USCA4 Appeal: 22-4072 Doc: 108 Filed: 04/04/2024 Pg: 1 of 24
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE SANCHEZ-GARCIA, a/k/a Jorge Sanchez Garcia, a/k/a Jorge Garcia Sanchez,
Defendant - Appellant.
------------------------------
LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
Amici Supporting Appellant.
No. 22-4075
Plaintiff – Appellee, USCA4 Appeal: 22-4072 Doc: 108 Filed: 04/04/2024 Pg: 2 of 24
VINCENTE BANALES RODRIGUEZ, a/k/a Vincente Banales-Rodriguez, a/k/a Vincente Banalas Rodriguez, a/k/a Vincente Banales Rodrigues, a/k/a Vincente Rodriguez, a/k/a Vicente Banales Rodriguez, a/k/a Vicente Banales-Rodriguez, a/k/a Vicente Banalas Rodriguez, a/k/a Vicente Rodriguez, a/k/a Victor Carrillo- Banales, a/k/a Victor Carrillo,
Defendant – Appellant.
LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
No. 22-4077
Plaintiff – Appellee,
NICOLAS MORALES-GUTIERREZ, a/k/a Javier Mayo-Vargas, a/k/a Leondardo Morales-Gutierrez, a/k/a Oscar Arturo Reyes, a/k/a Nicolas Mayo Morales, a/k/a Nicolas Gutierrez, a/k/a Nicolas Gutierrez-Gutierrez, a/k/a Nicolas Gutierrez Morales, a/k/a Miguel Angel Mora-Gutierres, a/k/a Miguel Mora Gutierres, a/k/a Miguel Angel Moro, a/k/a Miguel Morales-Tijon, a/k/a Nicolas Morales,
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LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
No. 22-4078
JESUS BENITEZ PINEDA, a/k/a Jesus Benitez-Pineda, a/k/a Jesus Benitz Pineda, a/k/a Jesus Pineda Benitez, a/k/a Jesus Pineda-Benitez, a/k/a Santos Hernandez- Benitez, a/k/a Santos Hernandez,
LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR
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IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
No. 22-4100
HECTOR TAPIA HERNANDEZ-AVILA,
LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
No. 22-4107
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MARTIN MALACARA-GUERRERO, a/k/a Martin Malacara Guerrero,
LEGAL SERVICE PROVIDERS; IMMIGRANT RIGHTS ORGANIZATIONS; DR. S. DEBORAH KANG; ASIAN AMERICANS ADVANCING JUSTICE; HUMAN RIGHTS FIRST; NORTHWEST IMMIGRANT RIGHTS PROJECT; ADVOCATES FOR BASIC LEGAL EQUALITY, INC.; JUSTICE STRATEGIES; LATINOJUSTICE PRLDEF; LEGAL AID JUSTICE CENTER; MASSACHUSETTS LAW REFORM INSTITUTE; NATIONAL IMMIGRATION LAW CENTER; IMMIGRATION SCHOLARS; CENTER FOR IMMIGRATION LAW AND POLICY; AOKI CENTER FOR CRITICAL RACE AND NATION STUDIES; SOUTHERN POVERTY LAW CENTER; PROFESSOR ERIC FISH,
Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, Chief District Judge. (1:20-cr-00402-CCE-1; 1:20-cr- 00497-CCE-1; 1:20-cr-00074-CCE-1; 1:20-cr-00144-CCE-1; 1:20-cr-00448-CCE-1; 1:20-cr-00232-CCE-1)
Argued: September 22, 2023 Decided: April 4, 2024
Before DIAZ, Chief Judge, and AGEE and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the majority opinion, in which Chief Judge Diaz and Judge Agee joined.
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ARGUED: Mireille P. Clough, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellants. Margaret McCall Reece, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal Public Defender, Eric D. Placke, First Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellants. Sandra J. Hairston, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Khaled Alrabe, Ann Garcia, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Washington, D.C.; Charles Roth, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, Illinois, for Amici Legal Service Providers and Immigrant Rights Organizations. Michele Akemi McKenzie, MCKENZIE SCOTT PC, San Diego, California, for Amici Asian Americans Advancing Justice, Human Rights First, and Northwest Immigrant Rights Project. Philip L. Torrey, Crimmigration Clinic, HARVARD LAW SCHOOL, Cambridge, Massachusetts, for Amicus Dr. S. Deborah Kang. Lourdes Rosado, Andrew Case, LATINOJUSTICE PRLDEF, New York, New York; Max S. Wolson, Washington, D.C., Nicholas David Espiritu, NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California, for Amici Advocates for Basic Legal Equality, Justice Strategies, Latino Justice PRLDEF, Legal Aid Justice Center, Massachusetts Law Reform Institute, and National Immigration Law Center. Amanda Valerio, Washington, D.C., Alexia D. Korberg, Melina Meneguin Layerenza, Patrick McCusker, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York, for Amici Immigration Scholars. Yaman Salahi, EDELSON PC, San Francisco, California, for Amici The Center for Immigration Law and Policy, The Aoki Center for Critical Race and Nation Studies, The Southern Poverty Law Center, and Professor Eric Fish.
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PAMELA HARRIS, Circuit Judge:
The defendants in this case are six non-citizens indicted for illegally reentering the
United States following their prior removal, in violation of 8 U.S.C. § 1326. They moved
to dismiss their indictments on the ground that § 1326 is unconstitutional because it was
enacted with a racially discriminatory purpose.
Like virtually every other court to consider such a claim, the district court rejected
the defendants’ argument, finding that they had not carried their burden of showing that
racial discrimination was a motive for enacting § 1326. We now affirm the judgment of
the district court.
I.
A.
For context, we begin with the illegal-reentry provision under which the defendants
were indicted. Under 8 U.S.C. § 1326, any non-citizen who “has been denied admission,
excluded, deported, or removed” and then “enters, attempts to enter, or is at any time found
in, the United States” without proper authorization is subject to criminal penalties. 8 U.S.C.
§ 1326(a).
Section 1326 was enacted in 1952 as part of the Immigration and Nationality Act
(“INA” or “1952 Act”), a “full and complete” overhaul of the nation’s immigration laws.
See United States v. Carrillo-Lopez, 68 F.4th 1133, 1143, 1146-47 (9th Cir. 2023) (quoting
S. REP. NO. 81-1515, at 803 (1950) (“Senate Report”)). Much of the debate over the INA
focused on the national-origin quota system, which opponents viewed as “discriminatory
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in the treatment of certain nationalities of Europe.” Id. at 1144 (quoting Senate Report at
448). 1 As passed by Congress, the INA maintained but revised the quota system, adjusting
its formulas and adding preferences for family reunification and non-citizens with specified
skills. Id. at 1145. It also sought to ensure that the new immigration system would be free
of racial discrimination, in part by eliminating bars to naturalization based on race. Id.; see
J.A. 927 (defendants’ expert explaining that the INA “removed racial restrictions on
naturalization and immigration” and “allowed Asian immigrants . . . to naturalize for the
first time”).
The 1952 Act also included the illegal reentry provision at issue here, now codified
at 8 U.S.C. § 1326. Section 1326 replaced three reentry offenses set out in three prior
statutory sections, each with separate penalties. See United States v. Mendoza-Lopez, 481
U.S. 828, 835 (1987) (describing prior offenses); Carrillo-Lopez, 68 F.4th at 1147. Among
them—and critical to the defendants’ claim—was a 1929 provision (“1929 Act”) making
it a felony for any non-citizen, once deported, to reenter or attempt to reenter the United
States. See Act of March 4, 1929, Pub. L. No. 70-1018, 45 Stat. 1551. In creating a new
single offense—§ 1326—the INA imposed a single penalty for all reentry defendants of a
maximum two years’ imprisonment, a fine, or both. See 8 U.S.C. § 1326(a); Carrillo-
Lopez, 68 F.4th at 1147. Section 1326 also added being “found in” the United States after
removal as a new ground for liability, 8 U.S.C. § 1326(a)(2), creating for the first time a
1 As the Senate Report explained, the national origin quotas did not apply to immigrants from Western Hemisphere countries, including Mexico and countries in Central and South America. See Senate Report at 459; Carrillo-Lopez, 68 F.4th at 1144.
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“continuing offense” that commenced with reentry but was not completed until discovery
and apprehension of the non-citizen, see United States v. Ayon-Brito, 981 F.3d 265, 270-
71 (4th Cir. 2020).
This new illegal reentry provision was never addressed during the extensive
congressional debate over the 1952 Act, and it was barely mentioned in the Act’s legislative
history. Carrillo-Lopez, 68 F.4th at 1145-46. Nor did President Truman mention § 1326
when he vetoed the bill, instead citing his opposition to continuation of quotas that, in his
view, disfavored people from Southern and Eastern Europe. Id. at 1146 (citing Veto of Bill
to Revise the Laws Relating to Immigration, Naturalization, and Nationality, 1 PUB.
PAPERS 442-43 (June 25, 1952)). Congress enacted the INA over the President’s veto.
Since its enactment in 1952, § 1326 has been amended on several occasions, most
recently in 1996. Each time, Congress has added new penalties or otherwise strengthened
the provision’s punitive and deterrent effect. See United States v. Barrera-Vasquez, 617
F. Supp. 3d 400, 405, 411 (E.D. Va. 2022). 2
B.
2 Amendments in 1988, 1990 and 1994 added new or increased penalties to § 1326. See Pub. L. No. 100-690, § 7345, 102 Stat. 4181, 4471 (1988); Pub. L. No. 101-649, § 543, 104 Stat. 4978, 5059 (1990); Pub. L. No. 103-322, § 130001(b), 108 Stat. 1796, 2023 (1994). A 1996 amendment added a new penalty provision and expanded the class of prosecutable defendants. Pub. L. No. 104-208, 110 Stat. 3009, 3009-606, 3009-618 to 3009-620, 3009-629. A different 1996 amendment responded to the Supreme Court’s decision in Mendoza-Lopez, by specifying the limited circumstances in which a removal order may be subject to collateral attack. See 8 U.S.C. § 1326(d); Pub. L. No. 104-132, § 441(a), 110 Stat. 1214, 1279.
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We turn now to the proceedings in this case. Each of the six defendants was charged
in a one-count indictment with illegal reentry under § 1326. Each moved to dismiss his
indictment on the ground that § 1326 violates the equal protection guarantee of the Fifth
Amendment because it was enacted with a racially discriminatory purpose. Relying on
United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021), rev’d, 68 F.4th 1133
(9th Cir. 2023)—then the sole decision to sustain such a claim—the defendants argued that
under the Arlington Heights factors, see Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252 (1977), they could show that § 1326 was intended to target Mexican
and Central American immigrants because of their race.
On the defendants’ motion and with the government’s consent, the district court
consolidated the six cases for an evidentiary hearing. The defendants’ expert witness
testified as to the history behind both the INA and the 1929 Act that was one of § 1326’s
predecessors. The defendants also presented the transcript of testimony from the
evidentiary hearing before the district court in Carrillo-Lopez, and legislative materials
related to the statutes in question. The main thrust of the defendants’ argument was that
the 1929 Act’s illegal reentry provision was based on racial animus, and that this animus
carried forward to the INA’s enactment of substantially the same provision. J.A. 902-10,
931-32 (defendants’ expert testimony); see Carrillo-Lopez, 555 F. Supp. 3d at 1010-11
(adopting same argument).
The district court disagreed, and in an oral ruling after the hearing, it denied the
defendants’ motions to dismiss their indictments. J.A. 1041-44. The court first noted a
threshold question as to whether the defendants’ racial bias claim should be reviewed under
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Arlington Heights, as the defendants proposed, or under the rational basis standard
generally applied to immigration laws, as the government argued. J.A. 1042. That dispute
did not need to be resolved, the court concluded, because even under the less deferential
Arlington Heights standard, the defendants could not meet their burden of showing that
§ 1326, as enacted in 1952, was motivated by racial bias. J.A. 1044.
The court considered the “entire historical context” of § 1326, consistent with
Arlington Heights. J.A. 1043; see Arlington Heights, 429 U.S. at 266-67 (identifying
“historical background” as factor). That included the predecessor 1929 Act, as to which
the district court was prepared to assume “underlying racist motivations.” J.A. 1042. But
the case for impermissible racial bias with respect to the 1952 Act and § 1326 itself, the
court continued, was “much weaker,” in part because there was evidence that other
purposes – “economic factors, [] labor market factors, national security factors” –
motivated both § 1326’s original enactment and its repeated amendments “well into the
modern era.” J.A. 1043-44. Ultimately, the court was not persuaded that any racial animus
from 1929 “continued into 1952 and beyond.” J.A. 1044.
After their motions to dismiss were denied, the defendants pled guilty to violating
§ 1326, reserving the right to appeal on the issue of § 1326’s constitutionality. Each
defendant timely filed an appeal before this court, and we consolidated those appeals for
decision.
II.
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The only question before us is whether the defendants have shown that § 1326
violates the equal protection guarantee of the Fifth Amendment because it was enacted
with a racially discriminatory purpose. The defendants continue to argue, as before the
district court, that one of § 1326’s predecessor statutes, the 1929 Act, was motivated by
racial animus against Mexican and Central American immigrants, and that Congress’s
failure to address or repudiate that animus in 1952 gives rise to an inference that § 1326
reflects that same animus.
Claims just like this have been considered and rejected by dozens of courts around
the country. Virtually without exception, all have found that regardless of the origins of
the 1929 Act, it cannot be shown that § 1326, enacted almost 25 years later, was motivated
by racial bias. See United States v. Barcenas-Rumualdo, 53 F.4th 859, 865 & n.15 (5th
Cir. 2022) (describing consensus in case law). There was, to be sure, one district court
decision adopting the contrary position, see Carrillo-Lopez, 555 F. Supp. at 1005-09, on
which the defendants closely modeled their evidentiary submissions and arguments in this
case. But the Ninth Circuit has since reversed that decision, see Carrillo-Lopez, 68 F.4th
at 1142-53, 3 and now three federal courts of appeals have weighed in to sustain § 1326
against equal protection challenges. See id.; Barcenas-Rumualdo, 53 F.4th at 865-67;
United States v. Wence, No. 22-2618, 2023 WL 5739844, at *3 (3d Cir. Sept. 6, 2023).
3 Because the defendants’ arguments before us so closely track the district court’s decision in Carrillo-Lopez, the Ninth Circuit’s assessment of that decision is especially on point. We have thus borrowed substantially from the Ninth Circuit’s thorough and well- reasoned opinion.
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We review de novo the defendants’ challenge to the constitutionality of a criminal
statute. See United States v. Roof, 10 F.4th 314, 391 n.51 (4th Cir. 2021) (per curiam). We
review the district court’s factual findings – including its findings as to whether § 1326 is
motivated by a racially discriminatory purpose – for clear error. See N.C. State Conf. of
the NAACP v. McCrory, 831 F.3d 204, 219-20 (4th Cir. 2016). Joining the consensus in
the courts of appeals, we affirm the judgment of the district court rejecting the defendants’
constitutional challenges to § 1326.
1.
The standard that generally governs an equal protection claim like the defendants’
is well established. See Carrillo-Lopez, 68 F.4th at 1139-41 (explaining background equal
protection principles). As all agree, § 1326’s illegal reentry provision is racially neutral on
its face. But even a facially neutral law may violate equal protection principles if racial
discrimination “was a substantial or motivating factor” behind its enactment. N.C. State
Conf. of the NAACP v. Raymond, 981 F.3d 295, 303 (4th Cir. 2020) (internal quotation
marks omitted). The burden of proof is on the defendants to show that § 1326 was enacted
in 1952 with this discriminatory intent. Id.; Abbott v. Perez, 585 U.S. 579, 603 (2018).
Evidence that § 1326 has a disparate impact – that it “bears more heavily on one
race than another” – is relevant but not dispositive. Arlington Heights, 429 U.S. at 266
(quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). Instead, Congress’s intent is
assessed under all the Arlington Heights factors: the “historical background” of the INA
and § 1326; the sequence of events leading to § 1326’s enactment, including any departures
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from the regular legislative process; § 1326’s legislative history; and whether § 1326
disproportionately impacts the Mexican and Central American immigrants against whom
it is allegedly targeted because of their race. Id. at 266-68; see Raymond, 981 F.3d at 303;
McCrory, 831 F.3d at 220-21.
All that evidence must be considered in light of the “presumption of good faith”
afforded Congress’s 1952 enactment of § 1326. Abbott, 585 U.S. at 604–05; accord
Raymond, 981 F.3d at 303. Critically, that presumption is not changed by a finding of past
discrimination, even discrimination that is part of § 1326’s “historical background.” See
Abbott, 585 U.S. at 603-04. A finding of racial discrimination in connection with the 1929
Act on which defendants rely, in other words, would neither relieve the defendants of their
burden of proof nor “remove[] the presumption of legislative good faith” to which the 1952
Congress is entitled. See Raymond, 981 F.3d at 303 (internal quotation marks omitted).
2.
The government argues at the outset that this Arlington Heights standard does not
apply to immigration laws like § 1326. Instead, it urges, we should apply the more
deferential standard, akin to rational basis review, that the Supreme Court has used in
certain contexts involving immigration law. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792-96
(1977) (giving minimal scrutiny to gender- and legitimacy-based distinction in immigrant
admission law); see also Johnson v. Whitehead, 647 F.3d 120, 126-27 & n.1 (4th Cir. 2011)
(applying Fiallo’s “rational basis” standard to gender-based distinction in naturalization
law and emphasizing “the plenary power of Congress in the immigration context”).
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We agree with the district court, see J.A. 1042, and our sister circuits, see Carrillo-
Lopez, 68 F.4th at 1141-42; Barcenas-Rumualdo, 53 F.4th at 864-65, that the correct
standard of review for this challenge is not entirely clear. On the one hand, as the
government reminds us, the Supreme Court has recognized that “Congress’s broad
authority over admission and exclusion” of non-citizens “warrants limited judicial
interference.” Barcenas-Rumualdo, 53 F.4th at 864 & n.12 (citing Demore v. Kim, 538
U.S. 510, 522 (2003)). And “without precise explanation,” Carrillo-Lopez, 68 F.4th at
1142, the Supreme Court has applied rational basis scrutiny even to allegations of invidious
discrimination in immigration law, see Trump v. Hawaii, 585 U.S. 667, 702-04 (2018); id.
at 741 (“[W]ithout explanation or precedential support, [the majority] limits its review . . .
to rational-basis scrutiny.”) (Sotomayor, J., dissenting).
On the other hand, as the defendants argue, § 1326 is a criminal statute, not a law
that directly governs the admission or exclusion of non-citizens. See Barcenas-Rumualdo,
53 F.4th at 864-65 (“[Section] 1326 relates to those already excluded, so it does not
unequivocally fall under Congress’s exercise of power over admission and exclusion.”).
Moreover, the Supreme Court has applied the Arlington Heights standard to at least some
equal protection challenges in the immigration context, “again, without precise
explanation.” Carrillo-Lopez, 68 F.4th at 1142 (citing Dep’t of Homeland Sec. v. Regents
of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020)). And to complicate matters further,
while the district courts that have heard equal protection challenges to § 1326 are
unanimous on the merits, they are divided on the correct standard of review. See Barcenas-
Rumualdo, 53 F.4th at 865 (describing split in district courts).
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In the end, like the other courts of appeals to weigh in, we find we need not resolve
this issue. The defendants do not contend that they can prevail under rational basis review.
And as we conclude below, they also cannot prevail under the Arlington Heights standard.
So we 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. See Carrillo-
Lopez, 68 F.4th at 1142 (doing the same); Barcenas-Rumualdo, 53 F.4th at 865 (same);
Wence, 2023 WL 5739844, at *3 (same).
Under Arlington Heights, as outlined above, the defendants bear the burden of
showing, based on the factors set out by the Supreme Court, that racial bias against
Mexican and Central American immigrants was “a motivating factor” for Congress when
it enacted § 1326 in 1952. See McCrory, 831 F.3d at 220; accord Raymond, 981 F.3d at
303. After an extensive evidentiary hearing, the district court found that the defendants
had not carried that burden. Finding no clear error in that factual determination, we affirm.
Cf. McCrory, 831 F.3d at 219-20 (applying clear error standard to “the ultimate factual
question of a legislature’s discriminatory motivation”).
Ordinarily, we would start under Arlington Heights with the historical background
of the enactment in question – here, the enactment of § 1326 in 1952. See Carrillo-Lopez,
68 F.4th at 1140, 1147-48. But the defendants’ arguments are centered almost entirely on
a different law: the 1929 Act that was one of § 1326’s three predecessor offenses.
According to the defendants, that illegal reentry provision was enacted with racially
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discriminatory intent – and when Congress passed § 1326 in 1952 without addressing and
“repudiating” that racial animus, it demonstrated its continued discriminatory purpose.
The defendants’ evidence about the 1929 Act “paints a vivid picture of [a] troubling
history.” See Barcenas-Rumualdo, 53 F.4th at 866; accord, e.g., United States v. Machic-
Xiap, 552 F. Supp. 3d 1055, 1066-68 (D. Or. 2021) (making detailed findings of racial bias
behind 1929 Act). Like the district court, we will assume that the 1929 Act rests at least
in part on “underlying racist motivations.” J.A. 1042. But we also agree with the district
court – and the other three courts of appeals to consider the question – that the ugly origin
of the 1929 Act is not enough to overcome the presumption that 1952’s Congress enacted
§ 1326 in good faith and without racially discriminatory intent.
First, to the extent the defendants argue that the motivations for the 1929 Act may
automatically be imputed to the 1952 Congress – at least without some “repudiation” by
that Congress – we must disagree. That position is foreclosed by the Supreme Court’s
decision in Abbott, clarifying that a finding of past discrimination does not by itself
overcome the presumption of good faith, and that a future legislature has no “duty to purge
its predecessor’s allegedly discriminatory intent.” 585 U.S. at 605-06; see also Raymond,
981 F.3d at 303-05 (applying Abbott to reject similar argument). As the Ninth Circuit
explained in Carrillo-Lopez, the defendants’ near-singular reliance on the 1929 Act is
fundamentally at odds with Abbott: 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.” 68 F.4th at 1151; see also
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Barcenas-Rumualdo, 53 F.4th at 866 (explaining that the 1952 Act, not the 1929 Act, is
“our point of reference”).
This does not mean, to be sure, that the origins of the 1929 Act – which, again, we
assume are tainted by racial animus – are irrelevant to the Arlington Heights analysis. See
Abbott, 585 U.S. at 607. Instead, as we recently explained in Raymond, a prior legislature’s
discriminatory intent is appropriately considered as part of the Arlington Heights
“historical background” factor. 981 F.3d at 305. 4 But under the circumstances here, we
agree with the district court that the intent behind the 1929 Act is of limited probative force
when it comes to the intent of 1952’s Congress in passing § 1326. See Carrillo-Lopez, 68
F.4th at 1151 (finding that 1929 Act history lacks significant “probative value” for
determining motivation of 1952 Congress).
Perhaps most important, there is the substantial chronological gap between the
legislative act directly at issue – 1952’s enactment of § 1326 – and the 1929 Act. “The
INA was enacted 23 years after the 1929 Act, and was attributable to a legislature with ‘a
substantially different composition,’ in that Congress experienced a more than 96 percent
4 For this reason, we see no inconsistency between our approach and separate opinions in Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2274 (2020) (Alito, J., concurring), and Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J., concurring), emphasizing the racist past of certain provisions. See Carrillo-Lopez, 555 F. Supp. 3d at 1026-27 (relying on those opinions). Assuming those cases, which do not involve equal protection challenges or the Arlington Heights framework, are relevant here, but see, e.g., Barrera-Vasquez, 617 F. Supp. 3d at 409, these separate opinions stand simply for the proposition that the 1929 Act’s underpinnings are relevant to the inquiry into § 1326 – a proposition already accounted for by the Arlington Heights historical background factor. See United States v. Hernandez-Lopez, 583 F. Supp. 3d 815, 822-23 (S.D. Tex. 2022).
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turnover of its personnel in the intervening years.” Id. at 1150 (quoting Brnovich v.
Democratic Nat’l Comm., 141 S. Ct. 2321, 2349 n.22 (2021)). Historical evidence so far
removed in time can shed only limited light on the motivations of a very different Congress
in 1952. See Barrera-Vasquez, 617 F. Supp. 3d at 408 (“The Court . . . [is] unpersuaded .
. . that the [1929 Act’s] history explains why the 82nd Congress passed § 1326 some
twenty-three years later.” (cleaned up)). By way of comparison, the Supreme Court in
Abbott and our court in Raymond considered legislative action that followed prior
discrimination by only a few years, and still found that historical background insufficient
to overcome the presumption of legislative good faith. See Abbott, 585 U.S. at 607-08;
Raymond, 981 F.3d at 305.
The defendants attempt to bridge the lengthy gap between 1929 and 1952 by
claiming that the 1952 Congress simply “recodified” or “reenacted” the 1929 Act.
Although it is not fully spelled out by the defendants, the theory seems to be that a plain
reenactment of an existing statute carries forward prior racial animus in a way that
reenactment with substantive changes would not. See Carrillo-Lopez, 555 F. Supp. 3d at
1017-19 (adopting argument). Whatever the merits of this theory – which appears to rest
on a one-sentence caveat from the Supreme Court’s Abbott opinion, see 585 U.S. at 604
(“Nor is this a case in which a law originally enacted with discriminatory intent is later
reenacted by a different legislature.”) – it has no application here, because § 1326 is not in
fact a “simple recodification” of the 1929 Act.
The INA, of course, was not a “reenactment of the 1929 Act, but rather a broad
reformulation of the nation’s immigration laws.” Carrillo-Lopez, 68 F.4th at 1151 (internal
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quotation marks omitted). And even if we narrow our focus to § 1326 itself, that provision
had three predecessor statutes, not one, and incorporated from each of them while making
substantial revisions and additions. Id. Most notable, perhaps, is the addition of the “found
in” language, establishing a new continuing offense. See 8 U.S.C. § 1326(a)(2). But there
are other changes, too. See United States v. Viveros-Chavez, No. 21CR665, 2022 WL
2116598, at *5 (N.D. Ill. June 13, 2022) (cataloging substantive differences). The two
statutes certainly cover the “same subject matter” – but the same, of course, could be said
about the two redistricting plans at issue in Abbott, see id. at *6, or the two voter-ID
requirements at issue in Raymond.
Finally, as the Fifth Circuit emphasized, the clock does not stop in 1952. See
Barcenas-Rumualdo, 53 F.4th at 866. Congress has amended § 1326 multiple times since
its original enactment, most recently in 1996, and the defendants do not meaningfully
contend that any of those later congressional actions was based on racial discrimination.
On the contrary, the district court found that other factors, including “economic factors, []
labor market factors, [and] national security factors,” were the overriding concern for
Congress “into 1952 and beyond,” as it continuously refined § 1326. J.A. 1044. “The
further removed that § 1326 becomes from [the 1929 Act] by amendment, the less it retains
its odor.” Barcenas-Rumualdo, 53 F.4th at 866. 5
5 Under Arlington Heights, if the defendants could carry their burden of showing that § 1326 was motivated in part by racial animus, the burden would shift to the government to prove that “the same decision would have resulted even had the impermissible purpose not been considered.” 429 U.S. at 270 n.21. The government argues that the repeated amendments of § 1326 without indicia of discrimination allow it (Continued) 20 USCA4 Appeal: 22-4072 Doc: 108 Filed: 04/04/2024 Pg: 21 of 24
Although the defendants rely principally on the 1929 Act to show an impermissible
purpose behind § 1326, they also allude to other aspects of § 1326 to support their case.
Accordingly, with the role of the 1929 Act established, we turn to whether the
presumptively racial origins of that Act, now combined with other evidence relevant under
the Arlington Heights factors, is enough to overcome the presumption of good faith and
show that § 1326 itself was passed for racially discriminatory reasons. The district court
held that the defendants had not made this showing, and we see no clear error in that
judgment.
Neither the sequence of events leading up to the INA’s passage nor the INA’s
legislative history provide any direct evidence of discriminatory intent behind § 1326. As
noted above, the congressional debate over the INA primarily focused on national-origin
quotas—quotas to which Mexican and Central American immigrants were not subjected.
See Carrillo-Lopez, 68 F.4th at 1146-47 & n.8. As a result, there was no discussion of how
§ 1326 would affect those populations. See id. at 1146. And as the defendants’ own expert
emphasized, the legislative history contains no substantive mention of § 1326’s illegal
reentry provision at all, J.A. 933 – let alone any discussion evincing a racially
discriminatory purpose. By all appearances, Congress never even considered what effect
to satisfy this burden. See, e.g., Barrera-Vasquez, 617 F. Supp. 3d at 411-12 (adopting argument). Because we agree with the district court that the defendants cannot make the initial showing necessary to shift the burden of proof to the government, we need not pass on this alternative argument.
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§ 1326 might have on the Mexican and Central American immigrants the defendants claim
it targeted because of their race. See Carrillo-Lopez, 68 F.4th at 1146 (“There was no
discussion of [§ 1326’s] impact on Mexicans or other Central and South Americans.”).
The defendants thus turn, once again, to a different law, this one enacted a few
months before the INA: an anti-harboring law targeting those involved in transporting and
otherwise facilitating the entry of non-citizens into the United States without authorization,
see Act of Mar. 20, 1952, Pub. L. No. 82-283, 66 Stat. 26 (1952), colloquially referred to
as the “Wetback Bill.” That is indeed a noxious formulation, especially by modern lights.
But like the other courts of appeals to consider this evidence, we think the fact that
“individual lawmakers dubbed a bill something derogatory” – even deeply so – does not
significantly bear on the motivations of the entire Congress in enacting a different law. See
Barcenas-Rumualdo, 53 F.4th at 867; see also Carrillo-Lopez, 68 F.4th at 1149 n.13
(“[I]ndividual lawmakers’ name for a separate bill is not sufficient evidence to meet [the
defendant’s] burden of showing that Congress acted with racial animus when it enacted
§ 1326.”). So, too, with the equally regrettable use of the slur “wetback” by a handful of
members of Congress in debate over the INA. While a disturbing reflection on the kind of
language that was tolerated in Congress at the time, these comments are not “evidence that
the legislature as a whole was imbued with racial motives.” See Brnovich, 141 S. Ct. at
2349-50.
Finally, the defendants rely on expert testimony that § 1326 has a disparate impact
on Mexican and Central American immigrants. See J.A. 469-70; Arlington Heights, 429
U.S. at 265-66 (discussing relevance of disparate impact evidence). But there is nothing
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surprising – or more to the point, suspicious – about the fact that an illegal reentry provision
bears most heavily on populations with whom this country shares a several-thousand-mile
border. As multiple courts have recognized, “any disparate impact” in § 1326 prosecutions
is readily “explained by the geographic proximity of the border to Mexico and Latin
America.” See Barrera-Vasquez, 617 F. Supp. 3d at 411 (internal quotation marks
omitted).
And because there is an obvious explanation for this disparate impact, it does little,
if anything, to suggest a racially discriminatory motive. Disparate impact evidence is
relevant not for its own sake, but because a “clear pattern, unexplainable on grounds other
than race,” may give rise to an inference of discriminatory intent. Arlington Heights, 429
U.S. at 266 (emphasis added); see also Personnel Adm’r. of Mass. v. Feeney, 442 U.S. 256,
275 (1979) (same). But here, the “clear geographic reason for disproportionate impact on
Mexicans and other Central and South Americans undermines any inference of
discriminatory motive.” Carrillo-Lopez, 68 F.4th at 1153.
All told, we agree with the district court and the other courts to have considered this
question. The 1929 Act notwithstanding, Congress’s 1952 passage of § 1326 is entitled to
a presumption of legislative good faith. See Raymond, 981 F.3d at 303. Indeed, as the
district court noted, 1952’s INA had a distinctly “antiracist component,” J.A. 1043,
eliminating racial bars to naturalization and other forms of racial discrimination in
admissions. See Carrillo-Lopez, 68 F.4th at 1144-45; Machic-Xiap, 552 F. Supp. 3d at
1069 (“Many in Congress viewed the INA as a dramatic departure from the heavily
racialized immigration statutes of the early 1920s.”). Against this background, and for the
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reasons discussed above, we conclude that the defendants have not met their burden of
demonstrating that discrimination based on race was a motivating factor behind enactment
of § 1326.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED