In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-3285 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.
ALFREDO VIVEROS-CHAVEZ, Defendant-Appellant. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:21-cr-00665 — Matthew F. Kennelly, Judge. ____________________
ARGUED SEPTEMBER 27, 2023 — DECIDED AUGUST 15, 2024 ____________________
Before SYKES, Chief Judge, and FLAUM and LEE, Circuit Judges. LEE, Circuit Judge. Alfredo Viveros-Chavez, a Mexican cit- izen who had previously been removed from the United States, was found again in the country without lawful immi- gration status. The government charged him with violating 8 U.S.C. § 1326, which forbids noncitizens from reentering the United States without authorization. Seeking to dismiss the indictment, Viveros-Chavez argued that § 1326 violates the 2 No. 22-3285
Fifth Amendment’s guarantee of equal protection because it was enacted with discriminatory intent and disproportion- ately impacts Mexican and Latino individuals. The district court disagreed, finding insufficient evidence that racial ani- mus motivated the statute’s enactment. Viveros-Chavez ap- peals, contesting the district court’s reading of the statute’s history. For the reasons below, we affirm. I. Background Viveros-Chavez, a Mexican citizen without legal status in the United States, was arrested in 2019 and convicted of fel- ony aggravated robbery in Cook County, Illinois. Because he had already been removed from the United States twice be- fore, he was charged with unlawful reentry in violation of 8 U.S.C. § 1326(a). Viveros-Chavez moved to dismiss the in- dictment, claiming that the statute violates the Fifth Amend- ment. In support, Viveros-Chavez argued that § 1326, which was enacted as part of the Immigration and Nationality Act (INA) in 1952, was incurably tainted by the racist sentiments that led to the passage of its predecessor, the Undesirable Al- iens Act of 1929 (UAA), the first federal law to ban reentry. 1 He also presented data that, he claimed, demonstrated the statute’s enforcement disproportionately impacted Mexicans and Latinos. The district court denied the motion. In doing so, the court applied the discriminatory-intent framework the Supreme
1 Since Congress enacted the INA, the relevant provision has under-
gone numerous amendments, the substance of which are not relevant to this appeal. See United States v. Sanchez-Garcia, 98 F.4th 90, 95 n.2 (4th Cir. 2024) (describing amendments). For ease of reference, we will refer to the UAA by its name and the provision contained in the INA as § 1326. No. 22-3285 3
Court articulated in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), rather than rational ba- sis review (which the government favored). The court then considered the circumstances surrounding the enactment of the UAA as well as § 1326. Ultimately, the district court agreed with Viveros-Chavez that the passage of the UAA was motivated by racial animus. However, it found little evidence that racial targeting was be- hind the enactment of § 1326. And, to the extent that certain legislators had expressed racially derogatory statements around the time of § 1326’s enactment, the court concluded that the isolated comments did not speak to Congress’s over- all intent in passing the law. Finally, the district court was un- persuaded by Viveros-Chavez’s statistical analysis, noting the lack of any evidence that the government targeted Mexican and Latino individuals for illegal reentry prosecutions at a disproportionate rate. After the adverse ruling, Viveros-Chavez entered a condi- tional guilty plea pursuant to Federal Rule of Criminal Proce- dure 11(a)(2), preserving his right to appeal the denial of his motion to dismiss. This appeal followed. II. Standard of Review We review a district court’s decision on the constitutional- ity of a criminal statute de novo. United States v. Bass, 325 F.3d 847, 849 (7th Cir. 2003). And we review findings of fact inci- dent to that determination for clear error. Abbott v. Perez, 585 U.S. 579, 607 (2018); United States v. Boyce, 742 F.3d 792, 794 (7th Cir. 2014). 4 No. 22-3285
III. Analysis The Fifth Amendment provides that no person should be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Although not explicit in the text, the Supreme Court has construed the amendment to “con- tain[] an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.” Washington v. Davis, 426 U.S. 229, 239 (1976). A law that explicitly discriminates on the basis of race is “subjected to the strictest scrutiny and [is] justifiable only by the weight- iest of considerations.” Id. at 242. Similarly, a facially neutral law fails constitutional muster if “there is proof that a discrim- inatory purpose has been a motivating factor” in its enact- ment. Arlington Heights, 429 U.S. at 267. Viveros-Chavez argues that § 1326 is unconstitutional be- cause it discriminates against Mexican and Latino individuals in violation of the equal protection guarantee of the Fifth Amendment. In support, he points to congressional state- ments leading to the 1929 passage of the UAA, events sur- rounding the 1952 enactment of the INA, and statistics indi- cating that Mexicans and Latinos comprise the vast majority of individuals charged with illegal reentry under § 1326. Our analysis proceeds as follows. First, we consider the proper deference to afford Congress when reviewing the con- stitutionality of § 1326, which in turn determines the scope of our review. Next, we discuss the history surrounding the en- actment of the UAA and the relevance of that history to § 1326. Finally, we evaluate the constitutionality of § 1326 it- self. In doing so, we consider § 1326’s legislative history and examine whether the district court erred in rejecting Viveros- Chavez’s disparate impact evidence. No. 22-3285 5
In the end, we join our sister circuits in concluding that § 1326 does not violate the Fifth Amendment’s guarantee of equal protection. See, e.g., United States v. Barcenas-Rumualdo, 53 F.4th 859, 862 (5th Cir. 2022); United States v. Carrillo-Lopez, 68 F.4th 1133, 1138 (9th Cir. 2023); United States v. Wence, No. 22-2618, 2023 WL 5739844, at *1 (3d Cir. Sept. 6, 2023); Sanchez- Garcia, 98 F.4th at 94. A. Deference to Congress The parties first dispute the proper deference to afford Congress when examining the constitutionality of § 1326. The government urges us to evaluate the law under rational basis review because the statute concerns immigration, an area where courts typically defer to the political branches. See, e.g., Mathews v. Diaz, 426 U.S. 67, 82 (1976) (noting that courts should apply a “narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization”). By contrast, Viveros-Chavez argues that we should consider the statute under the test the Supreme Court established in Arlington Heights, which, he points out, the Court has utilized recently in the immigration setting. See, e.g., Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 34–35 (2020). There is something to be said for both positions. Sec- tion 1326 penalizes unlawful entry into the country, and Con- gress rightly deserves deference to make decisions concerning the matriculation of noncitizens. On the other hand, § 1326 is not an immigration statute per se because it says nothing about who gets admitted or deported. It is perhaps better viewed as a criminal statute that affects the rights of those persons found and prosecuted within the United States. 6 No. 22-3285
For present purposes, we will assume that the less-defer- ential and more rigorous Arlington Heights standard applies, because if § 1326 overcomes this hurdle, it would certainly survive rational basis review. See, e.g., Sanchez-Garcia, 98 F.4th at 98 (“[W]e can leave for another day a definitive resolution of the standard of review question and proceed to an analysis under the familiar Arlington Heights framework.”). B. The 1929 UAA Viveros-Chavez’s primary argument on appeal is that the district court erred by discounting the racial animus under- pinning the 1929 passage of the UAA. Citing the Supreme Court’s decision in Abbott, Viveros-Chavez asserts that what- ever racial animus motivated the enactment of the UAA should also be imputed to the passage of § 1326. This is so, he contends, because the discriminatory intent behind a preced- ing law should carry over to its successor unless Congress en- gages in a deliberative process to remove the “taint” of racial animus. That the legislative history of the UAA contains many statements denigrating Mexicans is beyond dispute. The leg- islation itself was meant to be a compromise between hardline nativists, who wanted to exclude Mexican immigrants en- tirely, and business interests in the agricultural, mining, and construction industries in need of Mexican labor. See Decl. of Prof. Benjamin Gonzalez O’Brien (ECF No. 24-2) at 11; see also David Gutierrez, Walls and Mirrors: Mexican Americans, Mexi- can Immigrants, and the Politics of Ethnicity 40, 43 (1995). This tension is reflected in the congressional record. During the floor debate, for example, one congressman stated that Mexi- can immigrants were “poisoning the American citizen” be- cause they are “of a class” that is “very undesirable.” 70 Cong. No. 22-3285 7
Rec. 3619–20 (1929) (statement of Rep. Fitzgerald). And an- other complained that Mexican immigrants were entering the country in “hordes.” 70 Cong. Rec. 3619 (1929) (statement of Rep. Blanton); see also United States v. Calvillo-Diaz, No. 21-CR- 445, 2022 WL 1607525, at *6 (N.D. Ill. May 20, 2022) (discuss- ing evidence of discriminatory intent pertaining to the UAA). But it is no small thing to find that a law duly enacted by Congress was motivated by racial animus. And “[d]etermin- ing whether invidious discriminatory purpose was a motivat- ing factor demands a sensitive inquiry into such circumstan- tial and direct evidence of intent as may be available.” Arling- ton Heights, 429 U.S. at 266; see United States v. O’Brien, 391 U.S. 367, 383 (1968) (observing that “[i]nquiries into congressional motives or purposes are a hazardous matter”). Moreover, we keep in mind that the statements of one or two legislators without more may not be probative of the intent of the entire body. See O’Brien, 391 U.S. at 384 (“What motivates one legis- lator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are suffi- ciently high for us to eschew guesswork.”). Here, the evidence certainly suggests that racial antipathy animated much of the debate in 1929. And, where it is neces- sary for a court to make a finding of racial animus (or the lack thereof) on the part of a legislature to resolve a claim, it should not hesitate to do so after carefully considering the ev- idence in fulfillment of its constitutional responsibility. See, e.g., Hunter v. Underwood, 471 U.S. 222 (1985). But, for reasons that will become plain, that is not the case here. And so, we proceed by assuming for argument’s sake that the passage of the UAA was motivated by racial animus to- wards Mexican and Latino immigrants. But the pertinent 8 No. 22-3285
question is this: how relevant are the statements in 1929 to the enactment of the INA in 1952? To Viveros-Chavez, they mat- ter a great deal. But we are not persuaded. Consider Viveros-Chavez’s reliance on Abbott. That case involved a challenge to a Texas redistricting plan. Abbott, 585 U.S. at 585. The legislature had enacted one in 2011, but the plan was immediately challenged as being racially discrimi- natory. Id. at 587. While the litigation was pending, the legis- lature adopted a new redistricting plan in 2013. Id. at 588. A three-judge panel found the new plan unconstitutional, con- cluding that the legislature had failed to purge the discrimi- natory “taint” that allegedly had animated the passage of the 2011 plan. Id. at 592. Overturning the panel, the Supreme Court expressly re- jected the conclusion Viveros-Chavez asks us to reach. See W. Kerrel Murray, Discriminatory Taint, 135 Harv. L. Rev. 1190, 1204 (2022) (noting that the Abbott Court “blasted the idea that ‘taint’ associated with Texas’s 2011 redistricting maps deter- mined the validity of 2013 maps based (in part) on the 2011 maps”). In doing so, the Court held that a state legislature is entitled to a “presumption of legislative good faith” when re- districting, and challengers must show that the enacting body “acted with invidious intent.” Abbott, 585 U.S. at 603, 605. The actions of a previous legislature may be relevant “to the extent that they naturally give rise to—or tend to refute—inferences regarding the intent of the [enacting legislature],” but it is just “one evidentiary source relevant to the question of intent.” Id. at 607. What counts is the motivation of the legislature that passed the law in question. Despite this, Viveros-Chavez directs us to three Supreme Court cases to support his theory that the discriminatory No. 22-3285 9
purpose behind a law must be imputed wholesale to a succes- sor statute—Hunter, 471 U.S. at 229; Ramos v. Louisiana, 590 U.S. 83 (2020); and Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464 (2020). But none of these cases help him. In Hunter, the Supreme Court considered the constitution- ality of a provision in the Alabama Constitution that disfran- chised persons convicted of crimes involving moral turpi- tude. 471 U.S. at 225. Even though the provision was racially neutral (other courts had already voided some of the more “blatantly discriminatory” sections, such as one concerning miscegenation), the Supreme Court held that the “original en- actment was motivated by a desire to discriminate against blacks on account of race” and thus violated the Fourteenth Amendment’s Equal Protection Clause under Arlington Heights. Id. at 233. Seeking to come within Hunter’s ambit, Viveros-Chavez argues that Congress in 1952 “explicitly intended to keep [the UAA] with discrete technical modifications.” As a result, he continues, the 1952 Congress merely recodified the UAA as § 1326 with only minor modifications. And where a statute was motivated by racial animus, he concludes, Hunter re- quires that its subsequent iterations be diagnosed with the same malady. This misreads Hunter. The constitutional provision in question there had remained unchanged from its ratification. Certainly, other portions of the applicable section had been nullified by courts on constitutional grounds, but the Su- preme Court trained its gaze on the intent of the constitutional convention that adopted the provision at issue. 10 No. 22-3285
Ramos is similarly unavailing. In that case, the Supreme Court considered a challenge to provisions in the Louisiana and Oregon constitutions that permitted nonunanimous jury verdicts for serious crimes. 590 U.S. at 88. In finding that these sections violated the Sixth Amendment, the Court abrogated a prior decision that had blessed these provisions. See Apodaca v. Oregon, 406 U.S. 404 (1972). It did so because, among other things, Apodaca failed to consider “the racially discriminatory reasons that Louisiana and Oregon adopted their peculiar rules in the first place.” Ramos, 590 U.S. at 99 (emphasis re- moved). Seizing on this language, Viveros-Chavez argues that the original sin of racial animus cannot be washed away by recodifying a law. But the Supreme Court in Ramos was primarily concerned with Apodaca’s functionalist approach to constitutional analy- sis and its perfunctory acceptance of the benefits of nonunan- imous verdicts without any acknowledgement of the down- falls. Id. at 100. Nothing in Ramos suggests that the racial ani- mus of one legislature must be imputed to the next. Similarly, Espinoza offers Viveros-Chavez no assistance. There, the Supreme Court considered a Montana constitu- tional provision that barred government funding for religious schools. Espinoza, 591 U.S. at 482. While the opinion acknowl- edged that similar state “no-aid” provisions arose from a “checkered tradition,” the Court did so only as part of its dis- cussion regarding the history of the Free Exercise Clause. Id. Aside from these cases, Viveros-Chavez’s wholesale-im- putation theory falls short for a separate reason—§ 1326 was not a mere recodification of the UAA as he suggests. First, § 1326 was intended to replace the reentry proscriptions con- tained in three separate statutes. See Carrillo-Lopez, 68 F.4th at No. 22-3285 11
1147 n.9 (quoting United States v. Mendoza-Lopez, 481 U.S. 828, 835 (1987)). Furthermore, as the district court aptly observed, there are material differences between § 1326 and the UAA. For example, the UAA prohibited reentry only for individuals who had been deported from the United States. See Act of Mar. 4, 1929, Pub. L. No. 70-1018, 45 Stat. 1551. In comparison, Congress expanded the law to encompass noncitizens who had been “denied admission” prior to entering the United States. 8 U.S.C. § 1326(a). The new law also added language permitting prosecutors to charge immigrants “found in” the United States, rather than those who just attempted to reenter. Id. § 1326(b); compare Act of Mar. 4, 1929, Pub. L. No. 70-1018, 45 Stat. 1551 (imposing a felony on individuals who had been “arrested and deported” and then later “enter[] or attempt[] to enter” the country), with 8 U.S.C. § 1326 (criminalizing when an individual who has previously been denied admis- sion or deported later “enters, attempts to enter, or is at any time found in, the United States”). This made it easier for the government to identify the proper forum to prosecute alleged violators. In addition, § 1326(b) permitted a noncitizen to reenter the country by obtaining the Attorney General’s writ- ten consent in advance. Id. These significant changes reflect the fact that the INA was not a mere recodification of the UAA’s statutory scheme, but a “broad reformulation of the nation’s immigration laws.” Carrillo-Lopez, 68 F.4th at 1151. Thus, while the racial motiva- tions of the 1929 legislature may be a relevant data point, the sheer breadth and purpose of the INA severely undercut the notion that the legislative motivations in 1929 should be im- ported fully to 1952. 12 No. 22-3285
C. Section 1326’s Constitutionality We have assumed that Arlington Heights governs Viveros- Chavez’s constitutional claims and have determined that the legislative motivations in 1929 may be relevant to his claim but are not dispositive. We now consider § 1326 itself. As noted, when challenging a law for violating equal pro- tection, the plaintiff bears the burden of demonstrating that “discriminatory purpose was a motivating factor” in the chal- lenged action’s passage. Arlington Heights, 429 U.S. at 266. In assessing such a claim, a court must conduct a “sensitive in- quiry into such circumstantial and direct evidence of intent as may be available.” Id. Relevant evidence includes the histori- cal background of the law’s enactment, the events leading up to the enactment, the legislative history, and any procedural or substantive departures from the normal legislative process. See id. at 267–68. Moreover, whether the legislation in ques- tion “bears more heavily on one race than another,” Davis, 426 U.S. at 242, is an “important starting point,” but “impact alone is not determinative.” Arlington Heights, 429 U.S. at 266. Here, the district court made certain findings regarding the evidence and Congress’s motivations underlying § 1326. The parties disagree as to the appropriate standard of review for these conclusions. The government believes that the ques- tion of motivation is purely factual and the district court’s finding should only be reversed for clear error. Viveros- Chavez, however, points to our decision in United States v. D.F. and contends that “the ultimate question of whether [his- torical] facts satisfy the relevant standard [is] a mixed ques- tion of fact and law that ought to be subject to independent appellate review.” 115 F.3d 413, 415 (7th Cir. 1997). No. 22-3285 13
The government has the better argument. In Abbott, the Su- preme Court stated unequivocally that “a district court’s find- ing of fact on the question of discriminatory intent is reviewed for clear error.” 585 U.S. at 607. Our decision in D.F. not only predates Abbott, but it concerns the standard of review when a district court determines that certain facts satisfy a particu- lar legal standard, i.e., a mixed question of fact and law. See D.F., 115 F.3d at 415. Such is not the case here. Indeed, every appellate court to have considered the constitutionality of § 1326 has applied clear error when reviewing a district court’s finding regarding racial animus. See, e.g., Carrillo- Lopez, 68 F.4th at 1153 (“We hold that the district court clearly erred in its finding that Congress’s enactment of § 1326 was motivated in part by the purpose of discriminating against Mexicans or other Central and South Americans.”); Sanchez- Garcia, 98 F.4th at 97 (“We review the district court’s factual findings – including its findings as to whether § 1326 is moti- vated by a racially discriminatory purpose – for clear error.”). With that, we turn to the evidence at hand. 1. Section 1326 Congress passed the INA in 1952, overcoming a veto from President Harry Truman. See Sanchez-Garcia, 98 F.4th at 95. The statutory scheme arose from a comprehensive five-year Senate evaluation of the immigration system and was Con- gress’s attempt to overhaul the patchwork of immigration laws that previously had governed entry into the country. See generally S. Rep. No. 1515 (1950); see also Carrillo-Lopez, 68 F.4th at 1143–45 (describing the Senate Report). The debate surrounding the passage of the INA primarily focused on national-origin quotas that did not impact 14 No. 22-3285
immigrants from Mexico and Central American countries. Sanchez-Garcia, 98 F.4th at 101. In fact, the only mention of the provision criminalizing reentry in the legislative history ap- pears in a letter from Deputy Attorney General Peyton Ford to the Senate Judiciary Committee. Letter from Peyton Ford, Deputy Att’y Gen., to Sen. Pat McCarran, Chairman of the Comm. on the Judiciary (May 14, 1951). This letter discussed “overcom[ing] the inadequacies in existing law” by allowing prosecutors to charge immigrants without determining the lo- cation of reentry. Id. The provision was not debated in Con- gress, and because of this, there is scant evidence that Con- gress considered how § 1326 would affect immigrants from Mexico or other Central American countries. See Sanchez-Gar- cia, 98 F.4th at 101 (“Congress never even considered what ef- fect § 1326 might have on the Mexican and Central American immigrants the defendants claim it targeted because of their race.”); Carrillo-Lopez, 68 F.4th at 1146 (“There was no discus- sion of [§ 1326’s] impact on Mexicans or other Central and South Americans.”). Given the dearth of relevant legislative history, Viveros- Chavez gathers a patchwork of evidence to prove racial ani- mus. For example, Representative Thomas Jenkins stated that the congressional debates were “reminiscent” of the passage of the UAA when Congress wanted to “keep away from our shores the thousands of undesirables just as it is their wish now.” 98 Cong. Rec. 4442 (1952). Representative John Wood remarked that “Western European races have made the best citizens in America.” 98 Cong. Rec. 4314 (1952). Senator Wal- ter George recounted that the reason Congress passed prior immigration laws was “to preserve something of the homo- geneity of the American people.” 98 Cong. Rec. 5774 (1952). But, while such statements demonstrate the antipathy these No. 22-3285 15
men may have had for immigrants generally, they were dis- cussing other provisions of the bill that did not target Mexican and Latino immigrants. There were statements, however, that were directed at in- dividuals from Mexico. Senator Pat McCarrran, for instance, noted that the revisions to current immigration laws were needed “to meet the wetback situation.” 97 Cong. Rec. 5320 (1952); see also Wetback, Webster’s New World Dictionary, College Edition (1958) (defining “wetback” as “a Mexican agricultural laborer who illegally enters or is brought into the United States to work” and noting the term comes from “the fact that many cross the border by swimming or wading into the Rio Grande”). The term “wetback” also appears in the Ford letter, which observed that searches on private property would “aid in taking action against the conveyors and receivers of the wetback.” Letter from Peyton Ford, Deputy Att’y Gen., to Sen. Pat McCarran, Chairman of the Comm. on the Judiciary (May 14, 1951). Furthermore, in 1952, Congress also criminalized the sheltering or transport of illegal immigrants at the south- ern border by passing Public Law 283, which was colloquially referred to as the “Wetback Bill.” See Pub. L. No. 82-283, 66 Stat. 26 (1952); Decl. of Prof. Benjamin Gonzalez O’Brien (ECF No. 24-2) at 17. But Viveros-Chavez overstates the relevance of this evi- dence. McCarran did advocate for legislative modifications to prevent illegal immigration from Mexico, but those changes concerned parts of the legislation that punished American cit- izens who assisted illegal immigrants. See 98 Cong. Rec. 5320 (1952). McCarran never mentioned the issue of reentry. Ford was merely quoting from another report that addressed an entirely different provision of the INA. And Public Law 283 16 No. 22-3285
was passed months before the INA and did not target immi- grants, but those who assisted illegal entry into the country. See Pub. L. No. 82-283, 66 Stat. 26 (1952) (reciting the Act’s purpose to “assist in preventing aliens from entering or re- maining in the United States illegally”). To our knowledge, no legislator used “wetback” when discussing reentry proscrip- tions in general or § 1326 in particular. Finally, Viveros-Chavez contends that President Truman’s veto statement proves Congress’s discriminatory intent. The statement says, in relevant part: [The INA is] a mass of legislation which would perpetuate injustices of long standing against many other nations of the world, hamper the ef- forts we are making to rally the men of East and West alike to the cause of freedom, and intensify the repressive and inhumane aspects of our im- migration procedures. The price is too high, and in good conscience I cannot agree to pay it. Harry S. Truman, Veto of Bill to Revise the Laws Relating to Im- migration, Naturalization, and Nationality, Harry S. Truman Li- brary (June 25, 1952), https://www.trumanlibrary.gov/li- brary/public-papers/182/veto-bill-revise-laws-relating-immi- gration-naturalization-and-nationality. The problem with this theory is that President Truman’s veto statement says nothing about targeting Mexican or La- tino individuals, nor does it mention § 1326. In fact, President Truman was expressing his concern with the INA’s quota sys- tem that restricted immigration from Asian countries. See id. (“I cannot take the step I would like to take, and strike down the bars that prejudice has erected against them, without … No. 22-3285 17
establishing new discriminations against the peoples of Asia and approving harsh and repressive measures directed at all who seek a new life within our boundaries.”). All told, the district court considered all of this evidence and found that it was “insufficient to support a finding of dis- criminatory intent” in the enactment of § 1326. We see no clear error in this conclusion. 2. Disparate Impact Viveros-Chavez attempts to bolster his argument by pre- senting statistical evidence that, he says, demonstrates that § 1326 “bears more heavily on one race than another.” Arling- ton Heights, 429 U.S. at 266 (citation omitted). If he is right, this is another fact in “the totality of the relevant facts” that a court must consider in its intent analysis. Davis, 426 U.S. at 242. When considering the racial impact of a particular law, courts often look to data comparing how individuals in a pro- tected class are affected differently from those in a similarly situated, nonprotected group. See, e.g., id. at 233–35 (evaluat- ing evidence that a police department’s written personnel test excluded a disproportionately high number of Black appli- cants compared to white applicants). Here, such evidence would include statistics showing how the enforcement of § 1326 disproportionately impacted immigrants from Mexico and Latin American countries as compared to immigrants from other regions. To this end, Viveros-Chavez cites to data showing that, during the 2020 fiscal year, 99.1% of unlawful reentry offend- ers prosecuted under § 1326 were Mexican or Latino. But, as the district court observed, Viveros-Chavez offers no data as to what percentage of noncitizens subject to prosecution 18 No. 22-3285
under § 1326, who entered the United States in 2020, were Mexican or Latino (versus any other group). The absence of this information renders any meaningful comparison impos- sible. The Supreme Court’s analysis in Regents is instructive. There, the plaintiffs argued that the administration’s recission of the Deferred Action for Childhood Arrivals (DACA) pro- gram infringed upon the Fifth Amendment’s guarantee of equal protection because it disproportionately impacted Lati- nos from Mexico, who made up 78% of DACA recipients. 591 U.S. at 34. But the Court rejected this reasoning, noting that, “because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an out- sized share of recipients of any cross-cutting immigration re- lief program.” Id. Without any comparative data that Latino DACA recipients were treated differently than non-Latino DACA recipients, the Court noted, “virtually any generally applicable immigration policy could be challenged on equal protection grounds.” Id. In much the same way, Viveros-Chavez presents no data regarding what percentage of those who illegally reentered the country in 2020 were Mexican or Latino, a fact that is nec- essary to gauge disparate impact. For example, if Mexicans and Latinos comprised only 25% of total illegal reentrants in 2020, but 99.1% of those charged, the numbers would be more compelling. On the other hand, the evidence would be less alarming if 99% of noncitizens, who illegally reentered the country in 2020, were Mexican or Latino individuals. The rec- ord is devoid of such information. Viveros-Chavez instead tries to fashion a disparate treat- ment argument using two different groups—entrants from No. 22-3285 19
Canada and non-Latino noncitizens in the United States who overstay their visas. As for the first, Viveros-Chavez points to an agreement the United States had with Canada from 1935 to 1959. Under it, an individual in Canada could take ad- vantage of a “pre-examination” process prior to entering the United States. See Decl. of Prof. Benjamin Gonzalez O’Brien (ECF No. 24-2) at 21. No such program was available for indi- viduals in Mexico. As for the second, Viveros-Chavez argues that noncitizens who overstay their visas (a group, he claims, are mostly non-Mexican and non-Latino) are “not being tar- geted for deportation in the same manner as Mexican or La- tino immigrants.” But we do not see how these groups are similarly situated to Mexican and Latino noncitizens who reentered the country even though they were previously removed, deported, or de- nied entry. Perhaps Viveros-Chavez’s data show that, throughout our history, certain immigrant groups were fa- vored over others. But this is far from evidence that Congress was motivated by racial animus when passing § 1326. We recognize that § 1326 and its enforcement have had significant consequences for individuals in the Mexican and Latino communities. But such policy concerns are better di- rected to the political branches of our government. Here, we conclude that the district court did not clearly err in finding that § 1326 was not motivated by racial animus against Mexi- can and Latino persons. We therefore affirm. 2
2 The government alternatively asks that we uphold § 1326 because
the legislation would have passed even without the purported racial ani- mus. See Arlington Heights, 429 U.S. at 270 n.21 (noting that when racial discrimination motivates the passage of a law, the burden shifts to the government to show “the same decision would have resulted even had 20 No. 22-3285
IV. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court.
the impermissible purpose not been considered”). Because we find that race was not a motivating factor in the passage of § 1326, we need not ad- dress this issue.