United States v. Hernandez-Lopez

583 F.Supp.3d 815

UNITED STATES of America,

v.Juan Antonio HERNANDEZ-LOPEZ, Defendant.

CRIMINAL NO. H-21-440

United States District Court, S.D. Texas, Houston Division.

Signed February 2, 2022

John Joseph Wakefield, III, Financial Litigation, US Attorney's Office, Houston, TX, for United States of America.

MEMORANDUM OPINION AND ORDER

Lee H. Rosenthal, Chief United States District Judge

Juan Antonio Hernandez-Lopez, a native and citizen of El Salvador, is charged under 8 U.S.C. § 1326(a) with illegal reentry after removal. He was found in the United States after driving while intoxicated, on March 16, 2020. He was previously deported from the United States in 2008. Hernandez-Lopez moves to dismiss the indictment based on the Equal Protection guarantee of the Fifth Amendment. (Docket Entry No. 15). Hernandez-Lopez argues that 8 U.S.C. § 1326 violates the Equal Protection Clause because the statute was enacted with a discriminatory purpose and has a disparate impact on people from Mexico and Central America. The court held argument on the motion. Based on the thorough briefs and arguments from the parties, the record, and the applicable law, the court joins the other district courts that have rejected the same argument, and disagrees with the one court that has granted a motion to dismiss based on this argument. The court denies the motion. (Docket Entry No. 15). The reasons are stated below.

I. Background

"[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) (citing Bolling v. Sharpe , 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ). Criminal defendants, regardless of immigration status, are entitled to due process under the Fifth Amendment. United States v. Mendoza-Lopez , 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ("If [ § 1326 ] envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process."); Wong Wing v. United States , 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ("[E]ven aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.").

An equal protection violation need not appear on the face of the statute. The challenger may show that the law was enacted with an "invidious discriminatory purpose [that] may often be inferred from the totality of the relevant facts." Davis , 426 U.S. at 241–42, 96 S.Ct. 2040. Even if a decision is motivated in part by a racially discriminatory purpose, the law may still be valid if the government can establish that "the same decision would have resulted even had the impermissible purpose not been considered." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 271, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Both the challenger and, if necessary, the government satisfy their respective burdens by a preponderance of the evidence. Hunter v. Underwood , 471 U.S. 222, 225, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). Absent proof of a discriminatory purpose, courts apply rational basis review. See Arlington Heights , 429 U.S. at 265–66, 97 S.Ct. 555.

Hernandez-Lopez argues that § 1326 violates equal protection because the statute was enacted with racial animus and discriminatory intent. The government first responds that rational basis review applies because the statute is an immigration law and the differential treatment of those who lawfully enter the country and those who unlawfully enter is rational. The government also argues that even if rational basis review does not apply, the record does not show that § 1326(a) was reenacted with a discriminatory purpose in 1952, or when it was amended after that. The government also argues that the court should focus on the congressional intent in enacting § 1326(b)(1), which was not added until 1988.

Based on Hernandez-Lopez's evidence of Congress's intent in 1952 and in 1988, the court finds that the history, while shameful, does not require dismissal of this indictment. The reasons are stated below.

II. Analysis

A. The Case Law

No circuit court has yet addressed this issue, but several district courts have addressed the same motion and arguments. All have acknowledged the racial animus behind the 1929 law, but all but one court has declined to dismiss on that basis. Compare e.g., United States v. Novondo-Ceballos , No. 21-CR-383 RB, 554 F.Supp.3d 1114 (D.N.M. Aug. 12, 2021) (denying motion); United States v. Ruiz-Rivera , No. 3:20-MJ-20306-AHG, 2020 WL 5230519 (S.D. Cal. Sept. 2, 2020) (denying motion); United States v. Rios-Montano , No. 19-CR-2123-GPC, 2020 WL 7226441, at *8 (S.D. Cal. Dec. 8, 2020) (denying motion); United States v. Gutierrez-Barba , No. CR1901224001PHXDJH, 2021 WL 2138801, at *5 (D. Ariz. May 25, 2021), and United States v. Carrillo-Lopez , No. 320CR00026MMDWGC, 555 F.Supp.3d 996, 1000–01 (D. Nev. Aug. 18, 2021).

District courts in the Fifth Circuit have rejected these arguments. United States v. Barcenas-Rumualdo , No. 3:20-cr-1849 (W.D. Tex. May 7, 2021); Ortiz-Beltran v. United States , No. 7:21-cv-325 (S.D. Tex. Jan. 5, 2022) (Report and Recommendation to Deny Defendant's § 2255 Motion). The district courts that have addressed this issue differ as to whether this statute, as a criminal immigration law, is reviewed under the Arlington Heights framework or under rational basis only. Compare, e.g., Rios-Montano , 2020 WL 7226441, at *2 (applying Arlington Heights because "[a] criminal immigration statute passed by Congress is not insulated from scrutiny because the defendant seeks to prove the equal protection violation through a racially discriminatory Congressional motive rather than a facial classification on the basis of race"), and Gutierrez-Barba , 2021 WL 2138801, at *2 ("[W]here federal interests predominate, as in the immigration area, judicial scrutiny is relaxed to a "rational basis" standard.").

The court begins the analysis here with the more stringent Arlington Heights standard.

B. Congressional Intent under Arlington Heights

Arlington Heights requires Hernandez-Lopez to show both (1) that the official government decision (the statute, in this case) results in a racially disproportionate impact and (2) that it was motivated by a racially discriminatory intent or purpose. 429 U.S. at 264–65, 97 S.Ct. 555 ("[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."). Under Arlington Heights , to determine whether a decision was made with a discriminatory purpose, courts consider: "(1) the historical background of the decision, (2) the specific sequence of events leading up to the decision, (3) departures from the normal procedural sequence, (4) substantive departures, and (5) legislative history, especially where there are contemporary statements by members of the decision-making body." Veasey v. Abbott , 830 F.3d 216, 230–31 (5th Cir. 2016) (quoting Overton v. City of Austin , 871 F.2d 529, 540 (5th Cir. 1989) ).

Hernandez-Lopez does not need to show that the statute was solely motivated by racism, because "[r]arely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern[.]" Arlington Heights , 429 U.S. at 265, 97 S.Ct. 555. The impact of the decision "may provide an important starting point," such as when "a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." Id. at 266, 97 S.Ct. 555. "But such cases are rare." Id.

The record in this case is the same as in the earlier cases, with the addition of the affidavit of Professor S. Deborah Kang, a historian. (Docket Entry No. 25, 25-1, 25-2). The record includes the legislative history for the 1929 law, President Truman's letter to Congress explaining his veto of the 1952 bill, the declaration of another historian, Dr. Kelly Lytle Hernandez, and the transcript of the evidentiary hearing in Carrillo-Lopez , 555 F.Supp.3d 996 (D. Nev. Aug. 18, 2021), including testimony from Dr. Hernandez and Benjamin Gonzalez O'Brien, a political science professor.

Congress enacted the Undesirable Aliens Act in 1929, providing that "[a]ny alien who hereafter enters the United States at any time or place other than as designated by immigration officials or eludes examination or inspection by immigration officials ... shall be guilty of a misdemeanor." Act of Mar. 4, 1929, Pub. L. No. 70-1018, § 2. The Immigration and Nationality Act of 1952 ("INA"), often referred to as the McCarran-Walter Act ("McCarran-Walter Act"), codified the unlawful reentry provision under Title 8 of the United States Code, 8 U.S.C.A. § 1326. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 275, 66 Stat. 229. Since 1952, § 1326 has been amended five times—in 1988, 1990, 1994, and twice in 1996—to increase the penalties. Carrillo-Lopez , 555 F.Supp.3d at 1003–04. The government also notes that Hernandez-Lopez is subject to the penalty provisions in § 1326(b)(1), which were included as part of the amendments in the Anti-Drug Abuse Act of 1988. Subsection (b) increased penalties for those with prior felony convictions. See Pub. L. 100-690, title VII § 7345(a), 102 Stat. 4471 (Nov. 18, 1988) (codified at 8 U.S.C. § 1326 (1988) ). "Congress enacted and later amended § 1326(b) to increase the maximum illegal-reentry sentences for noncitizens whose previous...