Ninth Circuit Finds that Criminal Reentry Provision Not Driven by Racial Animus

The INA was not intended to ‘advance equity for all’, but Congress has endeavored to ensure it is fair

By Andrew R. Arthur on May 24, 2023

A three-judge panel of the Ninth Circuit this week reversed a district court decision finding the criminal reentry provision in section 276 of the Immigration and Nationality Act (INA) “was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons” and that the government had failed to show that the provision would not “have been enacted absent racial animus”. It’s a triumph of law and common sense over a results-oriented determination that had cherry-picked the legislative record, and one that the president’s immigration advisors should take note of.

The Facts. The case is a criminal matter captioned U.S. v. Carrillo-Lopez, and the defendant — Gustavo Carrillo-Lopez — is a citizen of Mexico.

He had been removed from the United States on two occasions, first in 1999 and again in 2012. Prior to that 2012 removal, Carrillo-Lopez had been convicted of an unspecified felony drug possession offense, as well as a misdemeanor offense for infliction of corporal injury on a spouse.

At some point after he was removed, he returned illegally to the United States. For reasons unclear from either decision, his residence was searched in June 2019 and officers found “two firearms and plastic bags containing methamphetamine, cocaine, and heroin”. He subsequently pled guilty to a single drug-trafficking count, although again it is unclear whether that was a state or federal charge.

It was likely a state charge, because thereafter Carrillo-Lopez was indicted on federal charges in Nevada for illegal reentry under section 276 of the INA, with a sentence enhancement for his prior convictions.

Section 276 of the INA. Section 276(a) of the INA states:

(a) In general — Subject to subsection (b), any alien who-

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, 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 denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,

shall be fined under title 18, or imprisoned not more than 2 years, or both.

On its face, the provision is neutral with respect to nationality, race, gender, or any other immutable factor. The only prerequisites for application of the criminal penalties therein are that the alien have been removed under an order of removal and have reentered without permission.

As an important aside, note that those criminal penalties apply not only to an alien apprehended reentering the United States, but also to an alien “at any time found in” this country after removal. The circuit court quoted prior Ninth Circuit precedent, which explained this is “a ‘continuing’ offense that ‘commences with the illegal entry, but is not completed until’ the defendant is discovered”.

Keep that in mind the next time that you hear that aliens who have entered the United States illegally aren’t committing an ongoing criminal act in remaining here. In the case of previously removed aliens, that’s not true because the crime — a felony — continues.

Orders of removal traditionally have been entered into the National Crime Information Center (NCIC) database, and thus will pop up when a state or local cop encounters such individuals. When sanctuary jurisdictions refuse to inform immigration authorities of the presence of such individuals they encounter, they are essentially shielding criminals in the act of a federal felony offense.

The District Court Decision. In his federal criminal proceedings at the district court, Carrillo-Lopez moved to dismiss the charges against him on the ground that section 276 violates the Fifth Amendment because it discriminates against Mexicans and other Central and South Americans.

In August 2021, the judge hearing the case, Chief Judge Miranda Du of the U.S. District Court of the District of Nevada, issued a decision in which she concurred with the defendant’s arguments.

Specifically, she found that section 276 of the INA: has a “disparate impact on Latinx individuals”; that the predecessor criminal ground for illegal reentry after deportation was first included in the Undesirable Aliens Act of 1929 (1929 Act), a law that “was first enacted with a racially discriminatory purpose”; that the INA of 1952 — the source for much of the current section 276 of the INA, “adopts language from the Act of 1929 almost word for word”; and that “the 1952 reenactment” of section 276 “did not cleanse” it of what she termed “its racist origins and was also motivated by discriminatory intent”.

Note that it appears immigrant advocates had peddled similar claims to other district court judges, each of which had rejected them. Judge Du nonetheless pressed ahead, disagreeing with those courts’ conclusions.

Finally, she rejected the government’s argument that section 276 of the INA “would have been enacted absent the discriminatory motivation”.

The Circuit Court Disagrees. The Ninth Circuit reversed, finding that Carrillo-Lopez had failed to carry his burden of showing that section 276 of the INA violated Fifth Amendment equal protection guarantees and was thus facially invalid, and concluding that Judge Du “erred factually and legally in holding otherwise”.

Note that Judge Du in her decision had taken a dive into selected legislative documents related to the 1929 Act, the INA of 1952, and the provision in question, but nowhere near as deeply as the three-judge panel did in its 39-page opinion.

It went all the way back to the (925-page) 1947 Senate report that formed the basis for the 1952 act, itself a survey of immigration law to that point.

In discussing the characteristics of the U.S. population in Part 1 of that report, the Senate did include “an overview of specified characteristics of different population groups in the Americas, including Canadians and Mexicans”, but the circuit panel noted that each of the “sections all followed the same template for each population group”.

Much of that Senate report examined the then-existing immigrant “national-origin quota” system (which did not apply to nationals of Western Hemisphere countries), a system, as the circuit court found, the report acknowledged to be “controversial because some opponents labeled it as ‘discriminatory in the treatment of certain nationalities of Europe’”.

Later congressional debates on the 1952 act, the circuit panel explained, “focused on the national-origin quota system”, which critics — as the court noted — decried as “arbitrary because it favored the ‘so-called Nordic strain’ of immigrants but disfavored ‘people from southern or eastern Europe’”.

What those debates failed to mention, the circuit court noted, was either the criminal reentry provision at issue or the (similar and related) criminal prohibition against improper entry in section 275 of the INA.

The district court had made much of the fact that the 1952 act was passed over then-President Truman’s veto, explaining: “The Court does not rely solely on the evidence from 1929, but also considers contemporaneous evidence from 1952” including “Congress’ failure to revise” the 1952 act “in the face of President Truman's veto statement calling for a reimagination of immigration policy”.

The circuit court noted, however, that Truman’s veto statement largely focused on the continuing “national origins quota system”, although he had no problem with quotas generally. Specifically, he complained that “the system perpetuated by the bill discriminated against people of Southern and Eastern Europe, in favor of immigrants from England, Ireland, and Germany, which” he “argued was improper both on moral and political grounds”.

As the circuit panel underscored, however: “President Truman did not mention Mexicans or other Central and South Americans, to whom the national-origin quota system did not apply. Nor did he mention the provision criminalizing reentry, Section 276”.

The circuit also rejected the district court’s finding that the 1952 version of the criminal reentry provision was basically just a cut-and-paste version of the 1929 provision, finding there were significant differences between the two.

In any event, the circuit panel disagreed that Carrillo-Lopez’s selected reference to the legislative documents surrounding the enactment of the 1952 act evidenced Congress’s “desire to discriminate against Mexicans or other Central and South Americans”.

Similarly, it abjured his contentions that the 1929 act “tainted” the 1952 INA, specifically noting that “the Supreme Court has rejected the argument that a new enactment can be deemed to be tainted by the discriminatory intent motivating a prior act unless legislators expressly disavow the prior act’s racism”.

Lastly, it discounted the defendant’s argument that section 276’s “disproportionate impact on Mexicans and other Central and South Americans is evidence that Congress was motivated by a discriminatory intent in enacting the statute”, first because “disproportionate impact on an identifiable group is generally not adequate to show a discriminatory motive”, and second on the ground that the evidence he had presented to show that Congress knew of and intended such impact in drafting section 276 “is highly attenuated”.

Even if Carrillo-Lopez had shown that section 276 of the INA had such an impact on such groups, the circuit court continued, “he would still not carry his burden of showing that Congress enacted” section 276 “because of its impact on this group, because the clear geographic reason for disproportionate impact on Mexicans and other Central and South Americans undermines any inference of discriminatory motive”.

Put plainly, it’s a lot easier for such nationals to reenter the United States illegally than it is for citizens of countries outside the Western Hemisphere to reenter. Thus, “The district court clearly erred when it relied on the evidence of disproportionate impact without further evidence demonstrating that racial animus was a motivating factor in the passage of the INA”.

In support, the circuit court referenced the Supreme Court’s 2020 decision in DHS v. Regents (the DACA case) for the proposition that “Latinos make up a large share of the unauthorized alien population” and thus “virtually any generally applicable immigration policy could be challenged on equal protection grounds”.

Congress — this or any prior one — is entitled to a “strong ‘presumption of good faith’” in its statutory enactments, which the district court failed to accord the 1952 Congress. Instead, Judge Du “construed evidence in a light unfavorable to Congress, including finding that evidence unrelated to” section 276 “indicated that Congress enacted that provision “due to discriminatory animus against Mexicans and other Central and South Americans”.

On these bases, the circuit court reversed.

The White House Should Take Note. Although it would likely argue to the contrary, the current administration is following wildly different immigration and border policies than any of its predecessors. It ignores congressional detention mandates, hobbles ICE enforcement in the interior, and refuses to use the tools Congress gave it to deter illegal immigration in favor of providing aliens with “safe, orderly, and legal pathways ... to be able to access our legal system” — regardless of congressional immigration limits.

No one in the Biden administration, however, has ever explained why it has adopted such policies. That has led to conjectures by Biden’s critics that the president’s supporters have, in turn, attacked as evidencing animus in the same manner that Carrillo-Lopez criticized section 276 of the INA.

As I have previously asserted, however, the most logical explanation for those Biden policies is that the president and his advisors believe that the INA is inherently inequitable and discriminatory, again as Carrillo-Lopez argued.

This is not rank speculation. Consider the following from a DHS document that supports the limits that the administration has placed on interior enforcement:

On his first day in office, President Biden affirmed that "advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government." In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration's stated commitment to "advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality." [Footnotes omitted.]

By its terms and intent, the INA restricts the number and classes of foreign nationals who are allowed to live and work in the United States.

That is deliberate because, as Barbara Jordan explained in 1994, “this country must set limits on who can enter and back up these limits with effective enforcement of our immigration law” to ensure that our nation can “manage immigration so it continues to be in the national interest”.

If it is “applied” in any sense of the term, the Immigration and Nationality Act will never “advance equity for all” because by its terms it’s not supposed to — and never could anyway. But to its significant credit, Congress has endeavored over the past 71 years to amend the act to serve the interests of the American people free from animus and discrimination, as the Ninth Circuit held on Monday it has done.