United States v. Viveros-Chavez

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UNITED STATES OF AMERICA v. ALFREDO VIVEROS-CHAVEZ

No. 21 CR 665

United States District Court, N.D. Illinois, Eastern Division

June 13, 2022

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE

A federal statute, 8 U.S.C. § 1326, criminalizes the unlawful reentry of noncitizens who lack legal status. Defendant Alfredo Viveros-Chaves has filed a motion to dismiss the indictment in this case, which charges him with violating section 1326. He argues that this statute violates the Fifth Amendment's equal protection guarantee because it was enacted with discriminatory intent and disparately impacts Mexican and Latino individuals. The Court agrees with Viveros-Chavez that the statute is subject to traditional equal protection scrutiny but denies his motion to dismiss for the reasons set forth below.

Background

Viveros-Chavez a citizen of Mexico and not of the United States, has been removed from the United States twice in the past: once in March 2010, and again in September 2012. Nearly seven years later, in May 2019, he was convicted in Cook County for felony aggravated robbery. At the time of that conviction Viveros-Chavez did not have citizenship or lawful immigration status in the United States.

On November 17, 2021, a grand jury returned an indictment against Viveros- Chavez charging him with unlawful reentry in violation of section 1326. In short, this statute makes it a crime for a noncitizen to reenter or to be found in the United States after one "has been denied admission, excluded, deported or removed" without obtaining advance consent from the appropriate U.S. government official. 8 U.S.C. § 1326(a).

On February 18, 2022, Viveros-Chavez filed a motion to dismiss the indictment. He argues that his constitutional challenge to section 1326 is subject to traditional equal protection review and that the statute runs afoul of the Fifth Amendment's equal protection component because it was passed with discriminatory intent. His challenge follows in the wake of dozens of similar challenges around the country, including at least three in this district.^[1] Every court to decide this issue has rejected the constitutional challenge, except for one court in the District of Nevada. See United States v. Carrillo-Lopez, 555 F.Supp.3d 996 (D. Nev. 2021).

Discussion

A. Standard of review

The Supreme Court has construed the Fifth Amendment's Due Process Clause to provide analogous protection as the Fourteenth Amendment's Equal Protection Clause. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Accordingly, constitutional challenges to federal laws that discriminate on the basis of race are subject to strict scrutiny. When this kind of challenge is based on a law that is facially neutral, the law may be struck down only "if it can be proved that the law was motivated by a racial purpose or object, or if it is unexplainable on grounds other than race." Hunt v. Cromartie, 526 U.S. 541, 546 (1999) (cleaned up). This discriminatory intent inquiry was first formulated by the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).

Viveros-Chavez argues that the Arlington Heights framework should govern his challenge to section 1326 because he is asserting that Congress passed the law with discriminatory intent. The government disagrees. It contends that rational basis review should apply because section 1326 concerns immigration.

The Supreme Court has explained that federal immigration laws are afforded "special judicial deference," meaning judicial review is "narrow" and "limited." Fiallo v. Bell, 430 U.S. 787, 792-93 (1977). The government points to a handful of cases where the Seventh Circuit has applied rational basis review to constitutional challenges of laws that concern immigration. See, e.g., Lopez-Ramos v. Barr, 942 F.3d 376 (7th Cir. 2019) (statutory scheme conferring citizenship to some children born abroad); Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (statute providing for removal waiver depending on whether noncitizen has left country); United States v. Montenegro, 231 F.3d 389, 395 (7th Cir. 2000) (statute criminalizing hostage taking in connection with international terrorism); City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999) (statute disqualifying noncitizens from various welfare programs). Because section 1326 touches on immigration, the government contends rational basis review likewise should govern Viveros-Chavez's challenge to section 1326.

The Court disagrees with the government. At its essence, Viveros-Chavez's challenge is based on a claimed racial classification. Specifically, he contends that the Congress that passed section 1326 intended to discriminate against Latinos and Mexicans. As the Supreme Court explained in Bolling, "[c]lassifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect." Bolling, 347 U.S. at 499. The fact that section 1326 relates to immigration does not alter the thrust of the constitutional challenge, which involves a racial classification.

Taken to its extreme, the government's position would effectively require rational basis review even when a statute facially discriminates against specific races and nationalities so long as the statute concerns immigration. The Supreme Court, however, has not limited review in this way. In Department of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891 (2020), a majority of the Court concluded that the Arlington Heights framework applied to the plaintiffs' Fifth Amendment equal protection challenge to the termination of the immigration program known as Deferred Action for Childhood Arrivals, or DACA.^[2] See id. at 1915-16 (plurality); id. at 1917-18 (Sotomayor, J., concurring in part). And though the government in this case cites Regents to support its argument regarding the lack of disparate impact (as discussed below), it has not grappled with the Supreme Court's willingness to engage in an Arlington Heights analysis in the first place. Put simply, the Court finds Regents instructive.

The Seventh Circuit cases that the government relies upon are inapposite.

Those cases, cited above, concern immigration-related statutes where the constitutional challenge involved a classification based on legal status-specifically alienage, in other words treating noncitizens differently from citizens. Classifications based on immigration status are subject to rational basis review, and Viveros-Chavez does not suggest otherwise. See Mathews v. Diaz, 426 U.S. 67, 81 (1976). This case, in contrast, presents a constitutional challenge based on a claimed racial classification. The Seventh Circuit has cautioned against employing a rational basis test when a suspect class or fundamental right is at issue. See Eby-Brown Co., LLC v. Wisconsin Dep't. of Agric., 295 F.3d 749, 754 (7th Cir. 2002) (explaining rational basis should apply "[a]bsent some antipathy directed at a particular group"). Rational basis review is thus inappropriate in the present circumstances.

The Court concludes that the Arlington Heights framework applies to Viveros-Chavez's constitutional challenge to section 1326.

B. Equal protection challenge

Under Arlington Heights, a facially neutral statute may nevertheless be subject to strict scrutiny "[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision." Arlington Heights, 429 U.S. at 252; see also Hunt, 526 U.S. at 546. The statute's impact on a certain race or ethnicity provides "an important starting point." Arlington Heights, 429 U.S. at 266. But disparate impact alone is not enough. See Washington v. Davis, 426 U.S. 229, 239 (1976) (rejecting that a law "is unconstitutional solely because it has a racially disproportionate impact"). Courts must also assess other historical evidence in determining whether a racially discriminatory purpose was a motivating factor in the statute's passage. Pertinent evidence includes: 1) the "historical background of the decision"; 2) the "specific sequence of events leading to [passage]"; 3) "procedural" and "[s]ubstantive departures" from the typical legislating process; and 4) "legislative or administrative history" including "contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." Arlington Heights, 429 U.S. at 267-68.

The party challenging the law bears the burden of establishing discriminatory purpose. If the party carries that burden, the government has the opportunity to establish that "the same decision would have resulted even had the impermissible purpose not been considered." Id. at 270 n.21.

The Court will follow the parties' briefing and will address first the historical evidence underlying Congress' intent in passing section 1326, and then the issue of disparate impact.

1. Historical evidence

In 1929, Congress passed a law that criminalized reentry into the United States after removal. See Act of Mar. 4, 1929, Pub. L. No. 70-1018, 45 Stat. 1551. Also known as the Undesirable Aliens Act (UAA), this statute made unlawful reentry a felony punishable by up to two years' imprisonment and a fine of up to $1, 000. Prior to the Act of 1929, there was no criminal penalty for reentering the country after removal, aside from repeated removal.

Nearly 25 years later, in 1952, Congress passed the Immigration and Nationality Act (INA). See Pub. L. No. 82-414, 66 Stat. 163. Included in this comprehensive overhaul of the nation's immigration system was the provision that is codified today as 8 U.S.C. § 1326-the provision under which Viveros-Chavez is now charged. Although section 1326...