United States v. Machic-Xiap, Case No. 3:19-cr-407-SI

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: Michael H. Simon, District Judge.
• Citation: 552 F.Supp.3d 1055
• Parties: UNITED STATES of America v. Agustin MACHIC-XIAP, Defendant.
• Docket Number: Case No. 3:19-cr-407-SI
• Decision Date: 03 August 2021

552 F.Supp.3d 1055

UNITED STATES of America
v.
Agustin MACHIC-XIAP, Defendant.

Case No. 3:19-cr-407-SI

United States District Court, D. Oregon.

Signed August 3, 2021

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Scott Erik Asphaug, Acting United States Attorney, and Sarah Barr, Assistant United States Attorney, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for United States of America.

Alison M. Clark and Elizabeth G. Daily, Assistant Federal Public Defenders, Office of the Federal Public Defender, 101 SW Main Street, Suite 1700, Portland, OR 97204. Of Attorneys for Defendant.

OPINION AND ORDER

Michael H. Simon, District Judge.

Augustin Machic-Xiap is a Guatemalan national. A grand jury indicted Mr. Machic-Xiap for violating 8 U.S.C. § 1326 by unlawfully reentering the United States after having been previously arrested and denied admission, excluded, deported, or removed. Mr. Machic-Xiap moves to dismiss the indictment. He asserts that § 1326 is unconstitutional because it violates his right to equal protection of the law, as guaranteed to all persons under the Fifth Amendment to the United States Constitution. Mr. Machic-Xiap argues that Congress originally enacted the criminal offense of illegal reentry with a "discriminatory purpose" and that the law as continuously applied has a "disparate impact" against persons coming from Latin America, even though it is facially neutral.¹ Invoking the factors set out by the United States Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (" Arlington Heights "), Mr. Machic-Xiap contends that the indictment must be dismissed.

Congress first criminalized illegal reentry in a law called the "Undesirable Aliens

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Act of 1929" (1929 Act). Twenty-three years later, Congress enacted § 1326 as part of a comprehensive overhaul of the nation's immigration laws in the Immigration and Nationality Act of 1952 (INA), also called the "McCarran-Walter Act." The INA was enacted after Congress overrode the veto of President Harry S. Truman. As discussed below, almost everyone whom the United States has prosecuted for the crime of illegal reentry under § 1326 or its predecessor laws has come from Latin America, i.e. , Mexico, Central America, or South America.

Also as discussed below, the Court finds that racism has permeated the official congressional debate over United States immigration laws since the late 19th and early 20th centuries, including the 1929 Act. Although some members of Congress in 1952 hoped that the INA would eliminate the bigotry of earlier immigration legislation, especially anti-Asian bigotry, other members of Congress at that time continued to express statements exhibiting overt racial, ethnic, or religious prejudices. Indeed, new expressions of prejudice, evidenced by Congress's frequent use in the 1950s of the derogatory epithet "wetback" to describe immigrants from Latin America, emerged during the debate leading to the enactment of the INA.

Proving that racism "motivated" a specific congressional act sufficient to strike down that law as unconstitutional, however, is not easy. Indeed, this district court is unaware of any federal appellate decision holding that a facially neutral act passed by Congress was motivated by racial, ethnic, or religious animus. Although the Court also finds that § 1326 disproportionately affects persons coming to the United States from Latin America, disparate impact, by itself, is not enough to strike down a facially neutral law. There also must be evidence that Congress, as a body and distinct from a handful of individual members, intended that disparate effect.

Mr. Machic-Xiap presents significant and persuasive evidence of racial animus directed against persons coming from Latin America, especially as shown in the legislative history of the 1929 Act, which is a precursor to § 1326. The Supreme Court, however, has cautioned federal courts not to attribute the unjust prejudices of certain legislators to an entire legislative body. Moreover, even the motivations of earlier legislative bodies provide only limited evidence of improper motivation for later enactments. This presents a serious hurdle for Mr. Machic-Xiap's motion. In addition, Mr. Machic-Xiap presents scant evidence showing the existence of other indicators described by the Supreme Court, such as racist statements by "many prominent" supporters of the challenged law (here, § 1326, not the 1929 Act), procedural or substantive irregularities in the enactment of the challenged law, or a "sequence of events" suggesting that racial animus motivated Congress to enact the challenged law. The lack of evidence on these points further hampers Mr. Machic-Xiap's argument.

Racism is an invidious and, unfortunately, continuing presence in the United States. Mr. Machic-Xiap has presented strong and disconcerting evidence about the role that racism has played in the enactment, reenactment, and revision of the nation's immigration laws, especially those passed in the first three decades of the 20th century. Mr. Machic-Xiap has not, however, satisfied his heavy burden of proving that racism motivated Congress to enact § 1326 specifically. Without such evidence, the Court may not, consistent with both established Supreme Court precedent and appropriate regard for the separation of powers among the branches of government,

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strike down a facially neutral congressional enactment as unconstitutionally motivated. For this reason, the Court must deny Mr. Machic-Xiap's motion to dismiss the indictment. As noted below, however, when enacting future immigration legislation, especially comprehensive immigration legislation, a future Congress may explicitly disavow earlier expressions of past racism. Indeed, a healthy respect for the principle of a nation learning from its mistakes may even advise Congress to do so.

STANDARDS

The Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Although the words "equal protection" do not appear in the Fifth Amendment's text, the Fifth Amendment's Due Process Clause includes an equal protection component and "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo , 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). A facially neutral statute can violate equal protection principles if it both has a racially disparate impact and the legislative body was motivated to enact the statute at least in part by racism. See Arlington Heights , 429 U.S. at 265-66, 97 S.Ct. 555.

"Inquiries into congressional motives or purposes are a hazardous matter." United States v. O'Brien , 391 U.S. 367, 383, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ; see also Hunter v. Underwood , 471 U.S. 222, 228, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) ("Proving the motivation behind official action is often a problematic undertaking."). "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights , 429 U.S. at 266, 97 S.Ct. 555. Because "[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one," a more nuanced analysis is necessary. Id. at 265, 97 S.Ct. 555.

To assist with this delicate endeavor, the Supreme Court has provided a non-exhaustive list of factors to consider when determining whether government action has as a motivating factor an invidious purpose. First, "[t]he historical background of the decision is one evidentiary source." Id. at 267, 97 S.Ct. 555. Second, "[t]he specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes." Id. Third, significant "[d]epartures from the normal procedural sequence" or "[s]ubstantive departures" from "the factors usually considered important by the decisionmaker" "might afford evidence that improper purposes are playing a role." Id. Fourth, whether the effect of the action " ‘bears more heavily on one race than another’ may provide" evidence of animus. Id. at 266, 97 S.Ct. 555 (quoting Washington v. Davis , 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ) (citation omitted).

Finally, the legislative history of a statute, "especially where there are contemporary statements by members of the decisionmaking body" is sometimes probative. Id. at 268, 97 S.Ct. 555. Courts must use caution, however, when seeking to glean a legislature's motivations from the statements of a handful of lawmakers. See O'Brien , 391 U.S. at 383-84, 88 S.Ct. 1673 (noting that although reliance on legislative history is appropriate when courts interpret ambiguous statutes, "[i]t is entirely a different matter when we are

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asked to void a statute that is, under well-settled criteria, constitutional on its...