United States v. Rodriguez-Arevalo
| Decision Date | 16 May 2022 |
| Docket Number | Crim. No. 1:19-CR-00281 |
| Citation | 603 F.Supp.3d 142 |
| Parties | UNITED STATES of America v. Cesar RODRIGUEZ-AREVALO |
| Court | U.S. District Court — Middle District of Pennsylvania |
Jaime M. Keating, Joanne M. Sanderson (T), Assistant US Attorney, United States Attorney's Office, Harrisburg, PA, Paul J. Miovas, Jr., Assistant US Attorney, DOJ-USAO, Harrisburg, PA, for United States of America.
Ari D. Weitzman, Public Defender, Federal Public Defender, Harrisburg, PA, for Cesar Rodriguez-Arevalo.
Before the court is a motion to dismiss the indictment filed by Defendant Cesar Rodriguez-Arevalo ("Rodriguez-Arevalo"). (Doc. 26.) The motion alleges that the indictment should be dismissed because the statute under which Rodriguez-Arevalo was indicted violates his right to equal protection under the law pursuant to the Fifth Amendment of the United States Constitution. (Id. ) For the following reasons, the court will deny the motion to dismiss the indictment.
Rodriguez-Arevalo is a native and citizen of El Salvador. (Doc. 32, p. 8.) On November 18, 2008, he was removed from the United States to El Salvador through Harlingen, Texas. (Id. ) On January 10, 2018, Rodriguez-Arevalo was arrested by the Waynesboro Police Department for various sex offense charges. (Id. ) A fingerprint comparison was completed, confirming his identity and that he was previously removed but had illegally re-entered the United States without permission. (Id. ) On December 19, 2018, Rodriguez-Arevalo was convicted of numerous sex offenses and was sentenced to a minimum of 117 months of confinement. (Id. , at 8–9.)
On July 21, 2021, Rodriguez-Arevalo was charged by indictment with a single count of illegal reentry in violation of 8 U.S.C. § 1326. (Doc. 26, ¶ 1.) On August 13, 2021, Rodriguez-Arevalo appeared before Magistrate Judge Susan E. Schwab for an initial appearance and arraignment, at which time he entered a plea of "not guilty" to the Indictment. (Id. , at ¶ 2.)
On March 11, 2022, Rodriguez-Arevalo filed the instant motion to dismiss the indictment, arguing that 8 U.S.C. § 1326 violates the Fifth Amendment's guarantee of equal protection. (Doc. 26.) Specifically, Rodriguez-Arevalo argues that 8 U.S.C. § 1326 was enacted with racially discriminatory intent and has a disparate impact on Latinx individuals, and is therefore unconstitutional under Village of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The Government filed a brief in opposition on March 25, 2022. (Doc. 32.) Rodriguez-Arevalo filed a reply brief. (Doc. 36.) Thus, this motion is ripe for review.
In 1929, Congress enacted the Undesirable Aliens Act, which provided that "[a]ny alien who hereafter enters the United States at any time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials ... shall be guilty of a misdemeanor." Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2. The Immigration and Nationality Act of 1952 ("INA"), the first comprehensive immigration law, recodified existing provisions under Title 8 of the U.S. Code and continued to criminalize unlawful entry under Section 1326. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 229.
Rodriguez-Arevalo has presented legislative history for the 1929 law, the declaration of Professor Kelly Lytle Hernandez, and a declaration of Professor Benjamin Gonzalez O'Brien supporting his contention that members of the 1929 Congress sought to criminalize unlawful entry, at least in part, because of their endorsement of eugenics and opposition to Mexican immigration specifically. (See Docs. 27-1 – 27-11 & 27-13 – 27-15.) Rodriguez-Arevalo also attached a transcript from the evidentiary hearing held in another case challenging the same statute on the same grounds. (Doc. 27-12.)
Professor Lytle Hernandez's declaration states that racial animus motivated the author of the bill criminalizing entry and re-entry without authorization. (Doc. 27-1, p. 2.) She further states that the politics of white supremacy dominated the politics of immigration control at the time and that the criminalization of unauthorized entry was a racially motivated act. (Id. ) She defines the 1920s as the "Tribal Twenties’—a time when the Ku Klux Klan was reborn, Jim Crow came of age, and public intellectuals preached the science of eugenics," and she attributes the 1929 Act to a rise in anti-Mexican sentiment and a corresponding increase of "Nativists" in Congress. (Id. , at 3.)
Congress passed the INA in 1952. Unlike previous piecemeal immigration legislation, the INA was a comprehensive immigration statute designed to "revise the laws relating to immigration, naturalization, and nationality." Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 229. Professor Gonzalez O'Brian’s declaration states that explicit racist attitudes became socially less acceptable in the 1940s and 1950s, and that braceros2 were largely portrayed as non-threatening disposable laborers, while undocumented immigrants were labeled "wetbacks," who were seen as a threat to the racial purity of the country, as they were not guaranteed to return to Mexico when their labor was no longer needed, as the braceros were. (Doc. 27-2, pp. 15–16.) In his view, Mexicans who were not laborers were also seen as criminals, drug dealers, smugglers, prostitutes, and homosexuals.
(Id. , at 16.) He also provides quotes from some individual legislators using the "wetback" slur and demonstrating eugenicist and racist views toward Mexicans at that time. (Id. , at 17).
At the outset, the court notes that the parties dispute the standard of review that should apply in this case. Rodriguez-Arevalo asserts that the court should apply the standard set forth in Arlington Heights because it is a facially neutral law that has a racially disparate impact and the legislative body was motivated to enact the statute, at least in part, by racism. (Doc. 27, pp. 5, 7–8.) Conversely, the Government contends that federal immigration laws are the exception to this rule. (Doc. 32, p. 7.) The Government's argument is based on the broad deference afforded to Congress in the area of immigration. (Id. , at 7–8.) The Government thus urges the court to apply the "facially legitimate and bona fide" standard, which is equivalent to rational basis. See Breyer v. Meissner , 214 F.3d 416, 422 (3d Cir. 2000) ().
Historically, the judicial branch has afforded broad deference to the other two branches of government in immigration matters. See Harisiades v. Shaughnessy , 342 U.S. 580, 588–89, 72 S.Ct. 512, 96 L.Ed. 586 (1952) () However, all criminal defendants are entitled to the constitutional guarantee of due process secured by the Fifth Amendment, regardless of immigration status. See Wong Wing v. United States , 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (); United States v. Mendoza-Lopez , 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ().
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).
While not argued by either party, the court observes that in the case of Regents of the Univ. of California v. U.S. Dep't of Homeland Sec. , the Ninth Circuit and a plurality of the Supreme Court recently declined to apply the rational basis standard when evaluating an equal protection challenge to immigration decisions made by the executive branch. See Regents of the Univ. of California v. U.S. Dep't of Homeland Sec. , 908 F.3d 476, 520 (9th Cir. 2018) rev'd in part, vacated in part sub nom. Dept’ of Homeland Sec. v. Regents of the Univ. of California , ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020).
Regents involved the repeal of the Deferred Action for Childhood Arrivals ("DACA") by the Acting Secretary of the Department of Homeland Security. The Ninth Circuit applied the Arlington Heights standard of review to the executive decision repealing immigration enforcement policies, rather than applying rational basis because the decisions involved immigration. Regents of the Univ. of California , 908 F.3d at 520. The Supreme Court likewise applied Arlington Heights to the equal protection challenge. Regents , 140 S. Ct. at 1916. See also Ramos v. Wolf , 975 F.3d 872, 896 (9th Cir. 2020) ().
Contrary to the Government's assertion, it is evident that not all immigration-related decisions, whether made by the executive branch or the legislative branch, are subject to rational basis review. The court finds that the appropriate standard of review here, when faced with an equal protection...
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