5 - Opening Brief For Review. Submitted by Appellant USA

Case: 21-10233, 11/19/2021, ID: 12293159, DktEntry: 5, Page 1 of 78
No. 21-10233
United States Court of Appeals

For the Ninth Circuit
____________________
UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
GUSTAVO CARRILLO-LOPEZ,
Defendant-Appellee.
____________________
On Appeal From The United States District Court For The

District of Nevada, No. 3:20-cr-26 (Du, C.J.)
____________________
OPENING BRIEF FOR THE UNITED STATES

____________________
CHRISTOPHER CHIOU KENNETH A. POLITE, JR.

Acting United States Attorney Assistant Attorney General
ELIZABETH O. WHITE LISA H. MILLER

Appellate Chief Acting Deputy Assistant Attorney General
PETER H. WALKINGSHAW
Assistant United States Attorney SCOTT A.C. MEISLER
District of Nevada Appellate Section, Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-3803
[email protected]
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................... iii
INTRODUCTION ...................................................................................... 1
JURISDICTION AND BAIL STATUS ....................................................... 3
STATEMENT OF THE ISSUE ................................................................... 3
STATEMENT OF THE CASE .................................................................... 4
A. Statutory Background ....................................................... 4
B. The District Court Holds Section 1326

Unconstitutional And Dismisses The Indictment ............... 8
SUMMARY OF ARGUMENT ................................................................. 14
STANDARD OF REVIEW ....................................................................... 17
ARGUMENT ........................................................................................... 19
I. SECTION 1326 IS CONSTITUTIONAL UNDER

RATIONAL-BASIS REVIEW, THE STANDARD
APPLICABLE TO AN EQUAL-PROTECTION
CHALLENGE TO A LAW THAT REGULATES THE
REMOVAL OF NONCITIZENS ............................................. 19
A. Section 1326 Is Constitutional Under Rational-Basis

Review ........................................................................... 19
B. The District Court Erred In Declining To Apply The

Rational-Basis Standard .................................................. 25
II. SECTION 1326 DOES NOT VIOLATE EQUAL

PROTECTION UNDER THE ARLINGTON HEIGHTS
STANDARD ........................................................................... 32
A. Legal Framework ........................................................... 32
i
B. Section 1326’s Impact on Latinx Defendants Does Not

Give Rise to an Inference of Discriminatory Intent........... 35
C. The District Court’s Finding of Discriminatory Intent

Rests on Errors of Law and Historical Fact. ..................... 40
1. The district court erred in treating

congressional silence as evidence of
discriminatory intent ......................................... 40
2. President Truman’s veto does not support an

inference of discriminatory intent ...................... 46
3. The district court misapprehended the Ford

letter and anti-harboring legislation .................... 47
4. The court gave excessive weight to

Congress’s supposed awareness of disparate
impact. ............................................................. 51
D. The Government Showed That Congress Would Have

Enacted Section 1326 Absent Discriminatory Intent ......... 54
CONCLUSION......................................................................................... 61
STATUTORY ADDENDUM .................................................................. A1
CERTIFICATE OF COMPLIANCE
STATEMENT OF RELATED CASES
ii
TABLE OF AUTHORITIES
CASES
Abbott v. Perez,
138 S. Ct. 2305 (2018).......................................................................passim
Almendarez-Torres v. United States,

523 U.S. 224 (1998) ................................................................................. 7
Amaya v. United States,

247 F.2d 947 (9th Cir. 1957) .................................................................. 49
Arce v. Douglas,
793 F.3d 968 (9th Cir. 2015) .................................................................. 39
Arizona v. United States,

567 U.S. 387 (2012) ............................................................................... 31
Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) ..........................................................................passim
Barton v. Barr,
140 S. Ct. 1442 (2020).............................................................................. 1
Bolling v. Sharpe,
347 U.S. 497 (1954) ............................................................................... 19
Bose Corp. v. Consumers Union of United States, Inc.,

466 U.S. 485 (1984) ............................................................................... 18
Brnovich v. DNC,
141 S. Ct. 2321 (2021)....................................................................... 35, 40
City of Mobile v. Bolden,

446 U.S. 55 (1980) ............................................................................ 34, 35
Comm. Concerning Community Improvement v. City of Modesto,

583 F.3d 690 (9th Cir. 2009) .................................................................. 40
iii
Democratic National Committee v. Hobbs,

948 F.3d 989 (9th Cir. 2020) (en banc) .................................................... 40
Dep’t of Homeland Security v. Thuraissigiam,

140 S. Ct. 1959 (2020)............................................................................ 31
Department of Homeland Security v. Regents of the University of California,

140 S. Ct. 1891 (2020).......................................................................passim
E. Bay Sanctuary Covenant v. Garland,

994 F.3d 962 (9th Cir. 2020), as amended (Apr. 8, 2021) ......................... 39
Easley v. Cromartie,
532 U.S. 234 (2001) ............................................................................... 19
Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020)............................................................................ 59
Fiallo v. Bell,
430 U.S. 787 (1977) ............................................................... 21, 22, 25, 32
Graham v. Richardson,
403 U.S. 365 (1971) ............................................................................... 20
Hampton v. Wong,
426 U.S. 88 (1976) ................................................................................. 20
Hayden v. Paterson,
594 F.3d 150 (2d Cir. 2010)............................................................... 46, 55
Heller v. Doe,
509 U.S. 312 (1993) ............................................................................... 21
Hernandez v. Mesa,
140 S. Ct. 735 (2020) ........................................................................ 31, 36
Hudson v. United States,

522 U.S. 93 (1997) ................................................................................. 24
Hunter v. Underwood,
471 U.S. 222 (1985) .................................................................... 18, 34, 54
iv
Johnson v. Governor of the State of Florida,

405 F.3d 1214 (11th Cir. 2005) (en banc) ................................ 35, 42, 44, 46
Johnson v. Kirkland,
290 F.2d 440 (5th Cir. 1961) .................................................................. 49
Kimbrough v. United States,

552 U.S. 85 (2007) ................................................................................. 42
Latino Officers Ass’n, New York, Inc. v. City of New York,

196 F.3d 458 (2d Cir. 1999)...................................................................... 1
Ledezma-Cosino v. Sessions,
857 F.3d 1042 (9th Cir. 2017) (en banc) ....................................... 21, 22, 23
Luft v. Evers,
963 F.3d 665 (7th Cir. 2020) .................................................................. 34
Mathews v. Diaz,
426 U.S. 67 (1976) ................................................................................. 20
McCleskey v. Kemp,
481 U.S. 279 (1987) ............................................................................... 35
Pena-Cabanillas v. United States,

394 F.2d 785 (9th Cir. 1968) .............................................................. 6, 23
Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ............................................................... 28, 34, 53, 54
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................... 32
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ............................................................................... 54
Ramos v. Louisiana,
140 S. Ct. 1390 (2020)............................................................................ 59
Ramos v. Wolf,
975 F.3d 872 (9th Cir. 2020) ............................................ 15, 30, 31, 37, 38
v
Reno v. Flores,
507 U.S. 292 (1993) ............................................................................... 21
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................... 28
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017)............................................................................ 20
Trump v. Hawaii,
138 S. Ct. 2392 (2018)............................................................ 20, 21, 22, 28
United Stated v. Coleman,

24 F.3d 37 (9th Cir. 1994) ...................................................................... 53
United States v. Amador-Bonilla,

No. 21-cr-187, 2021 WL 5349103 (W.D. Okla. Nov. 16, 2021) ................ 25
United States v. Arenas-Ortiz,

339 F.3d 1066 (9th Cir. 2003) ................................................................. 38
United States v. Ayala-Bello,

995 F.3d 710 (9th Cir.), cert. denied, 2021 WL 5284792
(U.S. Nov. 15, 2021) ................................................................... 21, 22, 24
United States v. Barajas-Guillen,

632 F.2d 749 (9th Cir. 1980) ............................................................. 22, 26
United States v. Calderon-Segura,

512 F.3d 1104 (9th Cir. 2008) ................................................................. 26
United States v. Christensen,

828 F.3d 763 (9th Cir. 2016) .................................................................. 18
United States v. Corrales-Beltran,

192 F.3d 1311 (9th Cir. 1999) ............................................................. 4, 45
United States v. Dumas,

64 F.3d 1427 (9th Cir. 1995) .................................................................. 53
vi
United States v. Evans,

333 U.S. 483 (1948) ............................................................................... 50
United States v. Ferreira,

275 F.3d 1020 (11th Cir. 2001) ............................................................... 26
United States v. Gallegos-Aparicio,

No. 19-cr-2637, 2020 WL 7318124 (S.D. Cal. Dec. 11, 2020) .................. 58
United States v. Gutierrez-Barba,

No. 19-cr-1224, 2021 WL 2138801 (D. Ariz. May 25, 2021) .................... 25
United States v. Hernandez-Guerrero,

147 F.3d 1075 (9th Cir. 1998) ...................................... 17, 23, 24, 25, 27, 55
United States v. Huerta-Pimental,

445 F.3d 1220 (9th Cir. 2006) ................................................................. 17
United States v. Lazarescu,

104 F. Supp. 771 (D. Md.), aff’d, 199 F.2d 898 (4th Cir. 1952) ................. 56
United States v. Lopez-Flores,

63 F.3d 1468 (9th Cir. 1995) .................................................................. 26
United States v. Machic-Xiap,

No. 3:19-cr-407, 2021 WL 3362738 (D. Or. Aug. 3, 2021) ....................... 47
United States v. Mendoza-Lopez,

481 U.S. 828 (1987) ...................................................................... 7, 44, 45
United States v. Novondo-Ceballos,

No. 21-cr-383, 2021 WL 3570229 (D.N.M. Aug. 12, 2021) ..................... 25
United States v. O’Brien,

391 U.S. 367 (1968) ............................................................................... 34
United States v. Ortiz-Martinez,

557 F.2d 214 (9th Cir. 1977) .................................................................. 41
United States v. Palomar-Santiago,

141 S. Ct. 1615 (2021).............................................................................. 8
vii
United States v. Rios-Montano,

No. 19-cr-2123, 2020 WL 7226441 (S.D. Cal. Dec. 8, 2020) .................... 27
United States v. Rizo-Rizo,

No. 20-50172, 2021 WL 5024364 (9th Cir. Oct. 29, 2021) .................. 23, 54
United States v. Ruelas-Arreguin,

219 F.3d 1056 (9th Cir. 2000) ................................................................... 7
United States v. Ruiz-Chairez,

493 F.3d 1089 (9th Cir. 2007) ................................................. 21, 22, 24, 26
United States v. Ruiz-Rivera,

No. 3:20-MJ-20306, 2020 WL 5230519 (S.D. Cal. Sept. 2, 2020) ............. 25
United States v. Rundo,

990 F.3d 709 (9th Cir. 2021), petition for cert. filed, No. 21-5952
(Oct. 8, 2021) ........................................................................................ 17
United States v. Samuels-Baldayaquez,

No. 4:20-cr-83, 2021 WL 5166488 (N.D. Ohio Nov. 5, 2021) ............. 25, 47
United States v. Sugden,

226 F.2d 281 (9th Cir. 1955) .................................................................. 49
United States v. Suquilanda,

No. 21-cr-263, 2021 WL 4895956 (S.D.N.Y. Oct. 20, 2021) .................... 59
United States v. Vasilatos,

209 F.2d 195 (3d Cir. 1954).................................................................... 56
United States v. Washington,

797 F.2d 1461 (9th Cir. 1986) ................................................................. 18
United States v. Wence,

No. 3:20-cr-27, 2021 WL 2463567 (D. V.I. June 16, 2021) ................. 25, 52
Vartelas v. Holder,
566 U.S. 257 (2012) ................................................................................. 8
viii
Washington v. Davis,
426 U.S. 229 (1976) ............................................................................... 32
Wayte v. United States,

470 U.S. 598 (1985) .......................................................................... 20, 53
Wong v. United States,

373 F.3d 952 (9th Cir. 2004) .................................................................. 28
Wong Wing v. United States,

163 U.S. 228 (1896) .......................................................................... 26, 27
Zadvydas v. Davis,
533 U.S. 678 (2001) ............................................................................... 30
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017)............................................................................ 31
Zuber v. Allen,
396 U.S. 168 (1969) ............................................................................... 42
STATUTES AND CONSTITUTIONAL PROVISIONS
U.S. Const. amend. V ................................................................................ 19
U.S. Const. art. I., § 8, cl. 4 ........................................................................ 32
8 U.S.C. § 1324 .......................................................................................... 50
8 U.S.C. § 1325 .......................................................................................... 25
8 U.S.C. § 1326 .....................................................................................passim
18 U.S.C. § 3231 .......................................................................................... 3
18 U.S.C. § 3731 .......................................................................................... 3
Act of March 4, 1929,

Pub. L. No. 70-1018, 45 Stat. 1551 ........................................................... 5
Act of Oct. 16, 1918,

Pub. L. No. 65-221, 40 Stat. 1012 ............................................................. 4
ix
Crime Control and Law Enforcement Act of 1994,

Pub. L. No. 103-322, 108 Stat. 1796 ......................................................... 7
Immigration Act of 1917,

Pub. L. No. 64-301, 39 Stat. 874 .......................................................... 4, 5
Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4978 .............................................. 7, 57, 58
Immigration and Nationality Act of 1952,

Pub. L. No. 82-414, 66 Stat. 163 ............................................... 6, 7, 44, 45
Omnibus Consolidated Appropriations Act of 1997,

Pub. L. No. 104-208, 110 Stat. 3009 ......................................................... 8
Pub. L. No. 100-690, 102 Stat. 4181 (1988) ................................................... 7
Pub. L. No. 104-132, 110 Stat. 1214 (1996) ............................................. 8, 57
Pub. L. No. 82-283, 66 Stat. 26 (1952) ........................................................ 50
OTHER AUTHORITIES
70 Cong. Rec. 3542 (1929)............................................................................ 5
70 Cong. Rec. 4952 (1929)............................................................................ 5
98 Cong. Rec. 5169 (1952).......................................................................... 41
98 Cong. Rec. 5768 (1952).......................................................................... 41
98 Cong. Rec. 791 (1952) ........................................................................... 51
98 Cong. Rec. 794 (1952) ........................................................................... 51
98 Cong. Rec. 795 (1952) ...................................................................... 51, 56
DHS, 2019 Yearbook of Immigration Statistics, Table 41, at

https://www.dhs.gov/immigration-
statistics/yearbook/2019/table41 ........................................................... 38
x
E.P. Hutchinson, Legislative History of American Immigration Policy,

1798-1965 (1981) ................................................................................ 5, 51
H.R. Rep. No. 70-2418 (1929) ...................................................................... 6
Harry S. Truman, “Special Message to the Congress on the

Employment of Agricultural Workers from Mexico” (July 13,
1951), at https://www.trumanlibrary.gov/library/public-
papers/154/special-message-congress-employment-agricultural-
workers-mexico ..................................................................................... 49
S. 2842, 82d Cong., 2d Sess. (Mar. 12, 1952) ............................................... 41
S. 716, 82nd Cong., 1st Sess. (Jan. 29, 1951) ............................................... 50
S. Rep. No. 70-1456 (1929).......................................................... 6, 24, 55, 56
S. Rep. No. 81-1515 (1950)..................................................................... 6, 45
xi
INTRODUCTION
For almost a century, federal law has made it a crime for a noncitizen
previously ordered removed from the United States to reenter without proper
authorization.1 Neither then nor now has the statutory language distinguished
among noncitizens by their race or ethnicity, instead imposing criminal penalties
on “any alien” who, after removal, enters, attempts to enter, or is found in the
United States. 8 U.S.C. § 1326(a).
The district court in this case nevertheless held that Section 1326 violates
the equal-protection component of the Fifth Amendment by discriminating
against Mexican and Latinx individuals. 1-ER-2, 9. The court concluded that
Section 1326 has a disparate impact on such individuals; the Congresses that
enacted both a predecessor statute in 1929 and Section 1326 in 1952 were
motivated at least in part by discriminatory intent; and the amendments since
that time do not suffice to “cleanse[] the statute” of its alleged taint. 1-ER-43.
As the court recognized, its ruling invalidating a facially neutral federal
statute based on the supposedly discriminatory intent of prior Congresses is
1
Except when quoting from a statute or judicial decision, this brief uses
the term “noncitizen” as equivalent to the statutory term “alien.” See Barton v.
Barr, 140 S. Ct. 1442, 1446 n.2 (2020). It uses the term “Latino” interchangeably
with “Latinx,” the term employed by the district court. Cf. Latino Officers Ass’n,
New York, Inc. v. City of New York, 196 F.3d 458, 460 n.1 (2d Cir. 1999). Citations
are to the Excerpts of Record (ER).
“unprecedented.” 1-ER-35. It is also wrong. The court committed a threshold
legal error by probing the motives of legislators decades ago rather than
reviewing the current statute under the rational-basis standard, which is the
metric that governs equal-protection challenges to laws—such as Section 1326—
that pertain to immigration controls. Section 1326 plainly passes constitutional
muster under that standard because it serves the legitimate purpose of deterring
violations of the country’s immigration laws.
But even if more searching review were appropriate, the district court
made multiple mistakes of law and fact that require reversal. The court
contravened one recent Supreme Court decision by treating the share of Latinx
individuals among Section 1326 defendants as evidence of discriminatory intent,
despite the obvious alternative explanation that those numbers are attributable
to geography and the high percentage of such individuals among the population
of noncitizens unlawfully in the United States. Contrary to another recent
decision, the court faulted the Congress that enacted the Immigration and
Nationality Act (INA) in 1952 for failing to purge the discriminatory taint that
the court found in the 1929 law. The court also misconstrued key aspects of the
historical record in ascribing discriminatory intent to the Congress that enacted
the INA, a centerpiece of modern immigration law. And the court cast aside
Congress’s repeated amendments to the illegal-reentry statute, and the sound
2
justifications for the law, in finding insufficient evidence that Section 1326
would have been enacted absent any discriminatory motive.
In committing these errors, the district court invalidated a widely applied
statute and reached a result at odds with the decisions of every other court to
consider the question. This Court should reverse.
JURISDICTION AND BAIL STATUS
The United States appeals the district court’s August 18, 2021 order
dismissing the indictment against defendant-appellee Gustavo Carrillo-Lopez
(Carrillo). 1-ER-44. The government timely noticed an appeal on August 19,
2021. 4-ER-608-09. The district court had jurisdiction under 18 U.S.C. § 3231.
This Court has jurisdiction under 18 U.S.C. § 3731.
Carrillo is currently in the custody of the Nevada Department of
Corrections serving an indeterminate state sentence, with parole eligibility
beginning in June 2029. See https://ofdsearch.doc.nv.gov/form.php (entry for
Gustavo Lopez, Offender ID 1231425).
STATEMENT OF THE ISSUE
Whether the illegal-reentry statute, 8 U.S.C. § 1326, intentionally
discriminates against Mexican and Latinx individuals in violation of the equal-
protection component of the Fifth Amendment’s Due Process Clause.
3
STATEMENT OF THE CASE
A. Statutory Background
This appeal concerns the constitutionality of the federal illegal-reentry
statute, which makes it a crime when “any alien who ... has been,” inter alia,
“denied admission, excluded, deported, or removed ... enters, attempts to enter,
or is at any time found in, the United States,” without appropriate authorization.
8 U.S.C. § 1326(a). The base offense is punishable by a fine and up to two years’
imprisonment. Id. Higher maximum sentences of 10 and 20 years apply if the
defendant was removed after being convicted for certain crimes, depending on
their nature or gravity. Id. § 1326(b)(1)-(4).
Section 1326 traces its roots to 1917, when Congress enacted the first
criminal reentry statute. See United States v. Corrales-Beltran, 192 F.3d 1311, 1319
(9th Cir. 1999) (1917 law was a “precursor” to Section 1326). That provision
made it a misdemeanor for a limited class of noncitizens deported for immoral
acts to “attempt thereafter to return to or to enter the United States.”
Immigration Act of 1917, Pub. L. No. 64-301, § 4, 39 Stat. 874, 878-879. The
following year, Congress made it a felony punishable by up to five years’
imprisonment for those deported for being a member of the anarchistic and
similar classes to “return to or enter the United States or attempt to” do so. Act
of Oct. 16, 1918, Pub. L. No. 65-221, § 3, 40 Stat. 1012.
4
In cases not involving these two classes of noncitizens, however, no
sanction other than repeatedly deporting illegal reentrants existed until 1929.
See Pub. L. No. 64-301, § 19, 39 Stat. 889. That year, Congress passed “[a]n Act
Making it a felony with penalty for certain aliens to enter the United States of
America under certain conditions in violation of law.” Act of March 4, 1929,
Pub. L. No. 70-1018, 45 Stat. 1551 (“1929 Act”).2 Section 1(a) of the Act
provided that “any alien ... arrested and deported in pursuance of law” would
“be excluded from admission to the United States” and that, “if he enters or
attempts to enter the United States” thereafter, “he shall be guilty of a felony”
punishable by a fine and up to two years’ imprisonment. The 1929 Act
responded to concerns expressed by Congress and the Department of Labor—
which at the time administered the immigration laws—that the possibility of
renewed deportation was insufficient to dissuade those who had been removed
from returning and that criminal penalties were therefore needed as an added
2
The 1929 Act was not titled “the Undesirable Aliens Act,” as Carrillo
asserted and the district court stated. 1-ER-7 & n.9; 4-ER-557, 572, 578. A more
expansive bill bearing that name was introduced in the House. See H.R. Rep.
No. 70-2418, at 12 (Feb. 7, 1929) (Sec. 10); 70 Cong. Rec. 3542 (Feb. 15, 1929).
But the Senate rejected several portions of that proposal, including its title. See
E.P. Hutchinson, Legislative History of American Immigration Policy, 1798-1965, pp.
209-10 (1981). And the House ultimately relented. See 70 Cong. Rec. 4952
(Mar. 1, 1929) (explaining the development of the Act and “[t]hat the House
recede[d] from its amendment to the title of the bill”).
5
deterrent. See S. Rep. No. 70-1456, at 1-2 (Jan. 17, 1929); H.R. Rep. No. 70-
2418, at 6 (Feb. 7, 1929).
Congress revisited the criminal reentry statute 23 years later as part of the
Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat.
163. The INA “represents the final product of a most intensive and searching
investigation and study over a three[-]year period.” Pena-Cabanillas v. United
States, 394 F.2d 785, 790 (9th Cir. 1968). Congress had authorized the Senate
Judiciary Committee “to make a full and complete investigation of our entire
immigration system” and to provide “recommendations for changes in the
immigration and naturalization laws as it may deem advisable.” S. Rep. No.
81-1515, at 803 (1950). As relevant here, the Committee’s resulting 925-page
report described “difficulties encountered in getting prosecutions and
convictions” under existing laws “relating to illegal entry and smuggling of
aliens,” “especially in the Mexican border area.” Id. at 654-55. It also noted
that existing law criminalized illegal reentry in different provisions subject to
different penalties and “suggested that one act would suffice for all persons who
have been deported, regardless of the reason therefor.” Id. at 655.
Congress responded with Section 276 of the INA, codified as Section
1326. In line with the Judiciary Committee’s recommendation, the INA elimi-
nated the disparate penalties applicable to reentry defendants depending on the
6
basis for their deportation, creating instead a single offense that subjected all
reentry defendants to the same penalties as the 1929 Act: two years’ imprison-
ment and a fine. Pub. L. No. 82-414, § 276, 66 Stat. 230; see United States v.
Mendoza-Lopez, 481 U.S. 828, 835-36 (1987). The statute also sought to offset
some difficulties in enforcing prior statutes by adding a new basis for liability:
“being ‘found in’ the United States” after a prior deportation, a “continuing”
offense that “commences with the illegal entry, but is not completed until” the
defendant is discovered. United States v. Ruelas-Arreguin, 219 F.3d 1056, 1061
(9th Cir. 2000) (quoting 8 U.S.C. § 1326(a)(2)); see 3-ER-437.
Section 1326 has been amended on several occasions since 1952, often
with an eye toward increasing its deterrent effect. 1-ER-7-9 & nn.9-11
(describing the changes). In 1988, Congress enacted what is now Section
1326(b) to prescribe enhanced penalties for defendants with prior felony convic-
tions. Pub. L. No. 100-690, § 7345, 102 Stat. 4181, 4471 (1988); see Almendarez-
Torres v. United States, 523 U.S. 224, 229 (1998). Congress increased the appli-
cable fines two years later in the Immigration Act of 1990, Pub. L. No. 101-649,
§ 543, 104 Stat. 4978, 5059, and again upped the penalties in the Crime Control
and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130001, 108 Stat.
1796, 2023. In 1996, Congress enacted Section 1326(d) in response to the
Supreme Court’s decision in Mendoza-Lopez, supra, which had held that the
7
statute may violate due process absent an opportunity for the defendant to chal-
lenge the validity of the prior removal order. Pub. L. No. 104-132, § 441(a), 110
Stat. 1214, 1279; see United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619
(2021). Later that year, Congress updated Section 1326 to add a new penalty
provision, to expand the class of prosecutable defendants to include those who
“ha[ve] departed the United States while an order of exclusion, deportation, or
removal is outstanding,” and to align the statute with other changes to
immigration law enacted in 1996. Omnibus Consolidated Appropriations Act
of 1997, Pub. L. No. 104-208, 110 Stat. 3009, 3009-606, 3009-618 to 3009-620,
3009-629; see Vartelas v. Holder, 566 U.S. 257, 261-62 (2012).
B. The District Court Holds Section 1326 Unconstitutional

And Dismisses The Indictment
1. Carrillo is a citizen of Mexico who was removed from the United States
on two prior occasions, most recently in 2012. 4-ER-607. Following that
removal, Carrillo reentered the United States at an unknown time. He came to
the attention of immigration authorities in June 2019 after being convicted on
state drug charges, for which he was sentenced to life imprisonment with the
possibility of parole after 10 years. 4-ER-600, 606.
In June 2020, the grand jury charged Carrillo with illegal reentry following
a prior removal, in violation of Section 1326(a). 4-ER-606-07. The indictment
further alleged that Carrillo was subject to the enhanced penalties in Section
8
1326(b) because of his prior convictions, 4-ER-607; 1-ER-42 n.43, which include
a felony conviction for possessing controlled substances and a misdemeanor
conviction for inflicting corporal injury on a spouse. 4-ER-600-02.
2. Carrillo moved to dismiss the indictment, arguing that Section 1326
violates the Fifth Amendment’s equal-protection guarantee. He contended that
the 1929 predecessor to Section 1326 was motivated at least in part by discrimi-
natory animus toward Latinx individuals and that more recent statutes applying
the same prohibition “do not cleanse the law of its original taint.” 4-ER-574.
Carrillo supported his position with a declaration from a professor who had writ-
ten on the history and politics of immigration. 4-ER-582-90. And he argued
that, under the framework set forth in Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), the proof he presented of discriminatory
intent and disparate impact on Latinx individuals shifted the burden to the gov-
ernment to show that the law would have been passed absent discriminatory
purposes. 4-ER-559-77.
In opposing the motion, the government argued that Arlington Heights was
the wrong framework and that Carrillo’s challenge should be subject to rational-
basis review under precedents requiring deference to the political branches in the
immigration context. 4-ER-523-31. But the claim failed even under Arlington
Heights, the government argued, because the relevant law was not the 1929 Act
9
but Section 1326 as enacted in 1952 and subsequently amended; Carrillo cited
no evidence that those laws have a discriminatory motive; and his claim of
disparate impact on Latinx individuals was likewise misplaced. 4-ER-531-45.
The district court heard argument on Carrillo’s motion and, over the gov-
ernment’s opposition (4-ER-489), later held an evidentiary hearing to take
testimony from two defense experts. 2-ER-62-259. The court then ordered
briefing on whether any discriminatory intent found to have motivated the 1929
Act tainted Section 1326 as enacted in 1952. 1-ER-16 n.18.
3. After considering the post-hearing submissions, the district court
granted Carrillo’s motion to dismiss, holding that Section 1326 “violates the
equal protection guarantee of the Fifth Amendment.” 1-ER-2.
a. The district court declined to review Carrillo’s challenge under the
deferential standard applicable in other immigration-related contexts. 1-ER-3-
6. The court instead reasoned “that greater protections under the Fifth
Amendment necessarily apply” when criminal punishment is at issue. 1-ER-4.
It also relied on recent appellate decisions applying the Arlington Heights standard
to federal actions that withdrew previously granted immigration benefits. 1-ER-
4-5. In particular, the court understood the Supreme Court to have endorsed
this Court’s application of the Arlington Heights standard in Department of
Homeland Security v. Regents of the University of California, 140 S. Ct. 1891 (2020)
10
(Regents). 1-ER-4 n.4. Other Ninth Circuit criminal cases that conducted
rational-basis review were distinguishable, in the court’s view, because they
involved classifications based on “alienage,” not “race and national origin.” 1-
ER-4.
b. The district court next concluded that Carrillo made the required show-
ings under the Arlington Heights framework. Citing reports that between 85 and
97 percent of persons apprehended at the border “were of Mexican de[s]cent,”
the court concluded that Section 1326 has a disparate impact on Mexican and
Latinx defendants. 1-ER-10. The court rejected as “circular and inconclusive”
the government’s argument that the disparity was attributable to geography and
the fact that Mexican citizens make up a disproportionately high percentage of
the overall population of noncitizens illegally in the United States. 1-ER-10-12.
Although the government based that argument on the reasoning in Regents,
supra, the court distinguished Regents on the ground that it addressed “disparate
impact alone,” not the combination of impact and intent. 1-ER-12 & n.6.
The district court concluded that both the first general illegal-reentry
statute passed in 1929 and Section 1326 as enacted in 1952 were motivated at
least in part by discriminatory intent. 1-ER-13-35. The court noted at the outset
that, at the motions hearing, the government had conceded “that discriminatory
11
intent motivated the passage of the [1929] Act.” 1-ER-13 & n.17.3 Apart from
the concession, the court relied on testimony from a defense expert that the 1929
Act was passed under the influence of nativists and eugenics supporters, as well
as statements in the legislative record. 1-ER-14-16.
The court then turned to Section 1326’s enactment as part of the INA in
1952. 1-ER-16-35. In so doing, the court appeared to reject the government’s
argument that, under Abbott v. Perez, 138 S. Ct. 2305 (2018), the 1952 Act was
entitled to a presumption of good faith despite a finding of past discrimination.
1-ER-18 & n.21. The court took the view that, if Abbott is applicable at all
outside of the redistricting context, it does not shield subsequent legislation from
the taint of prior discrimination in situations where the “reenacted statute is
nearly identical to its improper predecessor,” id., which the court found to be
true of Section 1326. 1-ER-28-31, 34-35.
The court identified five considerations that, in their “totality,”
3
To be clear, the cited concession was limited: the prosecutor agreed only
that the record contained information satisfying Carrillo’s burden under the first
step of the Arlington Heights analysis, 4-ER-482-83, not that the 1929 Act was
ultimately unconstitutional. Although the government does not seek to revisit
that concession for purposes of this appeal, we have come to believe that even
that limited concession was improvidently made. The United States has
accordingly argued in other cases that the historical record does not support the
conclusion that Congress as a whole was motivated in part by discriminatory
intent in enacting the 1929 Act.
12
“demonstrate that racial animus was at least one motivating factor behind the
enactment of Section 1326” in 1952. 1-ER-19. The court first deemed it
significant that the 1952 Congress did not engage in “[r]obust [d]ebate” over
Section 1326, whereas it did over “[o]ther instances of discriminatory
immigration policy.” Id. Next, the court observed that Congress passed Section
1326 over President Truman’s objection that the INA had not gone far enough
to remove race-related restrictions—a fact the court found to evince “at least
indifference to the nativist motivations of the” 1929 Act. 1-ER-22. The court
also believed that the only “substantive” change from the 1929 Act—the
creation of the continuing offense of being an alien “found in” the United States
after deportation—had been proposed in a Justice Department letter that quoted
a separate report referring to Mexicans as “wetbacks.” 1-ER-22-24. In a similar
vein, the court found it problematic that the INA was enacted only a few months
after anti-harboring legislation that some Members of Congress had colloquially
called the “Wetback Bill.” 1-ER-24-26. Lastly, the court gave weight to
Congress’s decision to “expand the grounds for deportation and carceral
punishment” despite its supposed “knowledge that Section 1326 continued to
disparately impact Mexican and Latinx people.” 1-ER-27.
c. After rejecting the reasoning of other decisions addressing the same
constitutional challenge to Section 1326, the district court held that the
13
government failed to show the statute would have been enacted absent
discriminatory intent. 1-ER-35-43. The court rejected the argument that three
interests acknowledged by defense experts—economic competition,
maintaining national security, and foreign relations—were factors independent
of race that would have prompted passage. 1-ER-36-39. The court also
“decline[d] to infer that Section 1326’s utility to the overall immigration
scheme,” as recognized by this Court, “justifies an inference of
nondiscriminatory motive.” 1-ER-39-40. And the court took the view that
Congress’s repeated amendments to Section 1326 since 1952 did not show that
it would have enacted the statute absent discriminatory intent. The court
reasoned that the amendments were not “‘substantive’” and “merely work[ed]
to increase Section 1326’s deterrent value,” and that at no time had Congress
“attempt[ed] ... to grapple with the racist history of Section 1326 or remove its
influence on the legislation.” 1-ER-41-42.
SUMMARY OF ARGUMENT
I. Carrillo’s challenge to Section 1326 is subject to—and fails under—
rational-basis review. Under Supreme Court and circuit precedent, that
standard applies in equal-protection challenges to federal laws that regulate the
admission and removal of noncitizens. Section 1326’s text, history, and purpose
confirm that it is such a law. And because the provision serves the legitimate
14
legislative end of deterring violations of the country’s immigration laws, it passes
muster under rational-basis review.
The district court’s reasons for subjecting Section 1326 to more searching
scrutiny under the Arlington Heights framework lack merit. This Court’s
decisions, including one rejecting a challenge to the illegal-reentry sentencing
guideline, refute the suggestion that a higher standard necessarily applies in
criminal cases. Application of the rational-basis standard would also not, as the
court below feared, immunize from judicial review congressional enactments
inexplicable on grounds other than racial animus. Nor do two recent decisions
addressing particular Executive Branch policies—Department of Homeland
Security v. Regents of the University of California, 140 S. Ct. 1891 (2020), and Ramos
v. Wolf, 975 F.3d 872 (9th Cir. 2020)—foreclose reviewing the challenge to this
federal immigration statute under the rational-basis standard.
II. Section 1326 is constitutional even under the Arlington Heights
framework. In concluding otherwise, the district court started from the mistaken
premise that the high percentage of Mexican and Latinx defendants in Section
1326 prosecutions gives rise to an inference of discriminatory intent, when that
effect is instead readily explained by geographical factors (the United States’
shared border with Mexico) and the characteristics of the noncitizen population
15
unlawfully present in this country. The district court’s contrary conclusion
disregards the logic of Regents and Ramos and amounts to legal error.
The district court also committed several other clear errors of law and
historical fact that require reversal. It declined to afford Section 1326 a
presumption of good faith despite (i) the substantive changes between the statute
as enacted in 1952 and the predecessor law the court found to be tainted, and
(ii) the absence of evidence that the 1952 Congress was even aware of the history
underlying the 1929 Act. The court erroneously inferred discriminatory intent
from President Truman’s veto of the INA, which did not expressly address
Section 1326 or allege discrimination against Latinx individuals; from the
appearance in the legislative debates of the term “wetback,” which did not
necessarily have in 1952 the same offensive connotations it has today; and from
pre-INA legislative and executive materials that the court misinterpreted. With
those errors corrected, the historical record cannot support a finding of
discriminatory intent.
Even if that finding were supportable, the district court separately erred
in determining that Congress would not have enacted Section 1326 absent its
supposed intent to discriminate against Mexican and Latinx persons. The
government bore the burden on that issue and carried it by identifying obviously
valid objectives served by Section 1326, which this Court has called “a necessary
16
piece of the immigration-regulation framework” because of its deterrent
purpose. United States v. Hernandez-Guerrero, 147 F.3d 1075, 1078 (9th Cir. 1998).
That purpose is confirmed by the legislative history of Section 1326’s
predecessor and the numerous amendments that Congress has made to the
statute since 1952—changes that the district court erroneously dismissed as non-
substantive. And, although Carrillo’s own expert recognized that Congress had
valid, non-discriminatory reasons for enacting Section 1326 (rooted in foreign
policy and national security), the district court discounted that testimony after
failing to consider the legitimate reasons in their totality.
For these reasons, the district court’s order invalidating Section 1326—
which is contrary to the decisions of all other courts to consider the same equal-
protection challenge—should be reversed.
STANDARD OF REVIEW
This Court reviews de novo “the constitutionality of a statute as a question
of law,” United States v. Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir. 2006), as
well as “the dismissal of an indictment on the ground that the underlying statute
is unconstitutional,” United States v. Rundo, 990 F.3d 709, 713 (9th Cir. 2021),
petition for cert. filed, No. 21-5952 (Oct. 8, 2021). Whether the district court
applied the correct legal standard—here, whether it erred in declining to conduct
17
rational-basis review—is also a question of law reviewed de novo. United States
v. Washington, 797 F.2d 1461, 1470 n.12 (9th Cir. 1986).
The district court’s constitutional ruling under the framework in Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), turned on
its subsidiary determination that Section 1326 was motivated in part by a
discriminatory purpose. That determination is a factual finding reviewed for
clear error. See Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018); Hunter v. Underwood,
471 U.S. 222, 229 (1985). A finding is clearly erroneous when “it is (1) illogical,
(2) implausible, or (3) without support in inferences that may be drawn from the
facts in the record.” United States v. Christensen, 828 F.3d 763, 779 (9th Cir. 2016)
(quotation marks omitted). While that standard is deferential, id., it “does not
inhibit an appellate court’s power to correct errors of law” that “infect” a district
court’s factual findings, Bose Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 501 (1984), including errors in applying the burden of proof. See
Abbott, 138 S. Ct. at 2326 (“[W]hether the court applied the correct burden of
proof is a question of law subject to plenary review.”). In addition, when, as
here, a court’s finding of discriminatory intent did not follow a trial, was not
based on credibility evaluations, and turned on the kind of publicly available
legislative materials that appellate courts routinely examine, a reviewing court
may more readily be “left with the definite and firm conviction that a mistake
18
has been committed.” Easley v. Cromartie, 532 U.S. 234, 242-43 (2001) (quota-
tion marks omitted).
ARGUMENT
I. SECTION 1326 IS CONSTITUTIONAL UNDER RATIONAL-BASIS

REVIEW, THE STANDARD APPLICABLE TO AN EQUAL-
PROTECTION CHALLENGE TO A LAW THAT REGULATES THE
REMOVAL OF NONCITIZENS
The district court held 8 U.S.C. § 1326 unconstitutional after inquiring
into the motivations of multiple Congresses. But the court never should have
undertaken that inquiry. Because Section 1326 is part of the immigration-
regulation framework, equal-protection challenges to it should be reviewed
under the rational-basis standard. The statute passes muster under that metric.
A. Section 1326 Is Constitutional Under Rational-Basis

Review
1. Carrillo’s challenge to Section 1326 arises under the Fifth Amendment
to the Constitution. Unlike the Fourteenth Amendment (which applies to the
States), the Fifth Amendment does not contain an express equal-protection
provision. Since 1954, however, the Supreme Court has construed the
Amendment’s guarantee of “due process of law” for all “person[s],” U.S. Const.
amend. V, to provide analogous protection. See Bolling v. Sharpe, 347 U.S. 497,
499 (1954). And the Court has generally applied the same equal-protection
standards in both contexts, see Wayte v. United States, 470 U.S. 598, 608 n.9
19
(1985), meaning that any law drawing (for example) gender-based lines would
have to satisfy heightened scrutiny. See Sessions v. Morales-Santana, 137 S. Ct.
1678, 1689-90 (2017).
Federal immigration laws are an exception to that general rule. See Hamp-
ton v. Wong, 426 U.S. 88, 100 (1976). While state statutes that distinguish be-
tween citizens and noncitizens remain subject to heightened scrutiny, see Graham
v. Richardson, 403 U.S. 365, 371-72 (1971), the Supreme Court has taken a dif-
ferent approach to federal laws drawing such distinctions, in deference to the
federal government’s exclusive authority over immigration matters. “For rea-
sons long recognized as valid,” the Court has explained, “the responsibility for
regulating the relationship between the United States and our alien visitors has
been committed to the political branches of the Federal Government.” Mathews
v. Diaz, 426 U.S. 67, 81 (1976). “Because decisions in these matters may impli-
cate ‘relations with foreign powers,’ or involve ‘classifications defined in the
light of changing political and economic circumstances,’ such judgments ‘are
frequently of a character more appropriate to either the Legislature or the Exec-
utive.’” Trump v. Hawaii, 138 S. Ct. 2392, 2418-19 (2018) (quoting Mathews, 426
U.S. at 81). “The reasons that preclude judicial review of political questions”
thus “also dictate a narrow standard of review of decisions made by the Congress
or the President in the area of immigration and naturalization,” Mathews, 426
20
U.S. at 81-82—including congressional enactments that “regulate the admission
and exclusion of aliens.” Fiallo v. Bell, 430 U.S. 787, 793 n.5 (1977).
This Court has equated that narrow standard of review with the rational-
basis test applied to other classifications that do not affect “fundamental rights
nor proceed along suspect lines,” Heller v. Doe, 509 U.S. 312, 319 (1993)
(quotation marks omitted). See, e.g., Ledezma-Cosino v. Sessions, 857 F.3d 1042,
1049 (9th Cir. 2017) (en banc). “Under the rational basis test, a federal policy
survives an equal protection challenge if there is a rational relationship between
the disparity of treatment and some legitimate governmental purpose.” United
States v. Ayala-Bello, 995 F.3d 710, 715 (9th Cir.) (quotation marks omitted), cert.
denied, 2021 WL 5284792 (U.S. Nov. 15, 2021). That form of review is
deferential. The government need not articulate the purpose underlying its
policy, id., or “produce evidence to sustain [its] rationality,” Heller, 509 U.S. at
320. Rather, “[t]he burden falls on the party” challenging the law “to disprove
the rationality” of the classification made, United States v. Ruiz-Chairez, 493 F.3d
1089, 1091 (9th Cir. 2007), including by negating any conceivable basis that
could support it, see Ayala-Bello, 995 F.3d at 715.
The Supreme Court and this Court have applied this “unexacting”
standard, Reno v. Flores, 507 U.S. 292, 306 (1993)—or arguably more deferential
ones, see Hawaii, 138 S. Ct. at 2419—to an array of challenges in civil and
21
criminal cases. The Court in Fiallo, for example, applied minimal scrutiny to a
law that drew a gender-based distinction by giving special immigration
preferences to mothers, but not fathers, of U.S. citizen children. 430 U.S. at 792-
99. In Ledezma-Cosino, this Court reviewed under the rational-basis standard a
law that barred “habitual drunkards” from qualifying for cancellation of
removal. 857 F.3d at 1048-49. And in the criminal context, this Court has
employed that standard in rejecting equal-protection challenges to provisions of
the Sentencing Guidelines applicable to “illegal reentrants,” Ruiz-Chairez, 493
F.3d at 1091; to a deportation order that formed the basis for a later illegal-
reentry prosecution under Section 1326, see United States v. Barajas-Guillen, 632
F.2d 749, 752 (9th Cir. 1980); and to an Executive Branch policy treating the
crime of illegally entering the United States differently from other petty offenses,
Ayala-Bello, 995 F.3d at 714-15. These decisions, and others, confirm the
Supreme Court’s recent statement that “a circumscribed [judicial] inquiry
applies to any constitutional claim concerning the entry of foreign nationals.”
Hawaii, 138 S. Ct. at 2420 n.5.
2. Carrillo’s constitutional challenge to Section 1326 is likewise subject
to—and fails under—the rational-basis standard. That standard applies to his
equal-protection challenge because Section 1326 is a law that regulates the
admission and removal of noncitizens. See Fiallo, 430 U.S. at 792-93 & n.5.
22
Long ago, this Court described Section 1326 as “a regulatory statute enacted to
assist in the control of unlawful immigration by aliens.” Pena-Cabanillas v. United
States, 394 F.2d 785, 788 (9th Cir. 1968); see United States v. Rizo-Rizo, No. 20-
50172, 2021 WL 5024364, at *4 (9th Cir. Oct. 29, 2021) (reaffirming this
language). Several aspects of the statute bear out that description. Section 1326
was enacted as part of the INA in 1952. See pp. 6-7, supra. It is codified in Title
8 alongside other immigration provisions. Most important, its “text ... plainly
reveals its immigration-regulation purpose.” United States v. Hernandez-Guerrero,
147 F.3d 1075, 1078 (9th Cir. 1998). “By threatening with criminal prosecution
any alien found in the United States who has previously been ‘excluded,
deported, or removed,’” this Court has explained, “Congress sought in § 1326
to give teeth to civil immigration statutes and to ensure compliance with civil
deportation orders.” Id. (quoting 8 U.S.C. § 1326(a)). The statute is thus “a
necessary piece of the immigration-regulation framework.” Id. And because
Section 1326 is part of that framework, equal-protection challenges to it are
subject to the same standard that applies to other claims in the immigration
context: rational-basis review. See Ledezma-Cosino, 857 F.3d at 1049 & n.4.
A contrary conclusion would lead to a stark anomaly. Decisions such as
Fiallo and Hawaii foreclose a searching judicial inquiry into legislative or
executive motivations even when the political branches have drawn express
23
distinctions that would trigger close scrutiny outside of the immigration context.
It would be strange if courts were nonetheless required to probe deeply into
legislative motives—“a substantial intrusion into the workings of” a coequal
branch, see Arlington Heights, 429 U.S. at 268 n.18—when an immigration law
that draws no such distinction on its face is alleged to discriminate based on race
or national origin. Applying rational-basis review to challenges such as
Carrillo’s avoids that odd result.
3. Section 1326 is constitutional under the rational-basis standard. The
relevant question is whether the challenged provision “bears some rational
relation to a legitimate government interest or purpose.” Ruiz-Chairez, 493 F.3d
at 1092. In Ruiz-Chairez, this Court recognized that “deterring illegal reentry” is
such an interest. Id.; see also Hudson v. United States, 522 U.S. 93, 105 (1997)
(calling deterrence “a traditional goal of criminal punishment”); Ayala-Bello, 995
F.3d at 715 (“[T]he federal government has a legitimate interest in controlling
our borders.”). And Section 1326 is rationally designed to advance that interest.
“[I]ts clear purpose is to deter aliens who have been forced to leave the United
States from reentering the United States.” Hernandez-Guerrero, 147 F.3d at 1078
(ellipses and quotation marks omitted); see S. Rep. No. 70-1456, at 1-2 (1929).
Indeed, “without the threat of criminal prosecution that it provides, Congress’s
immigration-regulation authority would be fatally undermined—all bark and no
24
bite.” Hernandez-Guerrero, 147 F.3d at 1078. As every district court to apply
rational-basis review to analogous challenges has held,4 Section 1326 is therefore
constitutional under that standard.
B. The District Court Erred In Declining To Apply The

Rational-Basis Standard
The district court did not dispute that Section 1326 passes constitutional
muster under rational-basis review or attempt to explain how the expansive
Arlington Heights inquiry that it deemed applicable can be reconciled with the
principle that it is “not the judicial role ... to probe and test the justifications for”
legislative policies in the immigration field. See Fiallo, 430 U.S. at 799. Instead,
the court gave two reasons for departing from the rational-basis standard: (1) the
standard is inapplicable in a challenge to a criminal statute such as Section 1326,
and (2) precedent requires application of Arlington Heights. 1-ER-3-6. Neither
reason withstands scrutiny.
1. First, this Court’s decisions refute any suggestion that a standard more
4
See, e.g., United States v. Amador-Bonilla, No. 21-cr-187, 2021 WL 5349103
(W.D. Okla. Nov. 16, 2021); United States v. Samuels-Baldayaquez, No. 4:20-cr-
83, 2021 WL 5166488, at *2 (N.D. Ohio Nov. 5, 2021); United States v. Novondo-
Ceballos, No. 21-cr-383, 2021 WL 3570229, at *4 (D.N.M. Aug. 12, 2021); United
States v. Wence, No. 3:20-cr-27, 2021 WL 2463567, at *10 (D. V.I. June 16, 2021);
United States v. Gutierrez-Barba, No. 19-cr-1224, 2021 WL 2138801, at *5 (D.
Ariz. May 25, 2021); see also United States v. Ruiz-Rivera, No. 3:20-MJ-20306,
2020 WL 5230519, at *4 (S.D. Cal. Sept. 2, 2020) (same for the illegal-entry
statute, 8 U.S.C. § 1325).
25
searching than rational basis must apply merely because Section 1326 prescribes
criminal penalties. As explained above, p. 22, supra, this Court has applied the
rational-basis standard to equal-protection challenges raised in criminal cases,
including a challenge to a Sentencing Guideline that implements Section 1326
and provides for a greater enhancement for “illegal reentrants … than other fel-
ons with the same prior criminal record.” Ruiz-Chairez, 493 F.3d at 1091; see also
Barajas-Guillen, 632 F.2d at 752 (applying rational-basis standard to defendant’s
collateral attack on a deportation order in a criminal case); United States v.
Calderon-Segura, 512 F.3d 1104, 1107 (9th Cir. 2008) (same); United States v.
Lopez-Flores, 63 F.3d 1468, 1471-75 (9th Cir. 1995) (same standard applies to
criminal statute that “classifies offenders on the basis of the offender’s and the
victim’s nationality”). While the district court distinguished some of these deci-
sions as addressing alienage classifications rather than neutral laws alleged to
discriminate based on race or ethnicity (1-ER-6), the cases nonetheless demon-
strate that the mere existence of a criminal penalty in an immigration statute has
not been understood to demand greater scrutiny. Cf. United States v. Ferreira, 275
F.3d 1020, 1025-26 (11th Cir. 2001) (rejecting a civil-criminal distinction).
The decision in Wong Wing v. United States, 163 U.S. 228 (1896), cited by
the district court (1-ER-4), is not to the contrary. Wong Wing addressed an 1892
statute providing that certain Chinese immigrants could “be imprisoned at hard
26
labor for a period of not exceeding one year” before they were removed from the
United States. 163 U.S. at 235. The Supreme Court held that the period of pre-
deportation imprisonment authorized under the statute was a criminal
punishment that could be imposed only after a “judicial trial” subject to the
protections of the Fifth and Sixth Amendments. Id. at 237-38; see also Hernandez-
Guerrero, 147 F.3d at 1077 (discussing Wong Wing). But Wong Wing did not
involve an equal-protection challenge; indeed, it predated by 60 years the
Supreme Court’s application of equal-protection principles to federal action. See
p. 19, supra. The Court’s decision therefore does not indicate what standard
governs in such a challenge, much less mandate exacting scrutiny for
immigration statutes that impose criminal penalties.
The district court also worried that applying rational-basis review would
render criminal immigration laws “free from constitutional equal protection
constraints” and “license [Congress] to enact racially discriminatory statutes.”
1-ER-4. Other courts have similarly suggested that, under the rational-basis
standard, courts would be “unable to review a criminal law that, on its face,
targets a particular racial group,” such as a law that “explicitly prescribed
harsher penalties for immigrants of Latin American descent.” United States v.
Rios-Montano, No. 19-cr-2123, 2020 WL 7226441, at *2 (S.D. Cal. Dec. 8, 2020).
Those concerns are unfounded. Applying rational-basis review (rather than
27
Arlington Heights) in a challenge to a facially neutral statute such as Section 1326
would not necessarily dictate the standard governing review of a statute that
drew an explicit racial classification—a context in which an Arlington Heights
analysis would be unnecessary in any event. See Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 272-74 (1979) (distinguishing “racial classification[s],” which are
“presumptively invalid,” from “neutral law[s]” subject to analysis under
Arlington Heights).
Nor would the rational-basis standard immunize discriminatory measures
from all judicial scrutiny. As the Supreme Court recently reiterated in an
immigration case, “a common thread” in its decisions invalidating laws “under
rational basis scrutiny ... has been that the laws at issue lack any purpose other
than a bare desire to harm a politically unpopular group.” Hawaii, 138 S. Ct. at
2420 (ellipses and quotation marks omitted). Accordingly, an immigration law
that drew a distinction for reasons “inexplicable by anything but animus,” id.
(quoting Romer v. Evans, 517 U.S. 620, 632 (1996)), would likely be invalid even
under the rational-basis standard. Cf. Wong v. United States, 373 F.3d 952, 974
n.29 (9th Cir. 2004) (suggesting that a noncitizen allegedly denied status
adjustment “solely on the basis of her race, ethnicity, or religion, and for no
immigration-related reason or other governmental purpose … could prevail even
under the ‘wholly irrational’ standard applied in Mathews [v. Diaz, supra]”). And
28
if that is so, then concerns over licensing racist legislation provide no sound basis
for applying more searching scrutiny to a law, such as Section 1326, that does
not draw race- or ethnicity-based lines on its face.
2. The district court’s second reason for declining rational-basis review—
that precedent required that result, 1-ER-4-5—is equally flawed. The court
believed that, even as it reversed this Court on the merits, the Supreme Court in
Dep’t of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891
(2020) (Regents), nevertheless endorsed a prior panel’s decision to apply Arlington
Heights in the immigration context. See 1-ER-4 n.4. But the Supreme Court in
Regents only assumed, without deciding, that Arlington Heights applied. See 140
S. Ct. at 1915. And in any event, the choice in Regents was not, as here, between
rational-basis review and scrutiny of legislative motivation under Arlington
Heights. Rather, the government had argued in Regents that the plaintiffs’ claim
raised the type of “selective enforcement” challenge that is not cognizable in
immigration cases. See id. As a result, the choice before the Supreme Court was
between Arlington Heights and no judicial review at all—a choice the Regents
plurality avoided by determining that the claim failed even under the standard
(Arlington Heights) more favorable to the plaintiffs. Id.
The district court correctly observed (1-ER-4) that, in partial reliance on
Regents, this Court later applied the Arlington Heights standard in an equal-
29
protection challenge to an Executive Branch action terminating four countries
from a congressionally created humanitarian program administered by the
Department of Homeland Security. Ramos v. Wolf, 975 F.3d 872, 895-96 (9th
Cir. 2020). Ramos, however, differs in key respects from this case. The Court
there considered an Executive Branch policy that applied to the nationals of
specific countries, rather than a facially neutral statute. In so doing, the Court
emphasized the “‘distinction’” drawn in immigration cases between noncitizens
who have “‘effected an entry into the United States’” and those who have not,
id. at 896 (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)), and declined to
apply the standards for evaluating executive action regarding the exclusion of
foreign nationals to the “administration of a humanitarian relief program
established by Congress for foreign nationals who have lawfully resided in the United
States for some time,” id. (emphasis added).
Unlike Ramos, this case does not involve challenges brought by a nonciti-
zen who “lawfully resided” in the United States for any time, let alone for a
lengthy period and under the auspices of a congressionally sanctioned program.
See Ramos, 975 F.3d at 896. Section 1326 instead applies to noncitizens (such as
Carrillo) who may never have been lawfully present in the country, were previ-
ously excluded or ordered removed, and are alleged to have returned without
authorization. 4-ER-606-07; see also Dep’t of Homeland Security v. Thuraissigiam,
30
140 S. Ct. 1959, 1981-83 (2020) (holding that a noncitizen who had entered the
United States unlawfully acquired no procedural rights not conferred by
Congress in its exercise of the “‘sovereign prerogative,’” and the political
branches’ “plenary authority,” to decide who will be admitted or excluded).
Furthermore, as a law that regulates noncitizens who cross or attempt to cross
the country’s borders, Section 1326 has “foreign policy and national security
implications,” 975 F.3d at 896, greater than those at play in Ramos. See, e.g.,
Hernandez v. Mesa, 140 S. Ct. 735, 746 (2020) (noting the national security con-
cerns raised by crossings at the U.S.-Mexico border); Arizona v. United States, 567
U.S. 387, 394-95 (2012) (federal government’s authority over “immigration and
the status of aliens” rests in part on “its inherent power as sovereign to control
and conduct relations with foreign nations”).
Finally, to the extent the district court believed that deference is owed
principally to executive (rather than congressional) action in the immigration
context, the court erred. 1-ER-5 n.5. Immigration laws implicate foreign-policy
and national-security concerns committed to both political branches of
government, not one or the other. See Arizona, 567 U.S. at 396-97; see also Ziglar
v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (“National-security policy is the
prerogative of the Congress and President.”). Moreover, the Supreme Court has
stated that Congress’s role in the immigration field stems from “its plenary
31
authority with respect to foreign relations and international commerce,” Plyler
v. Doe, 457 U.S. 202, 225 (1982), as well as its power to “establish an uniform
Rule of Naturalization,” U.S. Const. art. I., § 8, cl. 4, and that Congress’s
immigration policies are unsuited for “prob[ing] and test[ing]” by the courts. See
Fiallo, 430 U.S. at 799. Nothing in Ramos (or Regents) justifies retreating from
those principles and, for the first time, subjecting an Act of Congress in the
immigration field to invasive review under Arlington Heights.
II. SECTION 1326 DOES NOT VIOLATE EQUAL PROTECTION

UNDER THE ARLINGTON HEIGHTS STANDARD
Even if the Arlington Heights standard governs, Section 1326 is
constitutional. The district court’s contrary ruling rests on critical errors of law
and fact. And because, when stripped of those errors, the historical record
supports only the conclusion that the statute is constitutional, the court’s
judgment should be reversed outright.
A. Legal Framework
The Supreme Court confirmed decades ago that claims based on disparate
impact alone are not cognizable under the Equal Protection Clause, and instead
that “[p]roof of racially discriminatory intent or purpose is required to show a
violation of” that Clause. Arlington Heights, 429 U.S. at 265; see Washington v.
Davis, 426 U.S. 229, 239-42 (1976). When the law alleged to discriminate
against individuals of a particular race or national origin is neutral on its face,
32
courts evaluate the existence of such intent using the framework from Arlington
Heights, 429 U.S. at 265-68. Under that framework, “[t]he impact of the official
action—whether it bears more heavily on one race than another—may provide
an important starting point.” Id. at 266 (quotation marks and citation omitted).
But outside of extreme circumstances not alleged here, disparate “impact alone
is not determinative,” and courts must assess other evidence in deciding whether
a racially discriminatory purpose was “a motivating factor in the decision.” Id.
at 265-66. Pertinent evidence includes “[t]he historical background of the
decision,” “[t]he specific sequence of events leading up to” it, “departures” from
“[s]ubstantive” or “procedural” norms, and “[t]he legislative and administrative
history ... , especially … contemporary statements by members of the
decisionmaking body.” Id. at 267-68. If the challenger proves that the provision
was motivated in part by the prohibited intent, the burden 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.
Several principles inform how courts conduct the “sensitive inquiry” into
official motivation required under Arlington Heights. See 429 U.S. at 266. First,
discriminatory motive has a particular meaning in the equal-protection context.
A challenger must show “that the decisionmaker, in this case [the] legislature,
selected or reaffirmed a particular course of action at least in part ‘because of,’
33
not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney,
442 U.S. at 279. That standard requires more than proof that the legislature had
“awareness of [the] consequences” for the affected group, that those
consequences were “foreseeable,” id. at 278-79, or that it acted “with indiffer-
ence to” the effect on that group, Luft v. Evers, 963 F.3d 665, 670 (7th Cir. 2020).
Second, while statements by a bill’s proponents may be relevant to the
inquiry into intent under Arlington Heights, it remains the case that the motives
of individual legislators cannot necessarily be equated with the intent of the
whole legislature. See, e.g., United States v. O’Brien, 391 U.S. 367, 383-84 (1968);
see also Hunter v. Underwood, 471 U.S. 222, 228 (1985) (noting that “the
difficulties in determining the actual motivations of the various legislators that
produced a given decision increase” when a larger legislative body is at issue).
Third, a legislature alleged to have acted with discriminatory intent is not
automatically saddled with the sins of its predecessors. See City of Mobile v. Bol-
den, 446 U.S. 55, 74 (1980) (plurality) (“[P]ast discrimination cannot, in the
manner of original sin, condemn governmental action that is not itself unlaw-
ful.”). In conducting the intent inquiry, courts generally presume that the legis-
lature acted in good faith and require a movant to come forward with evidence
that the challenged law—not just a prior one—was motivated in part by a
discriminatory purpose. See Abbott v. Perez, 138 S. Ct. 2305, 2324-25 (2018); see
34
also City of Mobile, 446 U.S. at 74 (discriminatory intent must be “proved in a
given case”). Such evidence may include proof that earlier legislatures had
discriminatory intent when enacting particular laws, Abbott, 138 S. Ct. at 2327,
but the probative value of such evidence decreases when it is remote in time, see
Regents, 140 S. Ct. at 1916; McCleskey v. Kemp, 481 U.S. 279, 298 n.20 (1987), or
attributable to a legislature with “a substantially different composition,” Brnovich
v. DNC, 141 S. Ct. 2321, 2349 n.22 (2021) (quotation marks omitted).
B. Section 1326’s Impact on Latinx Defendants Does Not Give

Rise to an Inference of Discriminatory Intent.
The district court misapplied the foregoing principles in holding Section
1326 unconstitutional. The court erred at the outset in inferring discriminatory
intent from Section 1326’s impact on Mexican and Latinx defendants. 1-ER-9-
13, 17, 19, 26-28. The court appeared to view the disparate-impact inquiry under
Arlington Heights as a matter of numbers alone, concluding that Carrillo had
made the requisite showing because statistics indicate that upwards of 85% of
“persons apprehended at the border” between 2000 and 2010 “were of Mexican
descent” and, under Department of Justice directives, “many, if not all,
apprehensions are ultimately prosecuted.” 1-ER-10.5 Believing those
5
The district court cited both these 21st-century numbers and statistics
from the 1930s. 1-ER-10-11. The contemporary numbers could be relevant if
the court had focused on the current version of Section 1326, but they shed little
light on the knowledge or intent of the 1952 Congress. See Johnson v. Governor of
35
“numbers” to be “in line with other successful Arlington Heights challenges,” 1-
ER-11, the court deemed Section 1326’s impact on Latinx individuals to support
an inference of discriminatory intent despite obvious alternative explanations for
the disparity that are relevant in the immigration context: i.e., (1) the almost
2,000-mile border the United States shares with Mexico, see Hernandez, 140 S.
Ct. at 746; and (2) the undisputed fact (1-ER-11) that Latinx individuals make
up a disproportionately high percentage of those illegally in the United States
and thus an outsized share of those eligible for prosecution under Section 1326.
Recent decisions of the Supreme Court and this Court undercut the district
court’s reasoning. In Regents, for example, beneficiaries of the deferred-action
immigration program argued that the disparate impact of the program’s
rescission “on Latinos from Mexico, who represent 78% of” the program’s
beneficiaries, supported an inference that the recission was driven by an
invidious discriminatory purpose. 140 S. Ct. at 1915. Eight Justices rejected
that argument. Id. at 1915-16 (plurality); id. at 1919 n.1 (Thomas, J., concurring
in part and dissenting in part); id. at 1936 (Kavanaugh, J., concurring in part and
dissenting in part). The Court’s lead opinion explained that the disparity did
the State of Florida, 405 F.3d 1214, 1222 n.17 (11th Cir. 2005) (en banc) (rejecting
reliance on “present” day evidence of disparate impact where the plaintiffs
challenged a 1968 law as discriminatory).
36
not, “either singly or in concert” with other factors, make out a “plausible equal
protection claim.” Id. at 1915. The plurality reasoned that, “because Latinos
make up a large share of the unauthorized alien population, one would expect
them to make up an outsized share of recipients of any cross-cutting immigration
program.” Id. And “[w]ere this fact sufficient to state a claim, virtually any
generally applicable immigration policy could be challenged on equal protection
grounds.” Id. at 1916.
This Court later reached a similar conclusion in Ramos, 975 F.3d at 898.
The movants there challenged on equal-protection grounds the Executive
Branch’s decision to terminate four countries—Sudan, Nicaragua, Haiti, and El
Salvador—from the temporary-protected-status (TPS) program, which affords
relief to noncitizens who cannot safely return to their home nation for certain
reasons. Id. at 879, 883. In rejecting that challenge, this Court afforded no
weight to the asserted disproportionate impact that the program’s termination
had on individuals from countries with “predominantly ‘non-white’
populations.” Id. at 898. The Court explained that, while the four countries at
issue in the case were “‘non-European’ with predominantly ‘non-white’
populations, the same [was] true for” most other countries involved in the TPS
program since 1990. Id. (“[V]irtually every country that has been designated
for TPS … has been ‘non-European’ … and most have majority ‘non-white’
37
populations.”). Were a disparity of that nature to suffice, this Court continued,
“almost any TPS termination in the history of the program would bear ‘more
heavily’ on ‘non-white, non-European’ populations and thereby give rise to a
potential equal protection claim”—which “cannot be the case.” Id.
Regents and Ramos reflect the sensible proposition that outsized effects on
certain populations are an expected byproduct of broad-based immigration
regulations and do not necessarily give rise to the same inference of
discriminatory intent that might exist in other settings. And that principle
applies squarely to Carrillo’s challenge to Section 1326. Because a dispro-
portionate share of the individuals excluded or removed from the U.S. are
Mexican or Latinx,6 it stands to reason that a high share of those prosecuted for
illegally returning after removal will likewise be Latinx. That is all the more true
when taking into account the proximity of the United States to Mexico and
Central America, and the possibility of returning to the United States from those
locations over land. See United States v. Arenas-Ortiz, 339 F.3d 1066, 1070 (9th
Cir. 2003) (explaining, in the context of a selective-prosecution claim, the
“common sense” notion “that it would be substantially more difficult for an
6
See, e.g., DHS, 2019 Yearbook of Immigration Statistics, Table 41 (in
FY2019, 61 percent of all removed aliens—215,205 of 359,885—were Mexican),
at https://www.dhs.gov/immigration-statistics/yearbook/2019/table41.
38
alien removed to China to return to the United States than for an alien removed
to Mexico to do so”); E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 973
(9th Cir. 2020), as amended (Apr. 8, 2021) (recognizing that noncitizens
“traveling overland from El Salvador, Honduras, or other countries south of
Guatemala” can enter the United States through Mexico).
The district court, for its part, did not acknowledge the disparate-impact
analysis in Ramos. And the court thought Regents distinguishable on the ground
that the plurality there “found that disparate impact alone had not been
demonstrated,” whereas Carrillo sought to meet his burden “through a showing
of disparate impact coupled with intent.” 1-ER-12. That reading of Regents,
however, cannot be reconciled with the plurality’s explanation that the 78%
statistic cited by the plaintiffs did not, “either singly or in concert” with their two
other categories of evidence, “raise a plausible inference that the rescission was
motivated by animus.” Regents, 140 S. Ct. at 1915-16 (emphasis added).
The district court also relied on decisions of this Court that “found
disparate impact in situations where ‘geography’ might arguably explain the dis-
parity.” 1-ER-12. But all of those cases addressed state and local measures, not
a federal immigration law. See Arce v. Douglas, 793 F.3d 968, 978 (9th Cir. 2015);
Comm. Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 704-
39
06 (9th Cir. 2009). 7 And none involved “geography” in the sense relevant
here—viz., that the federal law’s application is affected by Mexico’s proximity
to the United States and the factors that drive migration from Mexico and
Central America to this country. Those factors, not discriminatory intent,
readily explain the high percentage of Latinx defendants in Section 1326
prosecutions.
C. The District Court’s Finding of Discriminatory Intent

Rests on Errors of Law and Historical Fact.
The district court inferred from five factors, taken together, that “[t]he
1952 enactment of Section 1326 was also motivated by discriminatory intent.”
1-ER-18. As explained below, however, each aspect of the court’s analysis is
marred by fundamental errors of law or historical fact. When those errors are
corrected, the court’s finding cannot stand.
1. The district court erred in treating congressional

silence as evidence of discriminatory intent
The district court determined that the absence of legislative debate on Sec-
tion 1326, when “compared to robust Congressional debate” about the INA’s
national-origins quotas, supported an inference “that discriminatory intent was
7
A third cited decision, Democratic National Committee v. Hobbs, 948 F.3d
989, 1004 (9th Cir. 2020) (en banc), was reversed by the Supreme Court in
Brnovich v. DNC, 141 S. Ct. 2321 (2021).
40
a motivating factor in” Section 1326’s reenactment. 1-ER-19. According to the
court, that inference was warranted either because Congress “ignored the
express nativist intent behind the [1929] Act” or, if it was aware of that intent,
bypassed the “opportunity to either adopt its racial animus or refute its improper
motivation and clarify a [permissible] purpose for the statute.” 1-ER-20.
The court’s reasoning suffers from three fatal flaws. First, it overlooks the
INA’s historical context. That Act was controversial in part because it main-
tained the system of national-origin quotas in effect since 1924, which did not
apply to Mexico and other Western Hemisphere countries. See 2-ER-90; 3-ER-
278-79. Section 1326, by contrast, was an uncontroversial and widely supported
provision. Indeed, the competing Senate bill proposed by the INA’s
opponents—who criticized the national-origin quotas as xenophobic, see, e.g., 98
Cong. Rec. 5169, 5768 (1952) (Sen. Lehman)—contained an illegal-reentry law
identical to what became Section 1326. See S. 2842, § 276, 82d Cong., 2d Sess.
(Mar. 12, 1952). It is therefore unsurprising that congressional debate centered
on the contested quotas yet omitted discussion of a provision accepted by the
INA’s proponents and opponents alike. Cf. United States v. Ortiz-Martinez, 557
F.2d 214, 216 (9th Cir. 1977) (“An exhaustive reading of the congressional
debate indicates that Congress was deeply concerned with many facets of the
[INA], but §§ 1325 and 1326 were not among the debated sections.”).
41
Second, the district court’s reasoning contravenes the Supreme Court’s
warning against “[d]rawing meaning from [Congressional] silence.” Kimbrough
v. United States, 552 U.S. 85, 103 (2007). Just as courts do not lightly treat
Congress’s “silence [as] tantamount to acquiescence” in judicial or agency
decisions, Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969), they should not give
weight to a legislature’s failure to expressly grapple with the history underlying
earlier laws—especially when the legislators are unlikely to be aware of that
decades-old history. See Johnson v. Governor of State of Florida, 405 F.3d 1214,
1225 n.21 (11th Cir. 2005) (en banc).
Third, the court’s reasoning repeats the error the Supreme Court corrected
in Abbott, 138 S. Ct. 2305. Abbott involved a 2013 districting plan enacted by the
Texas legislature after its original 2011 plan was challenged in two courts. Id. at
2316-17. Although the legislature adopted the 2013 plan from a version
preliminarily approved by a three-judge court, that same court later invalidated
the 2013 plan on the ground that it was tainted by the legislature’s discriminatory
intent in passing the predecessor 2011 plan. Id. at 2318. The Supreme Court
reversed. In so doing, the Court reaffirmed that discriminatory purpose must be
shown as to the actual law being challenged, not just a predecessor; the legis-
lature that enacted the successor statute is generally afforded a presumption of
42
good faith; a finding of past discrimination does not “flip[] the evidentiary bur-
den” to the government to prove that the successor statute is free from discrimi-
natory intent, id. at 2324-25; and a successor legislature does not have a “duty
to expiate its predecessor’s bad intent,” id. at 2325; see id. at 2326 n.18.
By holding against the 1952 Congress its failure to engage with the history
of the 1929 Act, the district court ran afoul of Abbott. And as in Abbott, that
aspect of the court’s rationale “cannot be dismissed as stray comments,” 138 S.
Ct. at 2325, because it pervaded the court’s analysis. See 1-ER-19-20; 1-ER-16
(1952 law “did not cleanse Section 1326 of its racist origins”); 1-ER-27, 33-34,
41, 43 (similar).
The district court’s efforts to distinguish Abbott are unavailing. The court
suggested that the result in Abbott turned “on the legislature’s active response
and engagement with the prior challenged statute,” 1-ER-29, and read the
decision “to require that the reenacting legislature make some substantive
change before known racial animus is cleansed,” 1-ER-34. But the Court in
Abbott could look to the 2013 legislature’s “response” only because allegations
of discriminatory intent had been aired in legal challenges to the original 2011
plan brought in multiple federal courts. See 138 S. Ct. at 2315-17. It is unrealistic
to expect an “active response,” by contrast, in cases where the legislature has no
notice of allegations that a law it is revisiting may have been motivated by
43
discriminatory intent. As the en banc Eleventh Circuit has explained,
demanding legislative engagement with a law’s history in such cases “establishes
an insurmountable burden” because it is “unlikely that the present day
legislators would be aware of the past discrimination” that supposedly taints the
law. Johnson, 405 F.3d at 1225 n.21. That concern is directly implicated here,
where the district court identified no evidence that the 1952 Congress—which
had experienced a 96% turnover since 1929, 4-ER-554 n.8—was even aware of
the history underlying the illegal-reentry provision that the court found to taint
the 1929 Act.
Moreover, assuming arguendo that an earlier law must be “substantially
altered” (1-ER-18) before a presumption of good faith applies under Abbott,
Section 1326 satisfies that criterion because the 1952 Congress changed the law
governing illegal reentry in at least two material ways. 8 First, Congress added
8
We say “at least two” because Section 1326’s text reflects additional
relevant changes from the 1929 Act. Congress (1) expanded the prohibition to
reach those “excluded and deported,” not just those “arrested and deported,”
INA § 276, 66 Stat. 229; and (2) omitted a phrase in the 1929 Act (“in pursuance
of law”) that the Supreme Court later identified as a potential textual basis for
allowing defendants to challenge the validity of their deportation orders in the
illegal-reentry prosecution. See United States v. Mendoza-Lopez, 481 U.S. 828, 836
(1987); see also id. at 831 n.2 (noting the language in Section 1326, added in 1952,
that “excepts those aliens who have either received the express consent of the
Attorney General to reapply for admission or who otherwise establish that they
were not required to obtain such consent”).
44
the “found in” clause now in Section 1326(a), creating a “substantive offense[]”
that is “distinct” from the two grounds for liability (entry and attempted entry)
in the 1929 Act. See United States v. Corrales-Beltran, 192 F.3d 1311, 1319 (9th
Cir. 1999). As the district court itself recognized elsewhere in its opinion, the
addition of this clause made a “substantive change” to existing law by
“expand[ing] the government’s authority to enforce the” reentry prohibition. 1-
ER-24. Second, the 1952 Congress enacted Section 1326 to serve as a single
illegal-reentry statute that applied the same penalties to all defendants, repealing
other provisions that had prescribed different penalties for defendants deported
for subversive or immoral activities. See INA § 403, 66 Stat. 279-80; S. Rep. No.
81-1515, at 646-47, 655-56 (1950); United States v. Mendoza-Lopez, 481 U.S. 828,
835 & n.10 (1987). Those alterations qualify as “substantive change[s]” under
any reasonable understanding of that term. 1-ER-34.
The district court, however, appeared to believe that a law is
“substantive[ly]” altered in the relevant sense only if it has been “expressly
revis[ed]” to be “more race-neutral.” 1-ER-30-31. But the court did not explain
how Congress could have made a law already silent as to the offender’s race
“more race-neutral.” 1-ER-31. Nor do the felon-disenfranchisement cases cited
by the court suggest that Congress was required to do so in order for the
presumption of good faith to apply. The change deemed “substantive in scope”
45
in Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010), for example, was a
constitutional amendment that merely required the state legislature to pass a
felon-disenfranchisement law, rather than leaving the matter “to the legislature’s
discretion.” Id. at 167. And it is unlikely that the 1968 Florida legislature acted
“in an attempt to make [its law] less racially targeted” (1-ER-31) when, “at the
[relevant] time … , no one had ever alleged that the [earlier] provision was
motivated by racial animus,” Johnson, 405 F.3d at 1224.
Accordingly, even if Abbott required “substantive” changes before
applying a presumption of good faith to a successor statute, 1-ER-18 & n.21,
Section 1326 was entitled to the presumption here. By failing to afford that
presumption to the 1952 Congress (or the multiple Congresses that have
amended the statute since), the district court committed reversible legal error.
2. President Truman’s veto does not support an

inference of discriminatory intent
The district court erred in inferring discriminatory intent from Congress’s
decision to enact the INA over President Truman’s veto. The court noted
Truman’s view that the INA perpetuated a “discriminatory policy” of the past
and his remarks urging Congress to “reexamin[e]” the approach taken in that
act. 3-ER-423, 428. And the court found that “Congress’ failure to heed
President Truman’s” message, “while simultaneously making the INA, and
46
particularly Section 1326, more punitive in nature, is evidence of at least
indifference to the nativist motivations of the statute’s predecessor.” 1-ER-22.
Truman’s veto statement, however, “does little to advance [Carrillo’s]
argument.” United States v. Machic-Xiap, No. 3:19-cr-407, 2021 WL 3362738, at
*13 (D. Or. Aug. 3, 2021). For one thing, the statement says “nothing about
what President Truman thought about § 1326 specifically.” Id.; see United States
v. Samuels-Baldayaquez, No. 4:20-cr-83, 2021 WL 5166488, at *3 n.6 (N.D. Ohio
Nov. 5, 2021). The district court itself recognized that “Truman did not
explicitly address racism as to Mexican or Latinx individuals” in the veto
statement, which “largely objected to the national origin quota system, not
Section 1326.” 1-ER-21-22. Indeed, Truman opened his veto message by noting
that the bill “contains certain provisions that meet with [his] approval.” 3-ER-
420. And as explained above (p. 41, supra), opponents of the national-quota
system at the time of the 1952 Act (such as Senator Lehman) still supported the
criminal punishment of unlawful reentry in the fashion required by Section
1326. President Truman’s veto message, like the floor statements of the INA’s
congressional opponents, therefore “do[es] not prove that racial animus
motivated Congress to enact § 1326.” Machic-Xiap, 2021 WL 3362738, at *13.
3. The district court misapprehended the Ford letter

and anti-harboring legislation
The district court made basic mistakes of historical fact in inferring
47
discriminatory intent from a 1951 letter by Deputy Attorney General Peyton
Ford commenting on a draft of the INA, and from Congress’s enactment of
legislation known colloquially as the “Wetback Bill.” 1-ER-22-26. Starting with
the Ford letter, the court believed the letter indicative of discriminatory intent
because Congress supposedly followed its recommendation to add the “found
in” clause to Section 1326; that clause made the statute more punitive; and the
recommendation came in a letter that, in quoting a report by President Truman’s
Commission on Migratory Labor, referred to Mexicans as “wetback[s],” 3-ER-
439. See 1-ER-23-24, 34-35. The court’s reasoning is unsound.
As an initial matter, the court erred in inferring discriminatory intent from
the presence of the term “wetback” in congressional debates and other executive
and legislative materials. 1-ER-19, 22, 23, 25, 28, 31. That term, if used today,
would unquestionably be understood as a “racial epithet” (1-ER-25) indicative
of animus. But it must be recognized that linguistic norms change over time and
that, in the early 1950s, the term was often used to refer to an undocumented
worker from Mexico without necessarily indicating discriminatory intent. See
2-ER-228 (testimony by Carrillo’s expert that prominent Mexican-American
advocate Cesar Chavez used the term to distinguish between legal and illegal
Mexican immigrants). Opinions of this Court and others used the term in
48
precisely that manner. 9 So did President Truman,10 lauded elsewhere by the
district court for his sensitivity to discrimination when vetoing the INA. 1-ER-
22. Accordingly, while the court’s reaction to the term is understandable, the
court erred in treating the appearance of that particular term in congressional
debates of that era as evidence of discriminatory purpose.
Moreover, the district court misunderstood the nature and significance of
the recommendations made in the Ford letter. Even accepting the premise that
the “found in” clause made the illegal-reentry statute more “punitive” (and that
such an effect is itself suggestive of animus), Ford did not propose the relevant
language. He wrote in “response” to the Senate Committee’s request for the
Justice Department’s views on a draft bill that already contained the “found in”
9
See Amaya v. United States, 247 F.2d 947, 947-48 (9th Cir. 1957); United
States v. Sugden, 226 F.2d 281, 282 (9th Cir. 1955); see also Johnson v. Kirkland,
290 F.2d 440, 441 (5th Cir. 1961) (describing a statute’s purpose as “protect[ing]
migrant Mexican workers—referred to traditionally as ‘wetbacks’ because of
their illegal entry across the Rio Grande—from exploitation by American
employers whose normal economic power was enhanced by the illegal status of
the workers”).
10
Harry S. Truman, “Special Message to the Congress on the
Employment of Agricultural Workers from Mexico” (July 13, 1951) (“The really
crucial point, which this Act scarcely faces, is the steady stream of illegal
immigrants from Mexico, the so-called ‘wetbacks,’ who cross the Rio Grande or
the western stretches of our long border, in search of employment.”), at
https://www.trumanlibrary.gov/library/public-papers/154/special-message-
congress-employment-agricultural-workers-mexico.
49
clause. 3-ER-432; see S. 716, § 276, 82nd Cong., 1st Sess. (Jan. 29, 1951).11 The
court therefore erred in stating that “the only change” between the 1929 Act and
Section 1326 “was motivated by the Ford Letter,” and imputing to Congress
discriminatory intent inferred from the appearance of the term “wetback” in a
part of the letter that was not even addressing Section 1326. 1-ER-34-35; see 1-
ER-27-28 (“The 1952 Congress incorporated the advice of supporters of the bill
who used racial epithets in official documents[.]”).
The district court’s understanding of legislation colloquially known as the
“Wetback Bill” was also flawed. 1-ER-24-26. As Carrillo’s own expert testified,
the bill was an “anti-harboring” measure that targeted those involved in
transporting and otherwise facilitating noncitizens’ entry into the United States.
2-ER-158; see Pub. L. No. 82-283, 66 Stat. 26 (1952) (“An Act To assist in
preventing aliens from entering or remaining in the United States illegally”),
codified as amended at 8 U.S.C. § 1324(a). It had been proposed in the same
draft bill sent to Deputy Attorney General Ford for comment (§ 274 of S. 716);
was deemed a necessary response to the decision holding an earlier anti-
harboring law unenforceable in United States v. Evans, 333 U.S. 483 (1948), see 3-
11
Congress did adopt Ford’s suggestion to clarify other language in the
draft Section 1326 that he thought “somewhat obscure.” 3-ER-437. But that
language addressed not whether to add the found-in clause, but the wording of
the affirmative defense now in Section 1326(a)(2)(B).
50
ER-437; and was passed on an emergency basis, at the behest of the Truman
Administration, to secure extension of an existing migratory-labor agreement
with Mexico, see 98 Cong. Rec. 791-92, 795 (1952). The law did have a
controversial proviso that exempted employers from liability for the bare act of
hiring a noncitizen. Id. at 794; E.P. Hutchinson, Legislative History of American
Immigration Policy, 1798-1965, pp. 302-03 (1981). But whatever else it did, the
law did not punish only “the laborers themselves” or “criminaliz[e] Mexican
immigrant laborers” to the exclusion of all others. 1-ER-25-26. The court
therefore erred in viewing the substance of the legislation as showing “the
racially discriminatory motives and intent of the same Congress [that] enacted
Section 1326.” 1-ER-26.
4. The court gave excessive weight to Congress’s

supposed awareness of disparate impact.
As a final consideration, the district court concluded that Congress’s
decision to expand the illegal-reentry bar, “despite its knowledge of the disparate
impact of this provision on Mexican and Latinx people, is some evidence that
racial animus was a motivating factor” in Section 1326’s passage. 1-ER-27.
That conclusion lacks merit, for three reasons.
First, as explained in Part II.B above, the impact of an immigration-
related measure such as Section 1326 on Mexican and Latinx individuals does
not give rise to the same inference of discriminatory intent as in other settings.
51
See United States v. Wence, No. 3:20-cr-27, 2021 WL 2463567, at *10 (D. V.I. June
16, 2021). Second, the district court’s statement that Congress knew that the
1929 Act had disproportionately affected Latinx people is unsupported. The
court relied on data from the 1930s supplied by Carrillo’s expert, but without
any evidence that those statistics were available to or shared with the 1952
Congress. 1-ER-26; 4-ER-589-90. The court’s only other source—a passage in
the Senate report describing the difficulties of obtaining convictions in the
“Mexican border area,” 1-ER-27—addresses laws “relating to illegal entry and
smuggling of aliens,” and was not specific to the illegal reentries covered by
Section 1326. 3-ER-413. It also makes no express reference to the race or
national origin of those who were prosecuted under the 1929 Act. Compare 3-
ER-436 (passage in the Ford letter noting that “[m]any European aliens are
specifying Mexico or Canada as the country to which they wish to be deported”
and that, if their requests were granted, “reentry from such territory in an illegal
manner is easily possible”).
Third, even assuming the 1952 Congress was aware that the existing
reentry prohibition produced a disparate impact, awareness is not enough. The
Supreme Court’s decision in Feeney instead requires proof that Congress acted
in part because of Section 1326’s adverse effect on Mexican and Latinx
defendants, not simply that the effect was known or foreseeable. Feeney, 442
52
U.S. at 278-79; see Wayte, 470 U.S. at 610. This Court soundly applied that
teaching when criminal defendants raised equal-protection challenges to the
former crack cocaine sentencing regime. The Court explained in those cases
that defendants could not rest on evidence that “the crack/powder cocaine
sentencing disparity ha[d] a disproportionate impact on African-Americans”
and that this impact was known to Congress. United States v. Dumas, 64 F.3d
1427, 1429-30 (9th Cir. 1995); see United Stated v. Coleman, 24 F.3d 37, 39 (9th
Cir. 1994). And the Court declined to infer the required “discriminatory
purpose” from other aspects of the legislative record, including “the racism
which [had] permeated” the passage of a predecessor drug law enacted decades
earlier. Dumas, 64 F.3d at 1430. Carrillo’s challenge to Section 1326 should
meet the same fate.
***
The foregoing errors of law and fact permeate the district court’s finding
that Congress was motivated in part by discriminatory intent—a finding that no
other court to consider challenges to Section 1326 has accepted. See 1-ER-32 &
nn.33-34 (recognizing that “no court that has addressed this issue has found that
Section 1326 is unconstitutional under Arlington Heights,” and listing cases).
And because the record, with those errors corrected, “permits only one
53
resolution of the” intent question, Pullman-Standard v. Swint, 456 U.S. 273, 292
(1982), this Court should reverse the intent finding outright.
D. The Government Showed That Congress Would Have

Enacted Section 1326 Absent Discriminatory Intent
Having erroneously found discriminatory intent, the district court reached
the final step of the Arlington Heights inquiry, at which the government bears the
burden of showing that Section 1326 would have been enacted absent the
discriminatory purpose the court found. See Hunter, 471 U.S. at 225; Arlington
Heights, 429 U.S. at 270 n.21. The government made the requisite showing, and
the district court compounded its other errors in concluding otherwise. 1-ER-
35-43.
1. To start, the district court erred in rejecting the obviously valid federal
immigration objectives served by an illegal-reentry law as an indication that
Section 1326 would have been enacted absent discriminatory intent. See Feeney,
442 U.S. at 275 (recognizing that, “notwithstanding [disparate] impact[, ]the
legitimate noninvidious purposes of a law cannot be missed”). “[C]ontrol[ling]
unlawful immigration … is a normal regulatory function of the sovereign.” Rizo-
Rizo, 2021 WL 5024364, at *4. And imposing a sanction on those who
repeatedly violate U.S. immigration laws (and territorial boundaries) is a basic
feature of a controlled border. That is why this Court described Section 1326 as
“a necessary piece of the immigration-regulation framework,” without which
54
“Congress’s immigration-regulation authority would be fatally undermined—all
bark and no bite.” Hernandez-Guerrero, 147 F.3d at 1078 (emphasis added). It is
also why, as the government pointed out, many countries criminalize unlawful
entry and reentry in some form. See 2-ER-58-59 & n.7; see also Hayden, 594 F.3d
at 167-68 (concluding that the widespread adoption of felon-disenfranchisement
laws across states and over time confirmed “the obvious, noninvidious purpose”
of such laws).
The district court never addressed the prevalence of illegal-entry laws.
And it dismissed Hernandez-Guerrero as having answered the distinct question of
whether Congress had the constitutional authority to enact Section 1326 in the
first place. 1-ER-39-40. But Hernandez-Guerrero did not merely describe a
deterrence rationale that could have justified Congress’s enactment of an illegal-
reentry prohibition; its rationale tracks the reasons actually given when Congress
passed Section 1326’s predecessor. The Senate Report preceding the 1929 Act
quotes Department of Labor submissions explaining that existing law provided
no penalty, “other than repeated deportation,” for most of the reentering
noncitizens, and calling it “academic that no prohibitive law can successfully be
enforced without a deterrent penalty.” S. Rep. No. 70-1456, at 1-2.12 If the
12
The Labor Department also stated that “[m]any of the aliens who are
required to be deported enter as seamen, and it goes without saying that depor-
tation as passengers aboard regular passenger steamers is no penalty in this class
55
district court were correct that Congress’s discriminatory motivations in 1929
carried over to 1952, then there is no good reason why these earlier non-
discriminatory (and legitimate) reasons should not also be considered in
evaluating what Congress would have done in 1952.
The need for a deterrent penalty would have been especially obvious (and
important) to Congress given the post-1929 historical developments that the
district court noted, including migratory-labor agreements with Mexico. 1-ER-
37, 39. As a report in the record explained, Mexico was “increasingly concerned
about the continuing high level of illegal immigration, which it viewed as
something of a diplomatic embarrassment,” 3-ER-308, and was willing to
extend existing labor agreements only if the United States strengthened its laws
against harboring and transporting noncitizens. See pp. 50-51, supra; 98 Cong.
Rec. 795 (Sen. Ellender). It is implausible to conclude that Congress, faced with
that landscape, would have forgone an illegal-reentry law and accepted a return
to the situation described in the 1929 Senate Report—or that it would have
of cases.” S. Rep. No. 70-1456, at 2. It seems unlikely that concerns about sea-
men unlawfully reentering the country were focused on Mexican immigration.
Cf. United States v. Lazarescu, 104 F. Supp. 771, 773 (D. Md.) (prosecution of
Romanian seamen under the 1929 Act), aff’d, 199 F.2d 898 (4th Cir. 1952);
United States v. Vasilatos, 209 F.2d 195, 196 (3d Cir. 1954) (Greek seamen).
56
insisted on passing such a law solely because of a desire to discriminate against
Mexican and Latinx persons.
2. More fundamentally, the repeated amendments to Section 1326 since
1952 obviate any need to speculate about whether Congress would have enacted
the statute absent discriminatory motives. Congress has revisited Section 1326
five times—in 1988, 1990, 1994, and twice in 1996. 1-ER-7-9 nn.9-11. Many of
the amendments increased the statute’s “financial and carceral penalties,” 1-ER-
41, while others adjusted its scope (by “broaden[ing] the definition of
‘deportation,’” 1-ER-8-9 n.11) and established criteria for raising a common
defense to prosecution, see Pub. L. No. 104-132, § 441, 110 Stat. 1214, 1279
(1996) (codified as Section 1326(d)). Carrillo has not alleged, and the district
court did not find, that any of these amendments was motivated by
discriminatory intent. And the fact that Congress has repeatedly expanded
Section 1326’s scope or penalties without any evidence of discriminatory intent
indicates that the law would have passed in the first instance absent any
impermissible motive.
The Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, is
particularly illustrative of Congress’s efforts to increase Section 1326’s deterrent
value in legislation that lacks any hint of racial animus. That Act authorized
greater fines for Section 1326 violations, id. § 543, 104 Stat. 5059, a measure that
57
Carrillo’s expert acknowledged to serve a valid deterrent purpose. 2-ER-119.
Yet in the same Act, Congress more than doubled the then-existing cap on
immigration, granted Temporary Protected Status to citizens of El Salvador
fleeing that country’s civil war, and created a diversity visa program to increase
the number of visas provided to countries that were underrepresented in
admission to the United States. Pub. L. No. 101-649, §§ 131, 303, 104 Stat.
4997-99, 5036-37. That Section 1326 was amended as part of legislation that
marks “an about face away from the racist trope that accompanied” earlier
immigration laws, United States v. Gallegos-Aparicio, No. 19-cr-2637, 2020 WL
7318124, at *3 (S.D. Cal. Dec. 11, 2020), confirms that Congress viewed the
statute as an important deterrence measure separate and apart from any
discriminatory motive.
The district court’s two reasons for dismissing the relevance of these post-
1952 actions are unavailing. The first—that the amendments “do not reflect any
change of Congressional intent, policy, or reasoning,” 1-ER-42—reveals a basic
misunderstanding of the legislative process.13 The decision to alter a statute’s
maximum penalties and penalty structure necessarily means that Congress has
13
The court’s additional suggestion that penalty increases are not
“‘substantive’” (1-ER-41) is both incorrect and in significant tension with its
earlier conclusion that an amendment that makes a statute more “punitive in
nature” is a “substantive change,” 1-ER-24.
58
evaluated existing policy, decided it does not strike the right balance, and altered
that balance. See United States v. Suquilanda, No. 21-cr-263, 2021 WL 4895956,
at *5 (S.D.N.Y. Oct. 20, 2021) (post-1952 amendments have served “to enhance
penalties or otherwise rebalance the deterrent effect of the law”). The court’s
second reason was that “at no point has Congress confronted the racist, nativist
roots of Section 1326.” 1-ER-43. But the court recognized that no “binding
precedent” supported such a requirement and instead drew it from solo
concurrences in two recent Supreme Court decisions. 1-ER-42-43 (citing
Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2274 (2020) (Alito, J.,
concurring); Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) (Sotomayor, J.,
concurring in part)). And a requirement that Congress “grapple” (1-ER-42) with
prior laws makes little sense in a scenario like this one, where allegations that
such laws were driven by discriminatory intent have been aired only recently,
see p. 44, supra.
3. Finally, the district court erred in concluding that the record failed to
establish that considerations of economic protection, national security, and
foreign relations would have not ensured the passage of Section 1326 absent any
discriminatory intent. 1-ER-36-39. The government presented evidence on
those considerations through its questioning of Carrillo’s expert witnesses, e.g.,
2-ER-102-08, 111-14, 206-08, 210-14, and buttressed points covered in that
59
testimony with a report prepared for a Senate subcommittee on U.S.
immigration law and policy, 3-ER-265-411. In analyzing the government’s
evidence on these points, however, the district court took the opposite approach
to its treatment of Carrillo’s evidence of discriminatory intent: it considered each
permissible motive for passing Section 1326 in isolation, rather than evaluating
those motives in their “totality.” 1-ER-34. Moreover, the court discounted
evidence that these considerations motivated the passage of Section 1326 largely
because Carrillo’s expert, while conceding that they were motivating factors,
maintained that “‘racial animus is also at play.’” 1-ER-38-39 (emphasis added).
But a court reaches this stage of the Arlington Heights inquiry only if it has found
(or assumed) that a discriminatory purpose is at play to some degree. A
witness’s belief that dual motives existed for enacting Section 1326, one
discriminatory and one legitimate, therefore does not preclude a conclusion that
the legitimate motive was sufficiently powerful to ensure the statute’s passage.
60
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
CHRISTOPHER CHIOU KENNETH A. POLITE, JR.

Acting United States Attorney Assistant Attorney General
ELIZABETH O. WHITE LISA H. MILLER

Appellate Chief Acting Deputy Assistant Attorney General
PETER H. WALKINGSHAW
Assistant United States Attorney s/ Scott Meisler
District of Nevada SCOTT A.C. MEISLER
Criminal Division, Appellate Section
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-3803
[email protected]
November 19, 2021
61
STATUTORY ADDENDUM
An Act Making it a felony with penalty for certain aliens to enter the United
States of America under certain conditions in violation of law, Pub. L. No.
70-1018, 45 Stat. 1551 (March 4, 1929).
Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That (a) if any alien has been arrested and
deported in pursuance of law, he shall be excluded from admission to the United
States whether such deportation took place before or after the enactment of this
Act, and if he enters or attempts to enter the United States after the expiration
of sixty days after the enactment of this Act, he shall be guilty of a felony and
upon conviction thereof shall, unless a different penalty is otherwise expressly
provided by law, be punished by imprisonment for not more than two years or
by a fine of not more than $1,000, or by both such fine and imprisonment.
(b) For the purposes of this section any alien ordered deported (whether before
or after the enactment of this Act) who has left the United States shall be
considered to have been deported in pursuance of law, irrespective of the source
from which the expenses of his transportation were defrayed or of the place to
which he departed.
***
Sec. 2. Any 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, or obtains entry to the United States by a
willfully false or misleading representation or the willful concealment of a
material fact, shall be guilty of a misdemeanor and, upon conviction, shall be
punished by imprisonment for not more than one year or by a fine of not more
than $1,000, or by both such fine and imprisonment.
Immigration and Nationality Act, Pub. L. No. 82-414, § 276, 66 Stat. 229
(June 27, 1952).
Any alien who -
(1) has been arrested and deported or excluded and deported, and
thereafter
A1
(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.
8 U.S.C. § 1326 (as last amended in 1996)
(a) In general
Subject to subsection (b), any alien who—
(1) has been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, deportation, or
removal is outstanding, 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 denied admission and removed, unless
such alien shall establish that he was not required to obtain such advance
consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a), in the case of any alien described in such

subsection—
(1) whose removal was subsequent to a conviction for commission of three

or more misdemeanors involving drugs, crimes against the person, or
A2
both, or a felony (other than an aggravated felony), such alien shall be

fined under title 18, imprisoned not more than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission of an

aggravated felony, such alien shall be fined under such title, imprisoned
not more than 20 years, or both;
(3) who has been excluded from the United States pursuant to section
1225(c) of this title because the alien was excludable under section
1182(a)(3)(B) of this title or who has been removed from the United States
pursuant to the provisions of subchapter V, and who thereafter, without
the permission of the Attorney General, enters the United States, or
attempts to do so, shall be fined under title 18 and imprisoned for a period
of 10 years, which sentence shall not run concurrently with any other
sentence. or
(4) who was removed from the United States pursuant to section
1231(a)(4)(B) of this title who thereafter, without the permission of the
Attorney General, enters, attempts to enter, or is at any time found in, the
United States (unless the Attorney General has expressly consented to
such alien’s reentry) shall be fined under title 18, imprisoned for not more
than 10 years, or both.
For the purposes of this subsection, the term “removal” includes any
agreement in which an alien stipulates to removal during (or not during) a
criminal trial under either Federal or State law.
(c) Reentry of alien deported prior to completion of term of imprisonment

Any alien deported pursuant to section 1252(h)(2) [2] of this title who enters,
attempts to enter, or is at any time found in, the United States (unless the
Attorney General has expressly consented to such alien’s reentry) shall be
incarcerated for the remainder of the sentence of imprisonment which was
pending at the time of deportation without any reduction for parole or
supervised release. Such alien shall be subject to such other penalties relating to
the reentry of deported aliens as may be available under this section or any other
provision of law.
(d) Limitation on collateral attack on underlying deportation order
In a criminal proceeding under this section, an alien may not challenge the
A3
validity of the deportation order described in subsection (a)(1) or subsection

(b) unless the alien demonstrates that—
(1) the alien exhausted any administrative remedies that may have been
available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly
deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
A4
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g) and Ninth Cir. R. 32-1(a), I hereby
certify that this brief contains 13, 796 words (excluding the parts of the brief
exempted by Fed. R. App. P. 32(f)) and has been prepared in a proportionally
spaced, 14-point typeface using Microsoft Word 2013.
s/ Scott Meisler
Scott A.C. Meisler
STATEMENT OF RELATED CASES
The same constitutional challenge at issue in this appeal is presented in
United States v. Vasquez-Ortiz, No. 21-10309. It is also likely to be among the
questions presented in United States v. Gutierrez-Barba, No. 21-10232 (opening
brief due Dec. 20, 2021); and in United States v. Machic-Xiap, No. 3:19-cr-407 (D.
Or.), once appeal is taken from the final judgment in that case.
s/ Scott Meisler
Scott A.C. Meisler

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Case: 21-10233, 11/19/2021, ID: 12293159, DktEntry: 5, Page 1 of 78

United States Court of Appeals

UNITED STATES OF AMERICA,

On Appeal From The United States District Court For The

OPENING BRIEF FOR THE UNITED STATES

CHRISTOPHER CHIOU KENNETH A. POLITE, JR.

ELIZABETH O. WHITE LISA H. MILLER

TABLE OF AUTHORITIES ...................................................................... iii

JURISDICTION AND BAIL STATUS ....................................................... 3

STATEMENT OF THE ISSUE ................................................................... 3

STATEMENT OF THE CASE .................................................................... 4

A. Statutory Background ....................................................... 4

B. The District Court Holds Section 1326

SUMMARY OF ARGUMENT ................................................................. 14

STANDARD OF REVIEW ....................................................................... 17

I. SECTION 1326 IS CONSTITUTIONAL UNDER

A. Section 1326 Is Constitutional Under Rational-Basis

B. The District Court Erred In Declining To Apply The

II. SECTION 1326 DOES NOT VIOLATE EQUAL

A. Legal Framework ........................................................... 32

B. Section 1326’s Impact on Latinx Defendants Does Not

C. The District Court’s Finding of Discriminatory Intent

1. The district court erred in treating

2. President Truman’s veto does not support an

3. The district court misapprehended the Ford

4. The court gave excessive weight to

D. The Government Showed That Congress Would Have

STATUTORY ADDENDUM .................................................................. A1

STATEMENT OF RELATED CASES

Almendarez-Torres v. United States,

Amaya v. United States,

Arizona v. United States,

Arlington Heights v. Metropolitan Housing Development Corp.,

Bose Corp. v. Consumers Union of United States, Inc.,

City of Mobile v. Bolden,

Comm. Concerning Community Improvement v. City of Modesto,

Democratic National Committee v. Hobbs,

Dep’t of Homeland Security v. Thuraissigiam,

Department of Homeland Security v. Regents of the University of California,

E. Bay Sanctuary Covenant v. Garland,

Espinoza v. Mont. Dep’t of Revenue,

Hudson v. United States,

Johnson v. Governor of the State of Florida,

Kimbrough v. United States,

Latino Officers Ass’n, New York, Inc. v. City of New York,

Pena-Cabanillas v. United States,

Pers. Adm’r of Mass. v. Feeney,

United Stated v. Coleman,

United States v. Amador-Bonilla,

United States v. Arenas-Ortiz,

United States v. Ayala-Bello,

United States v. Barajas-Guillen,

United States v. Calderon-Segura,

United States v. Christensen,

United States v. Corrales-Beltran,

United States v. Dumas,

United States v. Evans,

United States v. Ferreira,

United States v. Gallegos-Aparicio,