United States v. Carrillo-Lopez is transforming immigration law: will it survive appellate review?

• Author: Nicole Newman
• Position: J.D. Candidate, 2023, Georgetown University Law Center; B.A. Anthropology, University of Michigan, 2020
• Pages: 869-873

UNITED STATES V. CARRILLO-LOPEZ IS

TRANSFORMING IMMIGRATION LAW: WILL IT

SURVIVE APPELLATE REVIEW?

NICOLE NEWMAN*

BACKGROUND

In United States v. Carrillo-Lopez, Judge Miranda M. Du declared 8 U.S.C.

§ 1326—which provides a felony for persons who have been deported to

reenter the United States

1

—an unconstitutional violation of the Fifth

Amendment’s Equal Protection Clause.

2

Defendant Gustavo Carrillo-

Lopez was indicted on one count under § 1326, but instead of denying the

charge brought against him, he attacked the statute as a violation of the

Equal Protection Clause of the Constitution.

3

A statute can violate the Equal Protection Clause in three ways.

4

First,

where a law is clearly discriminatory—that is, it discriminates “on its face.”

5

Second, law makers can apply a facially neutral law in a discriminatory man-

ner.

6

Third, there can be a facially neutral law that was both enacted with a

discriminatory purpose and disparately impacts a protected class.

7

Carrillo-

Lopez relies on the third approach. He argued that §1326 disparately impacts

Mexican and Latinx persons and further, that it was enacted in 1952 with pre-

cisely this purpose.

8

Carrillo-Lopez faced an up-hill battle given that

Congress has plenary power over the admission of aliens and the complete

and absolute power over the subject of immigration.

9

Additionally, a similar

attack on § 1326’s constitutionality failed fifteen days before the Carrillo-

Lopez decision.

10

Therefore, the question remains—although Carrillo-

* Nicole Newman, J.D. Candidate, 2023, Georgetown University Law Center; B.A. Anthropology,

University of Michigan, 2020.

1. § 1326 punishes not only those who have been deported, but also those who have been denied

admission, excluded, removed, or has departed the United States while an order of exclusion, deportation,

or removal is outstanding. See Elie Mystal, The Groundbreaking Decision That Just Struck a Blow to Our

Racist Immigration Laws, NATION (Oct. 14, 2021, 8:41 PM), perma.cc/798C-WHK3.

2. See § 1326; United States v. Carrillo-Lopez, 2021 WL 3667330, at *1 (D. Nev. 2021).

3. Carrillo-Lopez, at *1.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id. at *2.

9. ArtI.S8.C18.4.2.1 Implied Power of Congress Over Immigration: Overview, CONSTITUTION

ANNOTATED (Jan. 25, 2022, 10:33 AM), perma.cc/SNR9-PEWD.

10. United States v. Machic-Xiap, 2021 WL 3362738 (D. Or. 2021).

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