Guest post: Minyao Wang on U.S. v. Carrillo-Lopez
Guest Post by Minyao Wang
Last week a unanimous Ninth Circuit panel, composed of two judges appointed by the second President Bush and one judge appointed by President Obama, ruled in United States v. Carrillo-Lopez that 8 U.S.C. § 1326, which criminalizes reentry into the United States after deportation, is constitutional. The court reversed an earlier historic decision by Chief Judge Miranda Du of the District of Nevada that the provision violated the Fifth Amendment because Congress was motivated by racial animus toward people born in Mexico and Latin America when it enacted § 1326 as part of the Immigration and Nationality Act of 1952. Section 1326 was integral to the Trump administration’s assault on immigration. For the fiscal year ending in 2020, cases under § 1326 incredibly accounted for one third of all federal criminal prosecutions. In border districts, such prosecutions predominated the criminal dockets.
Under the framework for analyzing such constitutional challenges, a plaintiff must come forward with evidence that an impermissible Congressional purpose to discriminate was a “substantial or motivating factor.” If plaintiff clears this hurdle, then the government can still prevail by establishing that the law would have been enacted even if the discriminatory purpose was not considered by Congress. This burden allocation by necessity tilts the playing field in favor of the government. Before the Ninth Circuit, the government argued that immigration-related laws should be reviewed under a more deferential standard in light of congressional plenary power over immigration. The Ninth Circuit did not reach that question because in its view, the challenger failed to carry his burden that race was a substantial or motivating factor for the illegal reentry law.
There was circumstantial evidence of racial discrimination on the part Congress when it passed the 1952 Act over President Truman’s veto. But the Ninth Circuit resolved all doubt in favor of the government. It explained away offensive language in the legislative history regarding the influx of unlawful migrants from south of the border as “a factual description of Mexicans and other Latin Americans” as opposed to a denigratory comment on a racial group. Even the use of the term “wetback” in the legislative history was not enough because (i) the term was used by an Executive Branch official, not a member of Congress, (ii) it was used in the context of clarifying immigration officers’ search authority and, (iii) it was not directly tied to the enactment of § 1326.
Section 1326 was derived from the Immigration Act of 1929. It was not disputed that this earlier law was motivated by racism. But the panel concluded that this shameful pedigree was not relevant. The Congress comprehensively rewriting the nation’s immigration laws in 1952 was not tainted by the racism of its predecessor. The panel also rejected the argument that Congress must expressly disavow the racist animus from an earlier era. In invalidating § 1326, Judge Du had relied heavily on a declaration by UCLA History Professor Kelly Lytle Hernández, the nation’s leading historian on § 1326. But the Ninth Circuit dismissed in a footnote Professor Lytle Hernández’s declaration.
This case in my view was highly winnable. There is no way to sugarcoat the decision, which is a devastating blow for advocates of immigrant rights. The decision will be used to devastating effect if there is a new Trump-like administration. It is in particular disappointing that Judge Morgan Christen, who has had a history of authoring sensible opinions (see her thoughtful dissent in another case here, which will be reheard en banc by the court), did not dissent.
In my view, immigrant advocates need to be more thoughtful in their legal tactics. The federal public defender did an excellent winning job in front of Judge Du. But on appeal advocates inexplicably chose a polarizing academic with fringe views about the Constitution and a losing history in court to argue their case. As soon as that selection was made, my pro bono clients (some of the best-known civil right organizations on the East Coast) decided to forego filing amicus briefs. My sense is that having a radical professor as lead counsel alienated the two Bush appointees on the panel from the start and it proved too much for the Obama appointee too. The result was pre-ordained. Advocates need to understand that whether in the courts or on Capitol Hill, coming across as a fringe radical is counter productive.
KJ