United States v. Carrillo-Lopez

Decision Date18 August 2021
Docket NumberCase No. 3:20-cr-00026-MMD-WGC
Parties UNITED STATES of America, Plaintiff, v. Gustavo CARRILLO-LOPEZ, Defendant.
CourtU.S. District Court — District of Nevada

Richard B. Casper, Elizabeth Olson White, Peter Walkingshaw, United States Attorneys Office, Reno, NV, for Plaintiff.




On June 25, 2020, Defendant Gustavo Carrillo-Lopez was indicted on one count of deported alien found in the United States in violation of 8 U.S.C. § 1326(a) & (b) (" Section 1326"). (ECF No. 1.) Before the Court is Carrillo-Lopez's motion to dismiss the indictment (the "Motion") on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).1 (ECF No. 26.) On January 22, 2021, the Court heard oral argument on the Motion (ECF No. 39 ("Oral Argument")), and on February 2, 2021, the Court held an evidentiary hearing (ECF Nos. 48, 49 (the "Hearing")).2 Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus—and as further discussed below—the Court will grant the Motion.


Having considered the briefing, arguments of counsel, and expert testimony of Professors Benjamin Gonzalez O'Brien and Kelly Lytle Hernández, the Court ultimately grants the Motion. First, the Court will explain the applicable standard of review: the test outlined in Arlington Heights. Next, the Court will determine whether Carrillo-Lopez has met his burden. Because Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent, the Court finds that he has. Finally, the Court reviews whether the government has shown that Section 1326 would have been enacted absent discriminatory intent. Because the government fails to so demonstrate, the Court finds its burden has not been met and that, consequently, Section 1326 violates the Equal Protection Clause of the Fifth Amendment.

A. Arlington Heights applies to Section 1326.

As a preliminary matter, the Court must determine which standard to apply. The parties dispute, but the Court finds that the test outlined in Arlington Heights applies to criminal immigration laws such as Section 1326.

Under the Fifth Amendment's equal protection guarantee, a law can violate equal protection in three ways: (1) a law can discriminate on its face (see, e.g., Loving v. Virginia , 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ); (2) authorities can apply a facially neutral law in a discriminatory manner (see, e.g., Yick Wo v. Hopkins , 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ); or (3) a legislature may enact a facially neutral law with a discriminatory purpose in a way that disparately impacts a specific group (see, e.g., Arlington Heights , 429 U.S. at 265-68, 97 S.Ct. 555 ).

Carrillo-Lopez argues that Section 1326 violates his right to equal protection, specifically as articulated in Arlington Heights. The government counters that the statute should not be assessed under an equal protection framework because Congress’ plenary power over immigration subjects immigration laws such as Section 1326 to a highly deferential standard of review. (ECF No. 29 at 7-11 (citing Kleindienst v. Mandel , 408 U.S. 753, 765, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) ; Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ).)3 The government asserts that criminal immigration laws are to receive the same deferential review, or rational bias review. ( Id. at 10-11, 87 S.Ct. 1817 (citing U.S. v. Hernandez-Guerrero , 147 F.3d 1075, 1078 (9th Cir. 1998) ; U.S. v. Ruiz-Chairez , 493 F.3d 1089 (9th Cir. 2007) ; U.S. v. Lopez-Flores , 63 F.3d 1468 (9th Cir. 1995) ).)

Arlington Heights applies here. As an initial matter, the Supreme Court has held that greater protections under the Fifth Amendment necessarily apply when the government seeks to "punish[ ] by deprivation of liberty and property." Wong Wing v. United States , 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ("[E]ven aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law."). The Court is unpersuaded that a criminal law enacted by Congress is free from constitutional equal protection constraints, even if the offense relates to immigration.

The federal government's plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection. The Ninth Circuit Court of Appeals and a plurality of the United States Supreme Court declined to adopt the standard advanced by the government in race-based equal protection challenges of immigration decisions by the executive, and instead applied Arlington Heights . See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec. , 908 F.3d 476, 518-20 (9th Cir. 2018), rev'd in part, vacated in part sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020) ;4 see also Ramos v. Wolf , 975 F.3d 872, 896-99 (9th Cir. 2020) (declining to apply a more deferential standard in favor of Arlington Heights ). In both Regents and Wolf , the Ninth Circuit distinguished Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018), where the Court applied a more deferential standard to an establishment clause challenge of an executive order concerning immigration. Specifically, the Ninth Circuit found that the standard applied in Trump did not similarly apply to equal protection challenges because it differed "in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, the lack of national security justification for the challenged government action, and the nature of the constitutional claim raised." Regents , 908 F.3d at 520 ; see also Wolf , 975 F.3d at 895 ("[T]he deferential standard of review applied in Trump v. Hawaii turned primarily on the Court's recognition of the fundamental authority of the executive branch to manage our nation's foreign policy and national security affairs without judicial interference.").

The government's counterargument is not persuasive. The Ninth Circuit recognized a difference between situations that invoke the President's expansive executive authority "to respond to changing world conditions" in matters of national security and the Court's mandate to ensure all people are afforded equal protection under the law. See Wolf , 975 F.3d at 896 (quoting Trump , 138 S. Ct. at 2419 ). That Carrillo-Lopez challenges a criminal law—which goes to the "nature" of the Fifth Amendment's protective concern—applicable to those within the United States, rather than an immigration policy addressing national security concerns of those not within the United States, is further evidence that his equal protection challenge should be reviewed under a more heightened standard than the rational-basis standard that the government proposed.5

Moreover, the three Ninth Circuit cases the government relies on to argue that immigration laws are subject to rational-basis review despite " § 1326 ’s criminal character" fail to support such an argument. (ECF No. 30 at 10.) First, Hernandez-Guerrero establishes only that Congress did not exceed its constitutional authority under its immigration powers when it enacted Section 1326. See 147 F.3d at 1078. The Ninth Circuit did not hear or address an equal protection challenge to Section 1326 in Hernandez-Guerrero , much less determine which standard of review applies. Moreover, both Lopez-Flores , 63 F.3d at 1475, and Ruiz-Chairez , 493 F.3d at 1091, simply establish that a challenged alienage classification qualifies for rational-basis review. But here, race and national origin, not alienage, is the classification in dispute.

Finally, the Court finds persuasive the fact that several district courts have similarly applied Arlington Heights to race-based immigration challenges brought by individuals residing in the United States,6 including when reviewing equal protection challenges to Section 1326.7

Considering the above, the Court finds that Section 1326 must be reviewed under the Arlington Heights equal protection framework.

B. Carrillo-Lopez has met his burden under Arlington Heights.

Having found that Arlington Heights applies, the Court must now determine whether Carrillo-Lopez has met his burden. The Court finds that he has.

Under Arlington Heights , the moving party has the burden of demonstrating: (1) disparate impact;8 and (2) that "racially discriminatory intent or purpose" was a "motivating factor in the decision." 429 U.S. at 265-68, 97 S.Ct. 555. Determining discriminatory intent requires a "sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including, but not limited to: "[t]he historical background of the decision"; "[t]he legislative or administrative history"; "[t]he specific sequence of events leading to the challenged action"; "[d]epartures from normal procedural sequence"; or whether the impact of the law "bears more heavily on one race than another." Id. at 266-68, 97 S.Ct. 555. If the movant demonstrates that a racially discriminatory intent or purposes was a motivating factor in the challenged decision, the burden then shifts to the government to establish that "the same decision would have resulted even had the impermissible purpose not been considered." Id. at 270 n. 21, 97 S.Ct. 555.

Before Section 1326 was enacted in 1952, Congr...

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