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Litigation News

Winter 2022, Vol. 47, No. 2

Roots of "Deported Alien" Statute Found Unconstitutional

Michael Stefanilo Jr


  • Criminal law enacted in 1952 to penalize deported persons found in the United States found to be based on racial animus.
  • A district court held that the law had a disparate impact on Latinx persons.
  • Section leaders agree with the court's analysis and believe it may open the door for other similar equal protection challenges.
Roots of "Deported Alien" Statute Found Unconstitutional
Oliver Strewe via Getty Images

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A federal district court has ruled that a provision of the Immigration and Nationality Act of 19528 U.S.C. § 1326 (a) and (b) (section 1326), criminalizing the presence of deported persons found in the United States, violates the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution. The U.S. District Court for the District of Nevada held not only that the law had a disparate impact on Latinx persons but also that it was at least partly motivated by discriminatory racial animus.

ABA Litigation Section leaders agree with the court’s analysis in light of strong data evidencing the law’s disparate impact on a particular race and evidence of racial animus in the legislative history and believe it may open the door for other similar equal protection challenges.

Equal Protection Framework Applicable to Criminal Immigration Laws

The defendant in United States of America v. Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of section 1326. He moved to dismiss the charge on the grounds that section 1326 violates the Equal Protection Clause under the 1977 landmark U.S. Supreme Court decision in Village of Arlington Heights v. Metropolitan Housing Development Corp., which set the standard of review for facially neutral laws enacted with a discriminatory purpose that disparately impact a protected group.

Under Arlington Heights, the defendant has the burden to demonstrate both disparate impact and that racially discriminatory intent or purpose “was a motivating factor in the decision.” The burden then shifts to the government to show that “the same decision would have resulted even had the impermissible purpose not been considered.”

The district court rejected the government’s argument that the more deferential rational basis standard of review should apply instead of Arlington Heights due to Congress’s plenary power over immigration law. The court distinguished decisions in the context of executive authority, noting the difference between the president’s expansive executive authority to address national security issues and the court’s own mandate to ensure equal protection under the law. Several other district courts had concluded similarly, applying Arlington Heights in other race-based immigration challenges.

“[G]reater protections under the Fifth Amendment ‘necessarily apply when the government seeks ‘to punish[] by deprivation of liberty and property,’” the court concluded, even if the underlying offense relates to immigration.

The Discriminatory Purpose Behind Section 1326

Having established that Arlington Heights was the appropriate standard of review, the court turned to the legislative intent behind section 1326. The defendant argued, and the government conceded, that discriminatory intent motivated the passage of the Undesirable Aliens Act of 1929 (UAA), the first law passed by Congress to criminalize unauthorized reentry into the country. Section 1326 borrowed language from the UAA “almost word for word.”

The government contended that the racial animus of the prior law could not be imputed to a different Congress in its adoption of the same language more than a decade later. The court disagreed, pointing to the fact that Congress adopted the language “without substantially changing the law and without debate or discussion of the invidious racism that motivated the Act of 1929, only to make it more punitive.”

In evaluating whether racial animus motivated the passage of the UAA, the court looked to historical background surrounding the statute. This included sworn testimony from Kelly Lytle Hernández, professor of history at the University of California, Los Angeles, who articulated “how immigration legislation and racism were intimately entwined in the 1920s.”

Professor Hernández testified about early quota systems reserving slots for European immigrants, which prompted arguments over whether immigrants from the Western Hemisphere should be exempted to satisfy those who relied on Mexican laborers. She also described a “Juan Crow” regime that developed during the 1920s, “a racialized subjugation system…that mirrors what [was] happening in the American South.” Against this backdrop, Hernández posited, the illegal reentry provision of the UAA was “intended to target Latinos.”

The court also considered legislative history surrounding the congressional debates over passage of the UAA and of section 1326 in 1952. According to Benjamin Gonzalez O’Brien, professor of political science at San Diego State University, “the contrast between extensive congressional debate about other national origin provisions and the comparative lack thereof around section 1326 suggests an acceptance of its history.”

Section 1326’s Disparate Impact

Although no publicly available data reflect the national origin of those prosecuted under section 1326, the defendant offered statistics from U.S. Customs and Border Protection apprehensions showing that 97 percent of persons apprehended at the border in 2000 were of Mexican decent, 86 percent in 2005, and 87 percent in 2010. Many, if not all, of these apprehensions ultimately led to prosecution under the Trump administration’s directives to prosecutors, the defendant argued. The court accepted this data and its comparison to other successful challenges under Arlington Heights to prove the requisite standard of disproportionality.

When the burden shifted to the government, it did not dispute that section 1326 “bears more heavily on Mexican and Latinx individuals.” But the prosecution attributed the disparate impact to geography as opposed to racial animus given Mexico’s proximity to the United States.

The district court was not persuaded, calling the government’s argument “circular and inconclusive.” Explaining that the test for disparate impact only requires evidence that section 1326 “bears more heavily on one race than another,” the court credited the defendant’s data as meeting this standard. It rejected the notion that “the mere over-policing of certain locations…prevents a specific group from raising equal protection challenges.”

In so holding, the court acknowledged that its decision departed from other rulings that applied the Arlington Heights standard of review but concluded that section 1326 was not unconstitutional. The court distinguished those decisions on the grounds that those courts either had not considered the full legislative history, had “blur[red] the defendant’s burden under Arlington Heights,” or had failed to consider the totality of the circumstances.

Congressional Intent and Constitutionality

While there was far less direct and circumstantial evidence to show that discriminatory animus was present when section 1326 was reenacted in 1952 versus its initial adoption in 1929, Litigation Section leaders were not surprised by the court’s exploration of the historical underpinnings of the earlier statute.

“Through a careful analysis of the history of this law and considering the historical perspective that informs the purpose of this statute, the court was able to determine what the true motivation of Congress was in enacting section 1326, which was racial bias,” opines Alexander Wharton, Memphis, TN, cochair of the Section’s Criminal Litigation Committee.

“The federal district court’s landmark decision in Carrillo-Lopez is a remarkable opinion,” agrees Nathan Pearman, Dallas, TX, cochair of the Section’s LGBT Law & Litigator Committee. “The willingness of Judge Du to dive into the legislative history regarding both the 1929 [UAA] bill and the 1952 reenactment to note that racist, nativist motivations dictated both the passage and reenactment is a remarkable development.”

Section leaders believe that the evidence of disparate impact gave the court more room to consider circumstantial historical narrative. “Once a disparate impact was shown to be the case, as it was here, analyzing the motivation of Congress in passing the law was the appropriate course,” Wharton explains. “Without statistical proof of a disparate impact, the court might have been more reluctant to venture into the intent behind the law—particularly the racial animus present at the time that the original version was enacted—but with disproportionality so established, the purpose of the law colors the conversation in an impactful way.”

The decision will likely have a broad reach, according to Section leaders. “The court’s disparate impact analysis opens the door to other equal protection challenges and, potentially, legislative and/or administrative solutions that would result in de-prioritizing criminal prosecutions for unauthorized entries and re-entries and ending prosecutions of migration-related offenses that deny individuals due process and the right to a fair hearing,” Pearman predicts.