Lopez was deported and removed from the United States in 1999 but was later found in Nevada in June 2019, allegedly in violation of §1326. In his motion to dismiss the indictment, Carrillo-Lopez argued that the statute was enacted with discriminatory intent, and thus should be held unconstitutional under the equal protection framework outlined in Village of Arlington Heights v. Metropolitan Housing Development.[4] Under this test, the moving party bears the burden of showing that the law has a disparate impact and “that ‘racially discriminatory intent or purpose’ was a ‘motivating factor in the decision.’”[5] Carrillo-Lopez was not the first to raise this argument in a §1326 proceeding, but he was the first to succeed.

§1326’s Disparate Impact

The court accepted that §1326 has a disparate impact on Latinx individuals.[6] Although there is no publicly available data on the national origin of §1326 defendants, Mexican and Latinx descent consistently account for a majority of persons apprehended at the border.[7] Based on this data, and accepting that the majority of such apprehensions are ultimately prosecuted, the court was satisfied that Mexican and Latinx defendants would  necessarily be overrepresented in such prosecutions.[8] The government countered that this disparate result was simply a natural product of Mexico’s geographic proximity to the United States and that most unauthorized entries involved Mexican and Latinx individuals.[9] This argument may have carried the day, had the court not also found that the law was enacted with discriminatory intent.

Tracing §1326’s Lineage: From the Undesirable Aliens Act to the INA of 1952

The Undesirable Aliens Act of 1929 was the first statute to criminalize unauthorized entry and reentry to the United States. It was also enacted with unabashedly racist intent. As the court summarized in its opinion, the years referred to as the “tribal 20s” were characterized by heightened nativism and an open reliance by lawmakers on eugenics theories as justification for a range of immigration policies.[10] The House Immigration and Naturalization Committee invited eugenicists to testify in hearings, and Albert Johnson, the Chairman of the committee, advocated using “the principle of applied eugenics” to devise new restrictions on immigration.[11] In short, the nativists responsible for the Act were not coy about their aim; they created the law to reduce or eliminate the immigration of Mexicans to the United States.

If §1326 had been enacted as part of the Act of 1929 and left unchanged thereafter, the case would be clear cut, but it wasn’t: §1326 was enacted as part of the Immigration and Nationality Act (INA) of 1952. Because of this reenactment, the government argued, §1326 – although functionally just a recitation of the analogous provisions in the Act of 1929 – was enacted without discriminatory intent, this cleansed the law of its discriminatory past.[12] The government relied heavily on the Supreme Court’s 2018 decision in Abbot v. Perez, a case involving discriminatory intent in redistricting. In 2011 Texas’ redistricting plans were challenged in Federal Court as violative of the Voting Rights Act. In response, the District Court created interim plans by tweaking the State’s maps to comply with the VRA.[13] The Texas legislature subsequently adopted the court’s plan in 2013 and used them in the 2014 and 2016 elections,[14] but in 2017 the District Court reversed itself, finding that the legislature had actually failed to cure the “taint” of discriminatory intent from the 2011 plan when it enacted the court’s plan in 2013.[15]

Carrillo-Lopez’s counter arguments, and the ones that the court accepted, were twofold: first, the court held that the racial animus behind the Act of 1929 had infected the INA because the legislature had failed to substantially alter the statute, unlike in Abbott, where the 2013 districting plan had been changed to comply with the court’s revisions.[16] Second, based on the totality of the evidence provided, the court accepted that the 1952 enactment of §1326 was itself motivated by discriminatory intent. This was supported by the fact that the same Congress had passed the “Wetback Bill” only months prior (“Wetback” being a racial epithet) and that §1326 was adopted without much debate, whereas other provisions were discussed at length. Further, the Bill was passed over President Truman’s veto. Although Truman did not accuse the Congress of racial discrimination, he warned that the INA would “intensify the repressive and inhumane aspects of our immigration procedures.”[17] In light of this circumstantial evidence, and because the government failed to show that §1326 would have passed absent racial animus, the court dismissed the indictment.[18]

Out, Damned Spot!

How hard should it be to launder racist intent out of a legislative scheme? Should courts treat subsequent reenactments of a discriminatory law with suspicion, or are Bills made of Teflon? Precedent seems to weigh in favor of the latter approach, with most courts hesitant to impute the motives of one legislature to another. Indeed, two weeks before the decision in Carrillo-Lopez, the US District Court for the District of Oregon denied a motion to dismiss a §1326 indictment where the defendant had advanced an identical argument to the one described above.[19] While the court conceded that racism is an “invidious and, unfortunately, continuing presence in the United States” it held that the defendant had failed to overcome the presumption of good faith to which legislatures are entitled, which would require showing that §1326 itself was clearly enacted with discriminatory intent.[20] Other District Court decisions from the 9th Circuit have taken an even more hands-off approach, interpreting 9th Circuit precedent as requiring only rational-basis review for any federal immigration laws.[21]

Should the government follow through with its appeal of the Carrillo-Lopez ruling, and even assuming that the 9th Circuit accepts the equal protection argument, the case would face long odds in the Supreme Court. In Brnovich v. Democratic National Committee, the Court refused to impute discriminatory motives on the part of some Arizona legislators to the body, even when evidence of discrimination came from within the same legislative session where the law was written.[22] It seems unlikely that the Supreme Court would uphold the equal protection claim against §1326, since the district court’s opinion relies heavily on attributing the racism of the 1920’s to the 1952 Congress. Thus, while Judge Du’s opinion is inviting some much-needed introspection on the topic of U.S. immigration policy, lasting relief for §1326 defendants will likely require legislative action.

[1] 8 U.S.C 1326(a).

[2] Id.

[3] 8 U.S.C 1326(b).

[4] United States v. Carrillo-Lopez, Case No. 20-cr-00026-MMD-WGC, 2021 U.S. Dist. LEXIS 155741, 2021 WL 3667330, at 2 (D. Nev. Aug. 18, 2021).

[5] Id. at 7.

[6] Id. at 10.

[7] See id.

[8] See id.

[9] Id. at 11.

[10] Id. at 20.

[11] Id. at 18.

[12] Id. at 21.

[13] Abbott v. Perez, 138 S. Ct. 2305, 2313 (2018).

[14] Id.

[15] Id.

[16] United States v. Carrillo-Lopez, Case No. 20-cr-00026-MMD-WGC, 2021 U.S. Dist. LEXIS 155741, 2021 WL 3667330, at 22-23 (D. Nev. Aug. 18, 2021).

[17] Id. at 27.

[18] Id. at 64.

[19] See United States v. Machic-Xiap, Case No. 3:19-cr-407-SI, 2021 U.S. Dist. LEXIS 145037 (D. Or. Aug. 3, 2021).

[20] Id. at 8 (quoting Abbot v. Perez).

[21] See United States v. Bernal, Case. No. 21-CR-01817-TWR, 2021 U.S. Dist. LEXIS 178922 (S.D. Cal. Sept. 20, 2021); United States v. Orozco-Orozco, Case. No. 21-CR-02349-TWR, 2021 U.S. Dist. LEXIX 178951 (S.D. Cal. Sept. 20, 2021); United States v. Sanchez-Rodriguez, Case. No. 21-CR-02351-TWR, 2021 U.S. Dist. LEXIS 178896 (S.D. Cal. Sept. 20, 2021).

[22] 141 S. Ct. 2321, 2350-51 (2021).

Freeman (he/him) is a 2L and International Rule of Law and Security Fellow at the Sandra Day O’Connor College of Law. Freeman hopes to pursue a career in international law after graduation, either working working with NGOs or an intergovernmental organization. His interests include international dispute resolution, political law, and development. Freeman is an aspiring homebrewer and an avid skier.