United States v. Gustavo Carrillo-Lopez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10233

Plaintiff-Appellant, D.C. Nos.

3:20-cr-00026-

v. MMD-WGC-1

3:20-cr-00026-

GUSTAVO CARRILLO-LOPEZ, MMD-WGC

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted December 8, 2022

Pasadena, California

Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan

Christen, Circuit Judges.

Opinion by Judge Ikuta

2 UNITED STATES V. CARRILLO-LOPEZ

SUMMARY*

Criminal Law

In a case in which the government charged Gustavo

Carrillo-Lopez, a citizen of Mexico, with illegally reentering

the United States following prior removal in violation of 8

U.S.C. § 1326, the panel reversed the district court’s order

granting Carrillo-Lopez’s motion to dismiss the indictment

on the ground that § 1326 violates the equal protection

guarantee of the Fifth Amendment and is therefore facially

invalid.

Carrillo-Lopez asserted that § 1326 violates the Fifth

Amendment because it discriminates against Mexicans and

other Central and South Americans. The district court held

that Carrillo-Lopez established that § 1326 was enacted with

a discriminatory purpose, and that the government failed to

prove that § 1326 would have been enacted absent such

motive.

Because Carrillo-Lopez’s equal protection challenge

fails even under the usual test for assessing such claims set

forth in Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252 (1977), the panel declined to address

whether immigration laws should be evaluated through a

more deferential framework.

As drafted, § 1326 is facially neutral as to race. The

panel therefore turned to the question whether Carrillo-

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CARRILLO-LOPEZ 3

Lopez carried his burden of showing that racial

discrimination was a motivating factor in enacting § 1326.

Because the most important evidence of legislative intent

is the relevant historical evidence, the panel started with the

history of § 1326, which was enacted in 1952 as part of the

Immigration and Nationality Act (INA). The panel

disagreed with Carrillo-Lopez’s argument that a Senate

Report, the basis for the 1952 legislation, is replete with

racism. The panel held that the district court clearly erred

when it relied on Congress’s decision to override President

Truman’s veto of the INA as evidence that § 1326 was

enacted in part by discriminatory animus. The panel rejected

as attenuated Carrillo-Lopez’s contention that Congress’s

intent to discriminate against Mexicans and other Central

and South Americans can be inferred from the Department

of Justice’s use of the word “wetback” in a letter

commenting on the INA.

The panel then addressed the legislative history of a prior

immigration law, the Act of March 4, 1929 (“the 1929 Act”),

which the parties did not dispute was motivated in part by

racial animus against Mexicans and other Central and South

Americans. The panel rejected Carrillo-Lopez’s arguments,

with which the district court largely agreed, that (1) the

discriminatory purpose motivating the 1929 Act tainted the

INA and § 1326 because some of the legislators were the

same in 1952 as in 1929, (2) the fact that the 1952 Congress

did not expressly disavow the 1929 Act indicates that

Congress was motivated by the same discriminatory intent,

and (3) the INA constituted a reenactment of the 1929 Act.

In addition to the legislative history, Carrillo-Lopez

argued that § 1326's disproportionate impact on Mexicans

and other Central and South Americans is evidence that

4 UNITED STATES V. CARRILLO-LOPEZ

Congress was motivated by a discriminatory intent in

enacting the statute. The panel wrote that evidence that

legislation had a disproportionate impact on an identifiable

group is generally not adequate to show a discriminatory

motive, and here, the evidence that § 1326 had a disparate

impact on Mexicans and other Central and South

Americans—and that Congress knew of this impact and

enacted § 1326 because of the impact—is highly

attenuated. The panel held that the district court clearly

erred when it relied on the evidence of disproportionate

impact without further evidence demonstrating that racial

animus was a motivating factor in the passage of the INA.

The panel concluded that the district court clearly erred

in its finding that Congress’s enactment of § 1326 was

motivated in part by the purpose of discriminating against

Mexicans or other Central and South Americans. Rather

than applying the strong presumption of good faith on the

part of Congress, the district court construed evidence in a

light unfavorable to Congress, including finding that

evidence unrelated to § 1326 indicated that Congress

enacted § 1326 due to discriminatory animus against

Mexicans and other Central and South Americans. The

panel held that the district court also erred in finding that

Congress’s failure “to repudiate the racial animus clearly

present in 1929” was indicative of Congress’s

discriminatory motive in enacting the INA.

The panel concluded that Carrillo-Lopez did not meet his

burden to prove that Congress enacted § 1326 because of

discriminatory animus against Mexicans or other Central

and South Americans. The panel therefore reversed the

district court’s order of dismissal and remanded.

UNITED STATES V. CARRILLO-LOPEZ 5

COUNSEL

Scott A.C. Meisler (argued), Attorney; Lisa H. Miller,

Deputy Assistant Attorney General; Kenneth A. Polite Jr.,

Assistant Attorney General; Appellate Section, Criminal

Division, United States Department of Justice; Washington,

D.C.; Peter H. Walkingshaw and Robert L. Ellman,

Assistant United States Attorneys; Elizabeth O. White,

Appellate Chief; Jason M. Frierson, United States Attorney

for the District of Nevada; Reno, Nevada; for Plaintiff-

Appellant.

Erwin Chemerinsky (argued), UC Berkeley School of Law,

Berkeley, California; Lauren Gorman, Ellesse Henderson,

Amy B. Cleary, and Wendi L. Overmyer, Assistant Federal

Public Defenders; Rene L. Valladares, Federal Public

Defender of the District of Nevada; Federal Public

Defenders’ Office; Las Vegas, Nevada; for Defendant-

Appellee.

Christopher J. Hajec, Center for Individual Rights,

Washington, D.C.; Gina M. D’Andrea, Immigration Reform

Law Institute, Washington, D.C., for Amicus Curiae

Immigration Reform Law Institute.

Philip L. Torrey, Attorney; Rachel Landry, Certified Law

Student; Harvard Law School Immigration and Refugee

Clinical Program; Cambridge, Massachusetts; for Amicus

Curiae Dr. S. Deborah Kang.

Ann Garcia and Khaled Alrabe, National Immigration

Project of the National Lawyers Guild, Washington, D.C.;

Sarah Thompson, National Immigrant Justice Center, San

Diego, California; for Amici Curiae Legal Service Providers

and Immigrant Rights Organizations.

6 UNITED STATES V. CARRILLO-LOPEZ

Max S. Wolson, National Immigration Law Center,

Washington, D.C.; Nicholas David Espiritu, National

Immigration Law Center, Los Angeles, California; Lourdes

Rosado, Andrew Case, and Nathalia Varela, Latinojustice

PRLDEF, New York, New York; for Amici Curiae Basic

Legal Equality, Justice Strategies, Latinojustice PRLDEF,

Legal Aid Justice Center, Massachusetts Law Reform

Institute, National Immigration Law Center, and Office of

the Marin County Public Defender.

Bradley S. Phillips, Munger Tolles & Olson LLP, Los

Angeles, California; Sarah Weiner, Munger Tolles & Olson

LLP, Washington, D.C.; for Amici Curiae Asian Americans

Advancing Justice, Conference of Asian Pacific American

Law Faculty, Human Rights First, Northwest Immigrant

Rights Project, and UNLV Immigration Clinic.

Amanda Valerio, Paul Weiss Rifkind Wharton & Garrison

LLP, Washington, D.C.; Alexia D. Korberg, Melina

Meneguin Layerenza, and Patrick McCusker, Paul Weiss

Rifkind Wharton & Garrison LLP, New York, New York;

for Amici Curiae Immigration Scholars.

Ahilan Arulanantham, UCLA School of Law, Los Angeles,

California; Eric Fish, UC Davis School of Law, Davis,

California; Yaman Salahi, Edelson P.C., San Francisco,

California; for Amici Curiae The Aoki Center of Critical

Race and Nation Studies, the Center for Immigration Law

and Policy, and the Southern Poverty Law Center.

UNITED STATES V. CARRILLO-LOPEZ 7

OPINION

IKUTA, Circuit Judge:

Gustavo Carrillo-Lopez, a citizen of Mexico, was

indicted for illegally reentering the United States following

prior removal, in violation of 8 U.S.C. § 1326. He

successfully moved to dismiss the indictment on the ground

that § 1326 violates the equal protection guarantee of the

Fifth Amendment and is therefore facially invalid. Because

Carrillo-Lopez did not carry his burden of proving that

§ 1326 was enacted with the intent to be discriminatory

towards Mexicans and other Central and South Americans,

and the district court erred factually and legally in holding

otherwise, we reverse.

I

Carrillo-Lopez is a citizen of Mexico. He was removed

from the United States twice, once in 1999 and once in 2012.

Before his removal in 2012, he was convicted of felony drug

possession and misdemeanor infliction of corporal injury on

a spouse. On some date after 2012, he reentered the United

States. On June 13, 2019, a search of his residence

uncovered two firearms and plastic bags containing

methamphetamine, cocaine, and heroin. Carrillo-Lopez was

arrested and subsequently pleaded guilty to a single count of

trafficking a controlled substance. On June 25, 2020, he was

indicted for illegal reentry following prior removal, in

violation of 8 U.S.C. § 1326(a), and subject to enhanced

penalties under § 1326(b) due to his prior convictions.

Under § 1326(a), “any alien who . . . has been denied

admission, excluded, deported, or removed . . . and

thereafter . . . enters, attempts to enter, or is at any time

found in, the United States,” without proper authorization, is

8 UNITED STATES V. CARRILLO-LOPEZ

subject to criminal penalties. 8 U.S.C. § 1326(a).1 Section

1326(b) imposes enhanced criminal penalties for aliens who

have previously been convicted of specified offenses. Id.

§ 1326(b).

Carrillo-Lopez moved to dismiss the indictment on the

ground that § 1326 violates the Fifth Amendment because it

discriminates against Mexicans and other Central and South

Americans.2 The district court granted the motion in a

1

Section 1326(a) provides in full:

Subject to subsection (b) [(imposing enhanced

penalties)], 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.

8 U.S.C. § 1326(a).

2

In his brief, Carrillo-Lopez primarily refers to Latinos, and states that

“‘Latino’ refers to people from Latin American countries, including

Mexico.” Elsewhere in the record, this population group is variously

referred to as Hispanics, Latinx, and Central and South Americans. For

UNITED STATES V. CARRILLO-LOPEZ 9

detailed opinion, holding that Carrillo-Lopez established

that § 1326 was enacted with a discriminatory purpose, and

that the government failed to prove that § 1326 would have

been enacted absent such motive. The government timely

appealed.

We have jurisdiction under 18 U.S.C. § 3731, and we

review 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) (per curiam). A determination that a statute

was enacted in part due to discriminatory animus is a factual

finding reviewed for clear error. Abbott v. Perez, 138 S. Ct.

2305, 2326 (2018).

II

A

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. The Supreme

Court has determined that “the 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 (1976). The “Court’s approach

to Fifth Amendment equal protection claims has always been

precisely the same as to equal protection claims under the

Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420

purposes of consistency and clarity, we refer to the group that § 1326

allegedly targets as Mexicans and other Central and South Americans.

10 UNITED STATES V. CARRILLO-LOPEZ

U.S. 636, 638 n.2 (1975).3 Therefore, cases analyzing

claims of state discrimination in violation of the Equal

Protection Clause are equally applicable to claims of federal

discrimination under the equal protection guarantee of the

Fifth Amendment. See Buckley v. Valeo, 424 U.S. 1, 93

(1976) (“Equal protection analysis in the Fifth Amendment

area is the same as that under the Fourteenth Amendment.”).

Assessing an equal protection challenge requires a court

to “measure the basic validity of [a] legislative

classification.” Pers. Adm’r of Mass. v. Feeney, 442 U.S.

256, 272 (1979). When a statute makes an express

classification on the basis of race, it “is presumptively

invalid and can be upheld only upon an extraordinary

justification.” Shaw v. Reno, 509 U.S. 630, 643–44 (1993)

(quoting Feeney, 442 U.S. at 272).

A statute that is facially neutral may also violate equal

protection principles, but only if a discriminatory purpose

was a motivating factor for the legislation. See Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

265–66 (1977). “Whenever a challenger claims that

a . . . law was enacted with discriminatory intent, the burden

of proof lies with the challenger.” Abbott, 138 S. Ct. at 2324.

To establish that the lawmakers had a discriminatory

purpose in enacting specific legislation, it is not enough to

show that the lawmakers had an “awareness of [the]

consequences” of the legislation for the affected group, that

those consequences were “foreseeable,” Feeney, 442 U.S. at

278–79, or that the legislature acted “with indifference to”

3

The Fourteenth Amendment provides that a state shall not “deny to any

person within its jurisdiction the equal protection of the laws.” U.S.

CONST. amend. XIV.

UNITED STATES V. CARRILLO-LOPEZ 11

the effect on that group, Luft v. Evers, 963 F.3d 665, 670 (7th

Cir. 2020). Rather, the lawmaking body must have “selected

or reaffirmed a particular course of action at least in part

‘because of,’ not merely ‘in spite of,’ its adverse effects upon

an identifiable group.” Feeney, 442 U.S. at 279. Therefore,

the plaintiff must “prove by an evidentiary preponderance

that racial discrimination was a substantial or motivating

factor in enacting the challenged provision.” Harness v.

Watson, 47 F.4th 296, 304 (5th Cir. 2022) (citing Hunter v.

Underwood, 471 U.S. 222, 227–28 (1985)).

There is no bright-line rule for determining whether the

plaintiff has carried this burden. Rather, the Supreme Court

has recognized that “[d]etermining whether invidious

discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” Arlington Heights,

429 U.S. at 266. Courts must consider the totality of the

evidence presented by the plaintiff in light of certain

presumptions and principles established by the Supreme

Court.

The most important evidence of legislative intent is the

historical evidence relating to the enactment at issue. The

Court considers factors such as (1) the “historical

background of the decision,” (2) the “specific sequence of

events leading up to the challenged decision,” (3)

“[d]epartures from the normal procedural sequence,” (4)

“[s]ubstantive departures,” and (5) “legislative or

administrative history.” Id. at 267–68.

This evidence must be considered in light of the strong

“presumption of good faith” on the part of legislators. Miller

v. Johnson, 515 U.S. 900, 916 (1995). It is “the plaintiffs’

burden to overcome the presumption of legislative good faith

12 UNITED STATES V. CARRILLO-LOPEZ

and show that the [legislature that enacted the current law]

acted with invidious intent.” Abbott, 138 S. Ct. at 2325. We

must also consider the evidence in context. In evaluating

“contemporary statements by members of the

decisionmaking body, minutes of its meetings, or reports,”

Arlington Heights, 429 U.S. at 268, a court must be aware

that the statements of a handful of lawmakers may not be

probative of the intent of the legislature as a whole. See

United States v. O’Brien, 391 U.S. 367, 384 (1968) (“What

motivates one legislator to make a speech about a statute is

not necessarily what motivates scores of others to enact

it . . . .”); see also League of Women Voters of Fla. Inc. v.

Fla. Sec’y of State, 66 F.4th 905, 939 (11th Cir. 2023) (“[A]

statement or inquiry by a single legislator would constitute

little evidence of discriminatory intent on the part of the

legislature.”). And the views of an earlier legislature are

generally not probative of the intent of a later legislature, see,

e.g., Abbott, 138 S. Ct. at 2325; United States v. Dumas, 64

F.3d 1427, 1430 (9th Cir. 1995), particularly when the

subsequent legislature has “a substantially different

composition,” Brnovich v. Democratic Nat’l Comm., 141 S.

Ct. 2321, 2349 n.22 (2021) (citation and quotation marks

omitted).

Because “[p]ast discrimination cannot, in the manner of

original sin, condemn governmental action that is not itself

unlawful,” Abbott, 138 S. Ct. at 2324 (quoting City of Mobile

v. Bolden, 446 U.S. 55, 74 (1980) (plurality opinion)), “the

presumption of legislative good faith [is] not changed by a

finding of past discrimination,” id. In Abbott, for instance,

the Texas legislature enacted a 2013 redistricting plan in

response to a challenge to its original 2011 plan. Id. at 2316–

17. A three-judge Texas court invalidated the 2013 plan on

the ground that it was tainted by the legislature’s

UNITED STATES V. CARRILLO-LOPEZ 13

discriminatory intent in passing the predecessor 2011 plan.

Id. at 2318. The Supreme Court reversed, stating “there can

be no doubt about what matters: It is the intent of the 2013

Legislature.” Id. at 2325. Because “it was the plaintiffs’

burden to overcome the presumption of legislative good faith

and show that the 2013 Legislature acted with invidious

intent,” the Texas court erred in reversing the burden of

proof and imposing on the state “the obligation of proving

that the 2013 Legislature had experienced a true ‘change of

heart’ and had ‘engage[d] in a deliberative process to ensure

that the 2013 plans cured any taint from the 2011 plans.’”

Id. (citation omitted). Therefore, there is no requirement that

the government show that a subsequent legislature

“somehow purged the ‘taint’” of a prior legislature, such as

by expressly disavowing the earlier body’s discriminatory

intent. Id. at 2324. Rather, as stated in Abbott, all that

matters is the intent of the legislature responsible for the

enactment at issue, and it is the “plaintiffs’ burden to

overcome the presumption of legislative good faith and show

that” the legislative body “acted with invidious intent.” Id.

at 2325.

In addition to historical evidence relating to the

enactment at issue, courts may consider evidence that the

legislation at issue has a disproportionate impact on an

identifiable group of persons. But while “[d]isproportionate

impact is not irrelevant,” it is generally not dispositive, and

there must be other evidence of a discriminatory purpose.

Davis, 426 U.S. at 242. “[E]ven if a neutral law has a

disproportionately adverse effect upon a racial minority, it is

unconstitutional under the Equal Protection Clause only if

that impact can be traced to a discriminatory purpose.”

Feeney, 442 U.S. at 272. A court may not infer a

discriminatory motive based solely on evidence of a

14 UNITED STATES V. CARRILLO-LOPEZ

disproportionate impact except in rare cases where “a clear

pattern, unexplainable on grounds other than race, emerges

from the effect of the state action.” Arlington Heights, 429

U.S. at 266. Moreover, if the enactment of the legislation

and the disproportionate impact are not close in time, the

inference that a statute was enacted “because of” its impact

on an identifiable group is limited. Feeney, 442 U.S. at 279.

Thus, “unless historical evidence is reasonably

contemporaneous with the challenged decision, it has little

probative value.” McCleskey v. Kemp, 481 U.S. 279, 298

n.20 (1987); see also Johnson v. Governor of the State of

Fla., 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 1986 law as

discriminatory).

If the challenger satisfies the burden of showing a

discriminatory purpose was a motivating factor, the burden

then shifts to the government to show that “the same decision

would have resulted even had the impermissible purpose not

been considered.” Arlington Heights, 429 U.S. at 270 n.21.

If the government carries this burden, there is no equal

protection violation even if there is evidence that the

legislature had a discriminatory motive. Id.

If the challenger succeeds in showing that the legislation

or official action is motivated in part by discrimination based

on race or national origin, and the government would not

have enacted the same legislation absent such motivation,

the enactment violates equal protection principles unless the

government has a compelling reason for enacting it. See City

of Cleburne. v. Cleburne Living Ctr., 473 U.S. 432, 440

(1985).

UNITED STATES V. CARRILLO-LOPEZ 15

B

The government contends that the standard described

above is inapplicable to immigration laws. Rather, it argues,

such laws should be evaluated through a more deferential

framework because the Court has held that courts must defer

“to the federal government’s exclusive authority over

immigration matters.”

It is true that the Court has “long recognized the power

to expel or exclude aliens as a fundamental sovereign

attribute exercised by the Government’s political

departments largely immune from judicial control.” Fiallo

v. Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v.

United States ex rel. Mezei, 345 U.S. 206, 210 (1953)).

More recently, the Court has stated that “[b]ecause decisions

in these [immigration] matters may implicate ‘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 Executive.’”

Trump v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018) (quoting

Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Further, the Court

has (without precise explanation) applied a deferential

standard, akin to rational basis review, in some contexts

involving immigration cases. See, e.g., Fiallo, 430 U.S. at

792–96 (giving minimal scrutiny to a gender-based

distinction in an immigration law); cf. Hawaii, 138 S. Ct. at

2441 (Sotomayor, J., dissenting) (arguing that the majority,

“without explanation or precedential support, limits its

review of the [Presidential Proclamation barring entry of

aliens from countries that were predominantly Muslim] to

rational-basis scrutiny”).

16 UNITED STATES V. CARRILLO-LOPEZ

Nevertheless, the Supreme Court has also (again,

without precise explanation) applied higher scrutiny to

immigration actions. For instance, in considering whether

the Executive Branch’s rescission of an administrative

immigration relief program violated the equal protection

guarantee of the Fifth Amendment, the Court considered

whether the plaintiffs raised “a plausible inference that an

‘invidious discriminatory purpose was a motivating factor’

in the relevant decision.” Dep’t of Homeland Sec. v. Regents

of the Univ. of Cal., 140 S. Ct. 1891, 1915 (2020) (quoting

Arlington Heights, 429 U.S. at 266). Neither the Supreme

Court nor we have directly addressed the issue regarding

which standard of review applies to equal protection

challenges to immigration laws.4 We decline to address this

issue, because (as explained below), Carrillo-Lopez’s equal

protection challenge fails even under the usual test for

assessing such claims set forth in Arlington Heights.

III

We now turn to the question whether the district court

erred in concluding that Carrillo-Lopez carried his burden of

proving that § 1326 is invalid under equal protection

principles because it discriminates against Mexicans and

other Central and South Americans.

4

Ramos v. Wolf also held that a higher standard of scrutiny applies to a

congressional enactment and the lower standard of scrutiny is limited to

enactments by the Executive Branch. 975 F.3d 872, 895–96 (9th Cir.

2020). But that decision has been vacated and scheduled for rehearing

en banc, see Ramos v. Wolf, 59 F.4th 1010, 1011 (9th Cir. 2023), and

therefore has no precedential effect. See, e.g., Durning v. Citibank, N.A.,

950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (“[A] decision that has been

vacated has no precedential authority whatsoever.”).

UNITED STATES V. CARRILLO-LOPEZ 17

A

Section 1326 provides that “any alien who . . . has been

denied admission, excluded, deported or removed” from the

United States and, without permission, later “enters,

attempts to enter, or is at any time found in, the United

States” shall be imprisoned for up to two years. 8 U.S.C.

§ 1326(a).

As drafted, § 1326 is facially neutral as to race.

Therefore, we turn to the question whether Carrillo-Lopez

has carried his burden of showing “that racial discrimination

was a substantial or motivating factor in” enacting § 1326.

Hunter, 471 U.S. at 225 (citation omitted). Because the most

important evidence of legislative intent is the relevant

historical evidence, we start with the history of § 1326,

which was enacted in 1952 as part of the Immigration and

Nationality Act. S. 2842, 82d Cong., 2d Sess., § 276 (1952);

Immigration and Nationality Act of 1952, 8 U.S.C. § 1101

et seq. [hereinafter INA].

B

The history of the INA began in 1947, when the Senate

directed the Senate Committee on the Judiciary “to make a

full and complete investigation of [the country’s] 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)

[hereinafter Senate Report]. This effort was “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). The subcommittee tasked with this

investigation examined “a great volume of reports, exhibits,

and statistical data,” examined officials and employees of

the Immigration and Naturalization Service (INS) and

18 UNITED STATES V. CARRILLO-LOPEZ

various divisions of the State Department, and made field

investigations throughout Europe and the United States, as

well as at the Mexican border, in Canadian border cities, and

in Havana, Cuba. Senate Report, at 2–4. Recognizing that

the immigration law of the United States was established by

“2 comprehensive immigration laws which are still in effect”

and “over 200 additional legislative enactments,” as well as

“treaties, Executive orders, proclamations, and a great many

rules, regulations and operations instructions,” the

subcommittee determined that it would “draft one complete

omnibus bill which would embody all of the immigration

and naturalization laws.” Id. at 4.

The extensive 925-page Senate Report provided a

comprehensive analysis of immigration law. Part 1 set out a

detailed review of the immigration system, providing

(among other things) a description of the “[r]aces and

peoples of the world,” a “[h]istory of the immigration policy

of the United States,” a “[s]ummary of the immigration

laws,” and a discussion of the “characteristics of the

population of the United States.” Id. at iii–iv. It included a

discussion of excludable and deportable classes of aliens, as

well as discussing admissible aliens, with special focus on

so-called “quota” and “nonquota” immigrants.5 Id. at iii, 68–

71.

In connection with the discussion of the characteristics

of the population of the United States in Part 1, the Senate

Report provided an overview of specified characteristics of

different population groups in the Americas, including

5

A “quota immigrant is . . . an alien entering for permanent residence”

who is “subject to numerical restriction, as distinguished from the

nonquota immigrant who is likewise entering for permanent residence

but who is not subject to numerical restriction.” Senate Report, at 420.

UNITED STATES V. CARRILLO-LOPEZ 19

Canadians and Mexicans. These sections all followed the

same template for each population group. In discussing

Mexicans, the Senate Report covered (among other things)

the population change since 1820 due to Mexican

immigrants who had legally and illegally entered the United

States, the geographical distribution of native-born and

foreign-born Mexicans, the “naturalization and

assimilation” of Mexicans, and employment and crime data.

Id. at 149–50. This section also included this data for “other

Latin Americans.” Id. at 150–52.

One of the longest sections in Part 1, covering some 173

pages, discussed whether to continue “the numerical

restriction of immigration through the imposition of quotas.”

Id. at 417. As explained in the Senate Report, the existing

quota system fixed the number of persons from each covered

nation who could enter the United States for permanent

residence at the “number which bears the same ratio to

150,000 as the number of inhabitants in the United States in

1920 of that nationality bears to the total number of

inhabitants in the continental United States in 1920.” Id. at

420. Historically, “[t]he first numerical restriction” on

immigration into the United States “was imposed by the

Quota Act of May 19, 1921,” to address concerns “in the

period immediately following [World War I], as a result of

growing labor unrest, increasing unemployment, and general

alarm over the potential flood of ‘newer’ immigrants from

war-torn Europe.” Id. at 419. Over the decades, limitations

on quota immigrants changed, such as the removal of the bar

to Chinese immigration. See id. at 422, 426. Immigrants

from Western Hemisphere countries (including Mexico and

other countries in Central and South America) were

excluded from this national-origin quota system. Id. at 459.

20 UNITED STATES V. CARRILLO-LOPEZ

The Senate Report acknowledged that the national-

origin quota system was controversial because some

opponents labeled it as “discriminatory in the treatment of

certain nationalities of Europe,” id. at 448, and therefore

attempted to “examine this controversial subject objectively

in order to present an unbiased appraisal of the quota

system.” Id. at 417. The Senate Report ultimately

recommended retaining the quota system, but making

“changes in existing law both with respect to the manner in

which quotas [were] established for intending immigrants

and the determination of preferences within the quotas.” Id.

at 588.

Part 1 also included a chapter on procedures relating to

immigrants and nonimmigrants. Id. at viii–ix. This section

discussed procedures for admission, exclusion, expulsion,

bonds, and immigration offenses. Id. at 612–56. In the

section on immigration offenses, the Senate Report

discussed illegal reentry after deportation, and explained that

a prior immigration law, the Act of March 4, 1929, “ma[de]

it a felony for any deported alien who ha[d] not received

permission to reapply for admission to enter or attempt to

enter the United States.” Id. at 646 (citation omitted). In

making “[s]uggestions relating to criminal provisions,” the

Senate Report noted that statements from witnesses and field

offices of the INS stressed the “difficulties encountered in

getting prosecutions and convictions, especially in the

Mexican border area” because “many flagrant violators of

the immigration laws [were] not prosecuted or, if prosecuted,

[got] off with suspended sentences or probation.” Id. at 654.

The Senate Report recommended that “enact[ing] legislation

providing for a more severe penalty for illegal entry and

smuggling, as suggested by many, would not solve the

problem.” Id. at 654–55. Instead, it recommended that the

UNITED STATES V. CARRILLO-LOPEZ 21

“provisions relating to reentry after deportation . . . be

carried forward in one section and apply to any alien

deported for any reason and provide for the same penalty.”

Id. at 656.

Part 2 of the Senate Report provided a detailed overview

of the naturalization system, including the history of

naturalization laws and citizenship. See id. at x–xii. In the

context of discussing eligibility for naturalization, the Senate

Report stated that the subcommittee had held “special

hearings” on “[t]he subject of racial eligibility to

naturalization.” Id. at 710. The subcommittee concluded

that “in consideration of our immigration laws, the

subcommittee fe[lt] that the time ha[d] come to erase from

our statute books any discrimination against a person

desiring to immigrate to this country or to become a

naturalized citizen, if such discrimination [was] based solely

on race.” Id. The subcommittee recommended that “all

prerequisites for naturalization based solely on the race of

the petitioner be eliminated from our naturalization laws,” as

set forth in the Senate Report. Id.6

After the issuance of the Senate Report, Senator Pat

McCarran introduced S. 3455 in the Senate, which provided

for the repeal of then-current immigration and naturalization

laws and the enactment of a completely revised immigration

and naturalization code. Off. of the Historian, U.S. Dep’t of

State, Foreign Relations of the United States, 1952-54,

General: Economic and Political Matters, Vol. 1, Pt. 2, at

1569–70 (William Z. Slany ed., 1983). After input from the

staff of the Senate Immigration Subcommittee as well as

6

Part 3 of the Senate Report discussed communism and “subversive”

aliens, and Part 4 contained appendices. Senate Report, at xii–xviii.

22 UNITED STATES V. CARRILLO-LOPEZ

experts from the INS and the Department of State, and

extensive revisions, Senator McCarran introduced S. 716, a

revised version of S. 3455, and Representative Francis E.

Walter introduced an identical companion House bill, H.R.

2379. Id. at 1570. Extensive joint hearings were conducted

by various House and Senate subcommittees. Id.

Following the joint hearings, and in the course of

numerous conferences, Senator McCarran and

Representative Walter introduced the final versions of the

bill in the Senate and the House (S. 2550 and H.R. 5678,

respectively). Id. According to a Senate Judiciary

Committee Report, the revised bill made several significant

changes from prior law. The changes included a “system of

selective immigration within the national origins quota

system.” S. REP. NO. 82-1137, at 3 (1952) [hereinafter

Senate Judiciary Committee Report]. The national-origin

quota system was revised to use a new formula and with an

alteration in quota preferences to aliens with specified skills

and relatives of United States citizens and alien residents. 98

Cong. Rec. 5796 (1952); id. at 4996 (statement of Sen. Thye)

(stating that he was impressed with the argument that quotas

should be given “to facilitate reunion of families and

relatives” and “provide needed workers and desirable skills

for this country”). The bills also removed “[r]acial

discriminations and discriminations based upon sex.”

Senate Judiciary Committee Report, at 3; see also 98 Cong.

Rec. 5765 (1952) (statement of Sen. McCarran) (“Under the

provisions of S. 2550, no one will be inadmissible to the

United States solely because of race and since the bill is

removing discriminations from the law in this regard, it

cannot be said that new racial discriminations are being

introduced.”). Further, “[s]tructural changes [were] made in

the enforcement agencies for greater efficiency;” and the

UNITED STATES V. CARRILLO-LOPEZ 23

bills strengthened “[t]he exclusion and deportation

procedures.” Senate Judiciary Committee Report, at 3. The

Senate Judiciary Committee Report made only one mention

of the reentry provisions. It stated: “In addition to the

foregoing, criminal sanctions are provided for entry of an

alien at an improper time or place, for misrepresentation and

concealment of facts, for reentry of certain deported aliens,

for aiding and assisting subversive aliens to enter the United

States, and for importation of aliens for immoral purposes.”

Id. at 37.7 The Senate Judiciary Committee Report did not

specifically reference the provision that penalized reentry

after removal (Section 276 of Senate Bill 2550).

Congressional debates over the final bill focused on the

national-origin quota system. Critics argued that this system

was arbitrary because it favored the “so-called Nordic strain”

of immigrants but disfavored “people from southern or

eastern Europe.” 98 Cong. Rec. at 5768 (1952) (statement

of Sen. Lehman). Senator Hubert Humphrey and Senator

Herbert Lehman sponsored a competing bill, S. 2842, which

aimed at making “the entire quota system more flexible and

more realistic,” id. at 2141, but the bill did not garner enough

support to be given a hearing, id. at 5603.

7

A House Report on H.R. 5678, states only:

In addition to the foregoing, criminal sanctions are

provided for entry of an alien at an improper time or

place, for misrepresentation and concealment of facts,

for reentry of certain deported aliens, for aiding and

assisting subversive aliens to enter the United States,

and for importation of aliens for immoral purposes.

H.R. REP. NO. 82-1365, at 68 (1952).

24 UNITED STATES V. CARRILLO-LOPEZ

Congressional debates did not mention the illegal reentry

provision, Section 276. “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.” United States

v. Ortiz-Martinez, 557 F.2d 214, 216 (9th Cir. 1977).

Carrillo-Lopez concedes that “[c]ongressional debate

focused on the national-origins provisions, not the illegal

reentry statute.” There was no discussion of Section 276’s

impact on Mexicans or other Central and South Americans.

The controversy over the national-origin quota system

continued even after the bill (now referred to as H.R. 5678)

passed both houses of Congress, because President Truman

vetoed the bill due to his opposition to the national-origin

quota system. See Veto of Bill to Revise the Laws Relating

to Immigration, Naturalization, and Nationality, 1 PUB.

PAPERS 441–45 (June 25, 1952). In his veto statement,

President Truman first made clear that the bill “contains

certain provisions that meet with my approval,” including

removing “[a]ll racial bars to naturalization.” Id. at 441.

Nevertheless, President Truman opposed a number of the

bill’s features, most significantly its provisions continuing

“the national origins quota system.” Id. at 442. President

Truman explained that he had “no quarrel” with the general

idea of quotas, but stated that the national-origin quota

system was “too small for our needs today and . . . create[d]

a pattern that [was] insulting to large numbers of our finest

citizens, irritating to our allies abroad, and foreign to our

purposes and ideals.” Id. According to President Truman,

the system perpetuated by the bill discriminated against

people of Southern and Eastern Europe, in favor of

immigrants from England, Ireland, and Germany, which

President Truman argued was improper both on moral and

UNITED STATES V. CARRILLO-LOPEZ 25

political grounds. Id. at 442–43. In particular, President

Truman noted the United States’ alliance with Italy, Greece,

and Turkey, and the need to help immigrants from Eastern

Europe who were escaping communism. Id. at 443.

President Truman did not mention Mexicans or other Central

and South Americans, to whom the national-origin quota

system did not apply.8 Nor did he mention the provision

criminalizing reentry, Section 276. Congress enacted the

INA over President Truman’s veto. 98 Cong. Rec. 8253–68

(1952).

As enacted, Section 276 (subsequently codified as 8

U.S.C. § 1326), replaced the reentry offenses set forth in

three prior statutory sections.9 In creating a single offense,

8

The 1924 Act, which introduced the national-origin quota system,

exempted all Western Hemisphere countries from the system.

9

The Supreme Court explained that

[b]efore § 1326 was enacted, three statutory sections

imposed criminal penalties upon aliens who reentered

the country after deportation: 8 U.S.C. § 180(a) (1946

ed.) (repealed 1952), which provided that any alien

who had been “deported in pursuance of law” and

subsequently entered the United States would be guilty

of a felony; 8 U.S.C. § 138 (1946 ed.) (repealed 1952),

which provided that an alien deported for prostitution,

procuring, or similar immoral activity, and who

thereafter reentered the United States, would be guilty

of a misdemeanor and subject to a different penalty;

and 8 U.S.C. § 137–7(b) (1946 ed., Supp. V) (repealed

1952), which stated that any alien who reentered the

country after being deported for subversive activity

would be guilty of a felony and subject to yet a third,

more severe penalty.

26 UNITED STATES V. CARRILLO-LOPEZ

it also eliminated the three different criminal penalties

imposed by these three prior statutes, and instead subjected

all reentry defendants to the same penalty: two years’

imprisonment and a fine. H.R. 5678, 82d Cong., 2d Sess.,

§ 276 (Apr. 28, 1952); see United States v. Mendoza-Lopez,

481 U.S. 828, 835–36 (1987). The new Section 276 also

added 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). Finally,

§ 1326 eliminated the language that would permit aliens to

bring collateral challenges to the validity of their deportation

proceedings in subsequent criminal proceedings. See

Mendoza-Lopez, 481 U.S. at 836.10

C

We now turn to Carrillo-Lopez’s arguments that

Congress was motivated in part by discrimination against

Mexicans and other Central and South Americans in

enacting § 1326 as part of the INA in 1952.

United States v. Mendoza-Lopez, 481 U.S. 828, 835 (1987) (citing H.R.

REP. NO. 82-1365, at 219–20 (1952)).

10

After the Supreme Court ruled that precluding such collateral

challenges would violate an alien’s due process rights, see Mendoza-

Lopez, 481 U.S. at 832, 839, “Congress responded by enacting §

1326(d),” which “establishe[d] three prerequisites that defendants facing

unlawful-reentry charges must satisfy before they can challenge their

original removal orders.” United States v. Palomar-Santiago, 141 S. Ct.

1615, 1619 (2021) (citing Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), § 441, 110 Stat. 1279).

UNITED STATES V. CARRILLO-LOPEZ 27

1

Because historical evidence relating to the enactment at

issue is most probative, we first consider Carrillo-Lopez’s

arguments relating to the legislature’s enactment of § 1326

in 1952. Carrillo-Lopez begins by arguing that the Senate

Report, the basis for the 1952 legislation, is “replete with

racism.” He points to certain statements in Part 1 of the

Senate Report, which discussed different population groups.

In the subsection on Mexicans, the Senate Report stated that

since 1820, “over 800,000 immigrants have legally entered,”

and “it has been reliably estimated that Mexican aliens are

coming into the United States illegally at a rate of 20,000 per

month.” Senate Report, at 149. Later in Part 1, a chapter

discussing the historical background and current law

regarding excludable and deportable classes of aliens noted

that a 1917 immigration law excluded from admission aliens

who were previously deported from the United States. Id. at

335–36. The Senate Report stated that “[t]he largest number

of persons, who as aliens are deported twice, are deported to

Mexico. The problem appears, therefore, to be principally a

southern border problem and is discussed in the section on

deportation problems.” Id. at 365.

Carrillo-Lopez argues that the statements that “Latino

immigrants were ‘coming into the United States illegally at

a rate of 20,000 per month,’ and the statement that people

entering illegally after being deported is ‘principally a

southern border problem,’” evince racism. Carrillo-Lopez

also describes statements in Part 1 as “denigrat[ing] Latino

immigrants as particularly undesirable due to alleged: low-

percentage of English speakers; inability to assimilate to

‘Anglo-American’ culture and education, with Latino

28 UNITED STATES V. CARRILLO-LOPEZ

students believed to be ‘as much as 3 years behind’; and a

high number receiving ‘public relief.’”11

We disagree. In context, the statements Carrillo-Lopez

identified in the Senate Report merely provided a factual

description of Mexicans and other Latin Americans, along

with all other “races and peoples.” There is no language that

“denigrates Latino immigrants as particularly undesirable.”

Indeed, neither Carrillo-Lopez nor the district court

identified any racist or derogatory language regarding

Mexicans or other Central and South Americans in these

pages, or anywhere else in the 925-page Senate Report.

Second, Carrillo-Lopez contends that Congress’s

discriminatory intent in enacting § 1326 can be inferred from

Congress’s decision to enact the INA over President

Truman’s veto. The district court agreed with this

argument.12 But President Truman’s opposition to the

national-origin quota system, the central reason for his veto,

sheds no light on whether Congress had an invidious intent

11

The district court did not identify any language in either the Senate

Report or congressional record that evinced racism, but rather relied on

the 1952 Congress’s failure to repudiate a prior immigration law, Act of

March 4, 1929, Pub. L. No. 70-1018, 45 Stat. 1551 (the “1929 Act”), as

well as other historical evidence discussed below.

12

The district court concluded that Congress’s “failure to heed President

Truman’s call to ‘reimagine’ immigration while simultaneously making

the INA, and particularly Section 1326, more punitive in nature, is

evidence of at least indifference to the nativist motivations of the

statute’s predecessor,” and therefore “contribute[d] to [the] finding that

Carrillo-Lopez [had] met his burden” of showing that enacting § 1326

was motivated by discriminatory intent. This conclusion ignores the

presumption of legislative good faith, which compels the conclusion that

indifference to prior legislation is not evidence of discriminatory animus.

Abbott, 138 S. Ct. at 2325.

UNITED STATES V. CARRILLO-LOPEZ 29

to discriminate against Mexicans and other Central and

South Americans in enacting § 1326. Mexicans and other

Central and South Americans were not part of the national-

origin quota system, see Senate Report, at 472, and as the

district court conceded, “President Truman did not explicitly

address racism as to Mexican[s] or” other Central and South

Americans, and “did not address Section 1326 specifically.”

Further, President Truman’s opinion on the legislation is not

evidence of Congress’s motivation in enacting § 1326. See

United States v. Barcenas-Rumualdo, 53 F.4th 859, 867 (5th

Cir. 2022). The district court clearly erred when it relied on

Congress’s decision to override President Truman’s veto as

evidence that § 1326 was enacted in part by discriminatory

animus.

Finally, Carrillo-Lopez contends that Congress’s intent

to discriminate against Mexicans and other Central and

South Americans can be inferred from the Department of

Justice’s use of the word “wetback” in a letter commenting

on the INA. The district court agreed. The record shows

that after Senator McCarran introduced S. 716 (a revised

version of S. 3455), the Senate Judiciary Committee

“request[ed] the views of the Department of Justice” relating

to this draft. Letter from Peyton Ford, Deputy Att’y Gen., to

Sen. Pat McCarran, Chairman of the Comm. on the Judiciary

(May 14, 1951). As requested, Deputy Attorney General

Peyton Ford provided a comment letter. Id. In commenting

on Sections 201 and 202, which removed racial ineligibility

from the quota system, the Ford letter stated that the

“Department of Justice favors the removal of racial bars to

immigration.” Id. Next, in commenting on Section 276 (the

provision at issue here), the Ford letter stated that Section

276 “adds to existing law by creating a crime which will be

committed if a previously deported alien is subsequently

30 UNITED STATES V. CARRILLO-LOPEZ

found in the United States,” and observed that “[t]his change

would overcome the inadequacies in existing law which

have been observed in those cases in which it is not possible

for the [INS] to establish the place of reentry.” Id. The Ford

letter recommended some clarifications in the language of

this section. Id. Finally, in commenting on Section 287 of

the proposed act, which granted authority to officers of the

INS to conduct searches of applicants for admission under

certain circumstances, the Ford letter asked that Congress

give specific authority to immigration officers to go onto

private property to search for “aliens or persons believed to

be aliens.” Id. In making this suggestion, the letter quoted

a 1951 “report of the President’s Commission on Migratory

Labor,” which recommended that immigration officers be

given authority to investigate private farms, in order to assist

in “taking action against the conveyors and receivers of the

wetback,” referring to alien smugglers and employers who

harbor aliens. Id. Carrillo-Lopez argues that this letter is

probative of Congress’s discriminatory intent because it

refers to Mexicans as “wetback[s],” which shows an animus

that Carrillo-Lopez claims should be imputed to Congress.

We reject this attenuated argument. The Ford letter’s use

of the term “wetback” sheds no light on Congress’s views.

The Ford letter quoted a separate report that employed that

term when recommending that Congress clarify immigration

officers’ search authority to assist in enforcing the law

against smugglers and persons who harbored illegal

entrants.13 And contrary to Carrillo-Lopez’s argument, the

13

The district court also erred in relying on the passage of an act some

dubbed the “Wetback Bill” as evidence of Congress’s discriminatory

intent. The district court held that “both the derogatory nickname of the

Wetback Bill and its criminalization of Mexican immigrant laborers

while shielding employers evidence[d] the racially discriminatory

UNITED STATES V. CARRILLO-LOPEZ 31

Ford letter did not recommend that Congress add a provision

allowing enforcement when an alien was “found in” the

United States that was then adopted by Congress. Rather,

both prior drafts of the bill that became the INA included this

offense; the Ford letter merely suggested clarifying

language.14 Because the Ford letter did not evince

discriminatory intent, the argument that it shows Congress’s

discriminatory intent fails.

Given the lack of historical evidence that the Congress

that enacted § 1326 in 1952 was motivated in part by a desire

to discriminate against Mexicans or other Central and South

motives and intent of the same Congress who enacted Section 1326 only

two months later.” But individual lawmakers’ name for a separate bill

is not sufficient evidence to meet Carrillo-Lopez’s burden of showing

that Congress acted with racial animus when it enacted § 1326. Further,

the district court’s depiction of the act was erroneous. The act provided

that any person who knowingly transports into the United States,

harbors, or conceals a person in the country illegally, or encourages such

a person to enter the United States, is guilty of a felony, and included a

proviso that “employment (including the usual and normal practices

incident to employment) shall not be deemed to constitute harboring.”

Act of Mar. 20, 1952, Pub. L. No. 82-283, 66 Stat. 26 (1952). Based on

the statement of senators in the congressional record, the act was enacted

in connection with negotiations with Mexico to secure an extension of

an existing migratory-labor agreement, because Mexico wanted the

United States to strengthen its immigration laws to restrict migration of

Mexicans to the United States. See 98 Cong. Rec. 791–92, 795 (1952).

The act did not impose criminal penalties on Mexicans or other Central

and South Americans.

14

Thus, the district court erred in indicating that the Ford letter’s

“recommendation” to include a “found in” clause was adopted by

Congress as “the only substantive change made to Section 1326 in

1952.” Rather, the Ford letter merely suggested clarifying language for

the proposed bill’s “found in” clause, and as explained above, the new

§ 1326 made multiple changes to the 1929 Act.

32 UNITED STATES V. CARRILLO-LOPEZ

Americans, Carrillo-Lopez next turns to the legislative

history of a prior immigration law, the 1929 Act. The 1929

Act was one of three statutes that “imposed criminal

penalties upon aliens who reentered the country after

deportation.” Mendoza-Lopez, 481 U.S. at 835. The parties

do not dispute that the 1929 Act was motivated in part by

racial animus against Mexicans and other Central and South

Americans.

Carrillo-Lopez argues that the discriminatory purpose

motivating the 1929 Act tainted the INA and § 1326 because

some of the legislators were the same in 1952 as in 1929. In

particular, Carrillo-Lopez observes that two of the members

of Congress who had participated in enacting the 1929 Act

praised the 1952 Congress for protecting American

homogeneity and keeping “undesirables” away from

American shores. See 98 Cong. Rec. 5774 (1952) (statement

of Sen. George) (stating that the purpose of the 1924

immigration law was to “preserve something of the

homogeneity of the American people”); id. at 4442

(statement of Rep. Jenkins) (stating that the House debate

had “been reminiscent of the days of 20 years ago when the

wishes of the Members was to keep away from our shores

the thousands of undesirables just as it is their wish now”).

Carrillo-Lopez also argues that the fact that the 1952

Congress did not expressly disavow the 1929 Act indicates

that Congress was motivated by the same discriminatory

intent. Finally, Carrillo-Lopez argues that the INA

constituted a reenactment of the 1929 Act. The district court

largely agreed with each of these points.

This interpretation of the legislative history is clearly

erroneous. The INA was enacted 23 years after the 1929

Act, and was attributable to a legislature with “a

substantially different composition,” in that Congress

UNITED STATES V. CARRILLO-LOPEZ 33

experienced a more than 96 percent turnover of its personnel

in the intervening years. Brnovich, 141 S. Ct. at 2349 n.22

(citation omitted). The statements of Representative

Thomas Jenkins and Senator Walter George, which in any

event were made in the context of debating the national-

origin quota system rather than in discussing § 1326, are not

probative of the intent of the legislature as a whole. O’Brien,

391 U.S. at 384; see also League of Women Voters of Fla.

Inc., 66 F.4th at 931–32, 939.

Further, the Supreme Court has rejected the argument

that a new enactment can be deemed to be tainted by the

discriminatory intent motivating a prior act unless legislators

expressly disavow the prior act’s racism. See Abbott, 138 S.

Ct. at 2325–26. Contrary to Carrillo-Lopez and the district

court’s reasoning, a legislature has no duty “to purge its

predecessor’s allegedly discriminatory intent.” Id. at 2326.15

The district court suggested that it “might be persuaded that

15

Further weakening the claim that § 1326, in its current form, was

motivated by discriminatory animus, is the fact that § 1326 has been

amended multiple times since its enactment. See Pub. L. No. 100-690,

§ 7345, 102 Stat. 4181, 4471 (1988); Pub. L. No. 101-649, § 543, 104

Stat. 4978, 5059 (1990); Pub. L. No. 103-322, § 130001(b), 108 Stat.

1796, 2023 (1994); Pub. L. No. 104-132, § 441(a), 110 Stat. 1214, 1279

(1996); Pub. L. No. 104-208, §§ 305(b), 308(d)(4)(J), (e)(1)(K), (14)(A),

324(a), (b), 110 Stat. 3009, 3009-606, 3009-618 to 3009-620, 3009-629

(1996). Carrillo-Lopez does not allege that each successive Congress

was motivated by discriminatory purpose. The district court recognized

that § 1326 had been amended four times after its enactment. But based

on its mistaken belief that a subsequent legislature must disavow an

earlier body’s discriminatory intent, the district court focused on

Congress’s failure to provide such a disavowal in enacting the

amendments, and thus failed to recognize that “by amendment, a facially

neutral provision . . . might overcome its odious origin.” Barcenas-

Rumualdo, 53 F.4th at 866 (citation omitted).

34 UNITED STATES V. CARRILLO-LOPEZ

the 1952 Congress’ silence alone is evidence of a failure to

repudiate a racially discriminatory taint,” but stopped short

of reaching this issue, and such a ruling would be contrary

to Supreme Court precedent. Therefore, the evidence of the

discriminatory motivation for the 1929 Act lacks probative

value for determining the motivation of the legislature that

enacted the INA. See, e.g., id. at 2325–26; Dumas, 64 F.3d

at 1430 (examining the legislative debates of the crack

cocaine criminal legislation at issue in 1986, not the

legislative debates from the first law criminalizing cocaine

in 1914).

Finally, the INA was not a “reenactment” of the 1929

Act, but rather a broad reformulation of the nation’s

immigration laws, which included a recommendation “that

the time ha[d] come to erase from our statute books any

discrimination against a person desiring to immigrate to this

country or to become a naturalized citizen, if such

discrimination [was] based solely on race.” Senate Report,

at 710. Section 1326 itself incorporated provisions from

three acts and made substantial revisions and additions, H.R.

5678, 82d Cong., 2d Sess., § 276 (Apr. 28, 1952); see supra

pp. 25–26 & n.9; see also Mendoza-Lopez, 481 U.S. at 835–

36. The district court therefore clearly erred in stating that

§ 1326 was not “substantially different” from the 1929 Act.

2

In addition to the legislative history, Carrillo-Lopez

argues that § 1326’s disproportionate impact on Mexicans

and other Central and South Americans is evidence that

Congress was motivated by a discriminatory intent in

enacting the statute. Evidence that legislation had a

disproportionate impact on an identifiable group is generally

not adequate to show a discriminatory motive, and here, the

UNITED STATES V. CARRILLO-LOPEZ 35

evidence that § 1326 had a disparate impact on Mexicans and

other Central and South Americans—and that Congress

knew of this impact and enacted § 1326 because of the

impact—is highly attenuated.

Carrillo-Lopez does not provide direct evidence of the

impact of § 1326 on Mexicans and other Central and South

Americans in the years following the 1952 enactment of the

INA. Rather, Carrillo-Lopez points to evidence that

Mexicans were apprehended at the border and subject to

immigration laws. He first points to the Senate Report’s

statements (in a subsection on problems with deportation

procedures) that “[i]n 1946 and 1947 the percentages of

voluntary departures were 90 percent and 94 percent

Mexicans, respectively,” Senate Report, at 633, and that

“[d]eportations and voluntary departures to Canada were

very small, since approximately 90 percent of the cases were

Mexicans,” id. at 635 (footnote omitted). In the same vein,

the district court stated that the 1952 Congress knew that

§ 1326 would “disparately impact Mexican[s]” and other

Central and South Americans because the Senate Report

discussed “difficulties encountered in getting prosecutions

and convictions, especially in the Mexican border area.”

While these statements indicate that Mexicans and other

Central and South Americans were apprehended at the

border and deported when they entered illegally, and that

there was a lack of enforcement of immigration laws at the

Mexican border area, the statements do not show that a

statute criminalizing illegal reentry disproportionately

impacted Mexicans and other Central and South

Americans.16

16

Carrillo-Lopez and the district court rely on a declaration by UCLA

Professor Kelly Lytle Hernandez, which states that in the late 1930s,

36 UNITED STATES V. CARRILLO-LOPEZ

Carrillo-Lopez also provides information about the

current impact of § 1326. Before the district court, Carrillo-

Lopez provided statistics regarding border apprehensions

from 2000 to 2010, which showed that the majority of

persons apprehended at the border during that period were

of Mexican descent, and argued that the Department of

Justice had a policy of prosecuting apprehensions. On

appeal, Carrillo-Lopez cites additional information from the

United States Sentencing Commission in 2020 for the

proposition that 99% of prosecutions for illegal reentry are

against Mexican or Central and South American

defendants.17 He also argues that in 2018, the Department

of Justice’s policy was to prosecute “100% of southern

before the enactment of the INA, “the U.S. Bureau of Prisons reported

that Mexicans never comprised less than 84.6 percent of all imprisoned

immigrants” and that “[s]ome years, Mexicans comprised 99 percent of

immigration offenders.” The declaration concludes that “[t]herefore, by

the end of the 1930s, tens of thousands of Mexicans had been arrested,

charged, prosecuted, and imprisoned for unlawfully entering the United

States.” But the declaration does not provide a source for its statements

or conclusion, or any basis for the conclusion that Mexicans had been

imprisoned for illegal reentry, and so provides little support for Carrillo-

Lopez’s claims.

17

This statistic comes from two United States Sentencing Commission

“Quick Facts” sheets, which state “99.1% of illegal reentry offenders

were Hispanic” in fiscal year 2020, and “99.0% of illegal reentry

offenders were Hispanic” in fiscal year 2019. U.S. Sent’g Comm’n,

Quick Facts: Illegal Reentry Offenses, Fiscal Year 2020, at 1 (May

2021), https://www.ussc.gov/sites/default/files/pdf/research-and-

publications/quick-facts/Illegal_Reentry_FY20.pdf; U.S. Sent’g

Comm’n, Quick Facts: Illegal Reentry Offenses, Fiscal Year 2019, at 1

(May 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-

publications/quick-facts/Illegal_Reentry_FY19.pdf.

UNITED STATES V. CARRILLO-LOPEZ 37

border crossings.”18 This data has little probative value,

however, because it relates to a period that is more than 45

years after the INA was enacted. After such a long passage

of time, this information does not raise the inference that

Congress enacted § 1326 in 1952 because of its impact on

Mexicans and other Central and South Americans. See, e.g.,

McCleskey, 481 U.S. at 298 n.20; Johnson, 405 F.3d at 1222

n.17. The district court’s reliance on this contemporaneous

data was clearly erroneous.

But even if Carrillo-Lopez had provided direct evidence

that § 1326 had a disproportionate impact on Mexicans and

other Central and South Americans in the years following

the enactment of the INA, he would still not carry his burden

of showing that Congress enacted § 1326 because of its

impact on this group, because the clear geographic reason

for disproportionate impact on Mexicans and other Central

and South Americans undermines any inference of

discriminatory motive. “The United States’ border with

Mexico extends for 1,900 miles, and every day thousands of

persons . . . enter this country at ports of entry on the

southern border.” Hernandez v. Mesa, 140 S. Ct. 735, 746

(2020). Therefore, it is “common sense . . . that it would be

substantially more difficult for an alien removed to China to

return to the United States than for an alien removed to

18

This statement does not appear to be correct, as it refers to a press

release announcing “a new ‘zero-tolerance policy’ for offenses under 8

U.S.C. § 1325(a).” Off. of Pub. Affs., Dep’t of Just., Attorney General

Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6,

2018), https://www.justice.gov/opa/pr/attorney-general-announces-

zero-tolerance-policy-criminal-illegal-entry. Section 1325 relates to

improper entry by an alien. The press release does not indicate a policy

of prosecuting “100% of southern border crossings,” as Carrillo-Lopez

contends.

38 UNITED STATES V. CARRILLO-LOPEZ

Mexico to do so.” United States v. Arenas-Ortiz, 339 F.3d

1066, 1070 (9th Cir. 2003). The Court has explained that

“because Latinos make up a large share of the unauthorized

alien population,” Regents, 140 S. Ct. at 1915, “virtually any

generally applicable immigration policy could be challenged

on equal protection grounds” if disproportionate impact

were sufficient to state a claim, id. at 1916. Therefore, the

claim that a law has a “disparate impact . . . on Latinos from

Mexico” is not “sufficient to state” a “plausible equal

protection claim.” Id. at 1915–16. Applied here, the fact

that § 1326, which criminalizes reentry, has a greater impact

on the individuals who share a border with the United States,

and “make up a large share of the unauthorized alien

population,” id. at 1915, than those who do not, does not

prove that penalizing such individuals was a purpose of this

legislation.19 The district court clearly erred when it relied

on the evidence of disproportionate impact without further

evidence demonstrating that racial animus was a motivating

factor in the passage of the INA.

19

The district court stated it was “unpersuaded by the government’s

argument that geography explains [§ 1326’s] disparate impact” because

a group can raise an equal protection challenge against legislation that

has a disproportionate impact on a racial group even when “‘geography’

might arguably explain the disparity.” To the extent the district court

meant that a group may succeed on such a claim merely because the

challenged legislation “bears more heavily on” one race than another, it

was incorrect. The Supreme Court has made clear that a group may raise

an equal protection claim only if a discriminatory purpose was a

motivating factor for the legislation, see Arlington Heights, 429 U.S. at

265, and evidence that a disproportionate impact was not “because of” a

discriminatory purpose may defeat the claim, Feeney, 442 U.S. at 279.

UNITED STATES V. CARRILLO-LOPEZ 39

3

We hold that the district court clearly erred in its finding

that Congress’s enactment of § 1326 was motivated in part

by the purpose of discriminating against Mexicans or other

Central and South Americans. The strong “presumption of

good faith” on the part of the 1952 Congress is central to our

analysis. Miller, 515 U.S. at 916. Rather than applying this

presumption, the district court construed evidence in a light

unfavorable to Congress, including finding that evidence

unrelated to § 1326 indicated that Congress enacted § 1326

due to discriminatory animus against Mexicans and other

Central and South Americans. The district court also erred

in finding that Congress’s failure “to repudiate the racial

animus clearly present in 1929” was indicative of Congress’s

discriminatory motive in enacting the INA.

We conclude that Carrillo-Lopez did not meet his burden

to prove that Congress enacted § 1326 because of

discriminatory animus against Mexicans or other Central

and South Americans. “This conclusion ends the

constitutional inquiry,” Arlington Heights, 429 U.S. at 267,

and we reject Carrillo-Lopez’s equal protection claim. In

reaching this conclusion, we join the Fifth Circuit, which in

a case raising substantially identical arguments and relying

on the same evidence, held that the evidence was

“insufficient to establish that Congress enacted § 1326 with

racial animus.” Barcenas-Rumualdo, 53 F.4th at 866–67.

REVERSED AND REMANDED.