United States v. Muñoz-De La O

Decision Date18 February 2022
Docket Number: 2:20-CR-134-RMP-1
Citation586 F.Supp.3d 1032
Parties UNITED STATES of America, Plaintiff, v. Marciano MUÑOZ-DE LA O, Defendant.
CourtU.S. District Court — District of Washington

586 F.Supp.3d 1032

UNITED STATES of America, Plaintiff,
v.
Marciano MUÑOZ-DE LA O, Defendant.

NO: 2:20-CR-134-RMP-1

United States District Court, E.D. Washington.

Signed February 18, 2022


586 F.Supp.3d 1035

Michael James Austen Ellis, Assistant US Attorney, U.S. Attorney's Office, Spokane, WA, for Plaintiff.

Francisco Carriedo, Public Defender, Federal Defenders, Spokane, WA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

ROSANNA MALOUF PETERSON, Senior United States District Judge

BEFORE THE COURT is Defendant Marciano Muñoz-De La O's Motion to Dismiss, ECF No. 61. The Court heard oral argument on the motion on January 28, 2022. Defendant, pursuant to the CARES Act § 15002(b)(2), Pub. L. No. 116-136 (H.R. 748) (eff. March 27, 2020); General Order No. 20-101-3 Extended (E.D. Wash. Jan. 14, 2022); and General Order No. 2021-5 (E.D. Wash. March 19, 2021), expressly waived his right to be physically present, see Fed. R. Crim. P. 43(a), and consented to appear by video conference for this hearing.

Defendant, who is not in custody, was represented by Assistant Federal Defenders J. Houston Goddard and Payton B. Martinez. Defendant was assisted by court-certified interpreters Natalia Rivera and Susan Evans. Assistant United States Attorney Michael J. A. Ellis appeared on behalf of the Government. Counsel, the Court, and court personnel also appeared via video conference.

The Court heard testimony from Defendant's expert witness, Professor Deborah S. Kang, an Associate Professor of History at the University of Virginia.1 Having reviewed the parties’ filings, heard the argument and testimony presented at the evidentiary hearing, and reviewed the relevant law, the Court is fully informed.

I. BACKGROUND

Defendant Marciano Muñoz-De La O is a citizen and national of Mexico. ECF No. 23. On October 21, 2020, Defendant was indicted for violating 8 U.S.C. § 1326 by unlawfully reentering the United States after having been previously denied admission, excluded, deported, and removed. Id. Defendant moves to dismiss the Indictment, ECF No. 23, on the basis that § 1326 violates the Fifth Amendment's guarantee of equal protection. ECF No. 61. Defendant argues that "racism motivated Congress to criminalize reentry" and that § 1326 "disparately impacts Latinxs." Id. at 4 (citing

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Village of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 265–68, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) ).

A. Overview of United States Immigration History Prior to § 13262

A review of the decades leading to the enactment of § 1326 reveals this country's checkered past in immigration policies. The federal government first forayed into the realm of immigration legislation during the 1870s. ECF No. 64 at 5. One decade later, the 1882 Chinese Exclusion Act prohibited Chinese laborers from entering the United States for ten years. Pub. L. No. 47-126, 22 Stat. 58. Despite constitutional challenges to the law, the United States Supreme Court twice upheld the law's validity in what are now commonly referred to as the Chinese Exclusion cases. See Chae Chan Ping v. United States , 130 U.S. 581, 609, 9 S. Ct. 623, 32 L. Ed. 1068 (1889) (disregarding the law's violation of existing treaties because "[w]hatever license ... Chinese laborers may have obtained ... is held at the will of the government, revocable at any time, at its pleasure"); Fong Yue Ting v. United States , 149 U.S. 698, 724, 13 S. Ct. 1016, 37 L. Ed. 905 (1893) (describing Chinese laborers as "aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws" who "therefore remain subject to the power of Congress to expel them ... from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest").

At the turn of the twentieth century, Professor Kang asserts that a "different form of xenophobia emerged in response to the migration of 1.5 million Mexicans [to the United States] between 1910 and 1920." ECF No. 78-2 at 3. Specifically, she asserts that leaders and lobbyists for southwestern agribusiness "created and perpetuated a negative stereotype of [Mexican nationals] as a cheap, exploitable, and deportable labor force" who were "mentally and morally inferior to European immigrants." Id. at 4. Around this same time, Congress passed multiple reforms to the country's immigration policies.

First, the National Origins Act of 1924 set the number of European immigrants permitted to enter the U.S. to two percent of the total population of each foreign-born nationality in the country as reported in the 1890 census. See Immigration Act of 1924, Pub. L. No. 68-139, ch. 190, 43 Stat. 153.3 Professor Kang describes the quota system as racist and discriminatory, in part, because the law exempted immigrants from the Western hemisphere to guarantee that southwestern growers had an easy and regular supply of exploitable Mexican national workers.

In the ensuing years, Congress held hearings on the "eugenical aspects of deportation"4 that described deportation as "the last line of defense against contamination

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of American family stocks by alien hereditary degeneracy." ECF No. 61-4 at 6. During a separate congressional hearing, Congressman Box stated that "[t]he admission of a large and increasing number of Mexican peons to engage in all kinds of work is at variance with the American purpose to protect the wages of its working people." ECF No. 61-6 at 2. Congressman Box argued that the presence of Mexican immigrants destroyed "schools, churches, and all good community life" for white Americans. Id.

It is with this historical backdrop that Congress passed the 1929 Undesirable Aliens Act ("UAA"), "which established the first criminal penalties for the acts of illegal entry and reentry" into the United States. ECF No. 78-2 at 5. Professor Kang testified that the UAA was a compromise between Nativists seeking to restrict immigration from non-white countries and southwestern agribusiness seeking a cheap and exploitable labor supply during the growing season. In the Great Depression Era of the 1930s, when jobs were scarce, racial animus towards Mexican Nationals grew, resulting in forced repatriation drives in places such as Los Angeles, California. The repatriation drives sought to remove ethnic Mexicans from the country, based on the false viewpoint that Mexicans were responsible for the nation's economic crisis. Id. at 5–6. An estimated 500,000 ethnic Mexicans, including Mexican Americans, were forced to leave the United States during this time period. Id. at 6.

Despite the UAA's passage and the repatriation drives of the 1930s, undocumented immigration rose during the 1940s, coinciding with the 1942 Bracero Program.5 ECF No. 78-2 at 7. The Bracero Program created bilateral agreements between the United States and Mexico for temporary Mexican laborers, many of whom would be "exploited" and "racialized[,]" to work temporarily on farms in the United States. See id. at 4 (stating that agricultural growers "claimed that ‘braceros were a unique[,] docile group of people, denuded of ambition and complacent with their status in life as a result of centuries of servitude and brutal exploitation on the haciendas.’ ") (quoting Lawrence A. Cardoso, Mexican Emigration to the United States 1897–1931 124 (1980)).6

As Professor Kang testified, the mid-twentieth century also is linked to the popularization of the racially derogatory term, "wetback," to describe the Mexican immigrants who were forced to cross the Rio Grande River to enter the United States. Use of this racial slur carried into the 1950s, when Senate Bill 1851, referred to by some congressmen as the "Wetback Bill," sought to bar "aliens from entering

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or remaining in the United States illegally" while simultaneously protecting employers from prosecution for "harboring" undocumented employees. Pub. L. No. 82-283, 66 Stat. 26 (1952).7 Numerous congressmen continued to use the racial slur when discussing potential amendments to Senate Bill 1851.8

B. Relevant History and Legislative Record Regarding § 1326

In 1952, Congress recodified the unlawful reentry provision of the 1929 UAA at 8 U.S.C. § 1326. The new statute provided the following:

Any alien who–(1) has been arrested and deported or excluded and deported, 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 excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.

Pub. L. No. 82-414, Title II, § 276, 66 Stat. 229. Professor Kang argues that Senator Pat McCarran, co-author of the 1952 Immigration Nationality Act ("1952 INA")9 "worked to remove obstacles to the undocumented crossings of Mexican workers" to defend "a widespread system of labor exploitation premised upon racist notions of Mexican migrants as expendable farmworkers." ECF No. 78-2 at 18.

In the buildup to Congress's enactment of the 1952 INA, Professor Kang describes Senator McCarran as regularly wielding "his authority to delay and block the passage of any liberal reforms." Id. at 20.10 As

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for § 1326, specifically, "Congress remained largely silent with respect to the recodification of the criminal entry and re-entry provisions of the immigration laws in the 1952 Act" and "made no effort to examine or cleanse the anti-Mexican racism that infected the [1929 UAA]." ECF No. 78-2 at 22. Instead, the changes made to the...

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