Roots of 'Deported Alien' Statute Found Unconstitutional

• Date: 01 January 2022
• Author: Michael Stefanilo Jr.

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

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federal district court has

ruled that a provision of the

Immigration and Nationality

Act of 1952, 8 U.S.C.

§1326 (a) and (b) (sec-

tion 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 dis-

parate impact on a particular race and

evidence of racial animus in the legisla-

tive history and believe it may open the

door for other similar equal protection

challenges.

Equal Protec tion Framework

Applicable to Criminal

Immigratio n 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 deci-

sion 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 defen-

dant 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 impermis-

sible purpose not been considered.”

The district court rejected the gov-

ernment’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, not-

ing the difference between the presi-

dent’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 under-

lying 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 leg-

islative intent behind section 1326.

The defendant argued, and the govern-

ment conceded, that discriminatory

intent motivated the passage of the

Undesirable Aliens Act of 1929 (UAA),

the rst 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 sub-

stantially 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

By Michael Stefanilo J r., Litigation News Contributing Editor

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