United States v. Amador-Bonilla

102 F.4th 1110

UNITED STATES of America, Plaintiff - Appellee, v. Jose Luis AMADOR-BONILLA, Defendant - Appellant.Dr. S. Deborah Kang; Advocates for Basic Legal Equality; Justice Strategies;LatinoJustice PRLDEF; Legal Aid Justice Center; Massachusetts LawReform Institute; National Immigration Law Center;Al Otro Lado; American Gateways, f/k/a Political Asylum Project of Austin;Black Alliance for Just Immigration; California Collaborative for Immigrant Justice;Capital Area Immigrants' Rights Coalition;Chacon Center for Immigrant Justice At Maryland Carey Law;Immigration Detention Accountability Project of the Civil Rights Educationand Enforcement Center; Comunidad Maya Pixan Ixim;Detention Watch Network; Doctors for Camp Closure;Federal Defenders of Eastern Washington and Idaho;the Florence Immigrant & Refugee Rights Project; Immigrant Legal Defense;Immigrant Legal Resource Center; Immigration Equality;National Immigrant Justice Center;National Immigration Project of the National Lawyers Guild;Oregon Justice Resource Center; Public Counsel's Immigrants' Rights Project;Rocky Mountain Immigrant Advocacy Network;San Francisco Public Defender's Office; Texas Civil Rights Project;Washington Defender Association;Young Center for Immigrant Children's Rights;Asian Americans Advancing Justice; Human Rights First;Northwest Immigrant Rights Project; Ingrid Eagly; David G. Gutierrez;Mae Ngai; George J. Sanchez; Daniel Tichenor; Devra Weber;the Aoki Center for Critical Race and Nation Studies;Center for Immigration Law and Policy, Amici Curiae.

No. 22-6036

No. 22-6037

United States Court of Appeals, Tenth Circuit

FILED May 29, 2024

Appeal from the United States District Court for the Western District of Oklahoma (D.C. Nos. 5:21-CR-00187-C-1 & 5:21-CR-00330-C-1)

Laura Deskin, Assistant Federal Public Defender (Jeffery M. Byers, Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before MORITZ, SEYMOUR, and EID, Circuit Judges.

EID, Circuit Judge.

Jose Luis Amador-Bonilla was charged with violating 8 U.S.C. § 1326, Illegal Reentry After Removal from the United States. He moved to dismiss the indictment, arguing the illegal reentry provision of the Immigration and Nationality Act violates his right to equal protection enshrined in the Due Process Clause of the Fifth Amendment. The district court denied the motion, and he appealed.

Under the framework articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), Amador-Bonilla fails to show that Congress enacted the provision in 1952 with a discriminatory purpose as a motivating factor. And all parties agree that the provision otherwise satisfies rational basis review. We therefore conclude that 8 U.S.C. § 1326 does not violate the Fifth Amendment. In doing so, we join four of our sister circuits that have upheld 8 U.S.C. § 1326 against challenges on the same grounds.¹ Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the order of the district court denying Amador-Bonilla's motion to dismiss.

I.

Jose Luis Amador-Bonilla is a citizen of Guatemala and Nicaragua. Beginning at the age of fifteen, he entered the United States without authorization and was thereafter removed six times. Most recently, he was arrested in Oklahoma and charged with illegal reentry under 8 U.S.C. § 1326(a), an offense for which he had already been convicted twice. He filed a motion to dismiss the indictment, arguing § 1326 violates the equal protection guarantees of the Fifth Amendment. Amador-Bonilla argued the court must apply the Arlington Heights framework to his challenge. He argued that while facially neutral, § 1326 "intentionally ha[s] a disparate impact on persons who have entered this country without permission from a specific place (here, Latin America)" and that this disparate impact was motivated by racial or ethnic animus. R. Vol. I at 673.

In support of his argument, Amador-Bonilla introduced, as relevant here, (1) Congressional records from 1924, 1929, and 1952; (2) a transcript from a 1928 Congressional committee hearing on eugenics and immigration; (3) declarations that two experts, Professor Kelly Lytle Hernández and Professor Benjamin Gonzalez O'Brien,² had provided to the district court in United States v. Carrillo-Lopez, 555 F. Supp. 3d 996, 1027 (D. Nev. 2021), rev'd and remanded, 68 F.4th 1133 (9th Cir. 2023), cert. denied, — U.S. —, 144 S. Ct. 703, 217 L.Ed.2d 394 (2024); and (4) a transcript of a hearing from Carrillo-Lopez in which both experts testified.

After outlining the history of the illegal reentry provision, Amador-Bonilla presented evidence on the continued disparate impact § 1326 has on "Latinos."³ Aplt. Br. at 5. He relied in large part on what Professor Lytle Hernández wrote: "[T]he U.S. Bureau of Prisons reported that Mexicans never comprised less than 84.6 percent of all imprisoned immigrants," and in some years, "Mexicans compromised 99 percent of immigration offenders." R. Vol. I at 209 (declaration of Professor Lytle Hernández). Professor Lytle Hernández also wrote, "71 percent of all Mexican federal prisoners [are] charged with immigration crimes." Id.

The district court reviewed this and other evidence. It then determined that rational basis review applied to Amador-Bonilla's challenge and that the challenge failed because Amador-Bonilla failed to show there was no "rational relationship between the disparity of treatment and some legitimate governmental purpose." United States v. Amador-Bonilla, No. CR-21-187-C, 2021 WL 5349103, at *1 (W.D. Okla. Nov. 16, 2021) (citation omitted). And even if the Arlington Heights framework arguably applied (as Amador-Bonilla had urged), the district court found that Amador-Bonilla "failed to demonstrate that [8 U.S.C. § 1326] was passed with a discriminatory purpose as a motivating factor." Id. at *2. The court then denied his motion to dismiss the indictment.

Amador-Bonilla entered a conditional guilty plea to one count of violating 8 U.S.C. § 1326(a). He also admitted to violating a condition of supervised release, imposed after his conviction for the same offense in New Mexico. He now appeals his conviction in both cases.⁴

II.

We review the constitutionality of a statute de novo, beginning with a presumption that it is constitutional. United States v. White, 782 F.3d 1118, 1123 (10th Cir. 2015). To overcome that presumption, the challenger must make "a plain showing that Congress has exceeded its constitutional bounds." United States v. Brune, 767 F.3d 1009, 1015 (10th Cir. 2014) (citation omitted). A determination that a statute was enacted because of "discriminatory intent" is a factual finding reviewed for "clear error." Abbott v. Perez, 585 U.S. 579, 607, 138 S.Ct. 2305, 201 L.Ed.2d 714 (2018); see Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1261 (10th Cir. 1994).⁵

III.

Amador-Bonilla renews his argument that § 1326 violates the equal protection guarantees of the Fifth Amendment's Due Process Clause. U.S. Const. amend. V; see also Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (reverse-incorporating the equal protection guarantees of the Fourteenth Amendment into the Fifth Amendment). The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. "[T]he Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups." Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). And "when a statute classifies by race, alienage, or national origin," courts subject the law to "strict scrutiny" and will only sustain the law if it is "suitably tailored to serve a compelling state interest." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

The statute at issue here is 8 U.S.C. § 1326. That provision makes it a crime for "any alien"—who "has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding"—to thereafter "enter[ ], attempt[ ] to enter, or [be] at any time found in, the United States," unless an exception applies. 8 U.S.C. § 1326 (emphasis added). Importantly, the provision does not discriminate on its face. Without regard to race or alienage, § 1326 treats all reentering aliens the same way.

That said, the Supreme Court has held that a facially neutral statute can violate equal protection if a challenger proves that Congress enacted the statute for a discriminatory purpose or intent and the statute has a racially disparate impact. Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555.

Amador-Bonilla argues that we should apply the Arlington Heights framework to his challenge because, even though § 1326 is an immigration law, it has criminal penalties and discriminates against "Latino individuals" because of their race. Aplt. Br. at 20. Under the framework, he reasons that Congress enacted § 1326 for a discriminatory purpose and intent and that the statute has a racially disparate impact on Latinos. And he then argues that this intentionally discriminatory law does not survive strict scrutiny.

Instead of applying the Arlington Heights framework, the government argues that we should instead apply rational basis review to federal immigration laws and regulations, except in circumstances not relevant here. See generally Soskin v. Reinertson, 353 F.3d 1242, 1255 (10th Cir. 2004) ("When Congress exercises these powers to legislate with regard to aliens, the proper standard of judicial review is rational-basis review.")...