United States v. Gustavo Carrillo-Lopez

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United States v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026 (D. Nev., filed June 25, 2020); 21-10233 (9th Cir., filed August 20, 2021)

On June 25, 2020, Gustavo Carrillo-Lopez was indicted on one count of being a deported noncitizen present in the United States in violation of 8 U.S.C. § 1326(a) and (b) (Section 1326). On October 19, 2020, Mr. Carrillo-Lopez moved to dismiss his indictment on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In his motion to dismiss, Mr. Carrillo-Lopez argued that because Section 1326 was enacted with a discriminatory purpose and has a disparate impact on Latinx persons, the law is unconstitutional; as such, the Court must dismiss the indictment.

In his briefing, Mr. Carrillo-Lopez presented extensive historical evidence about the racist origins of Section 1326, including how it was first enacted at the height of the eugenics movement and how the “Undesirable Aliens Act of 1929” was conceived, drafted, and enacted by white supremacists out of a belief that the “Mexican race” would destroy the racial purity of the United States and that Mexicans were “poisoning the American citizen.” Although the statute was recodified in 1952, Mr. Carrillo-Lopez argued that the 1952 reenactment did not cleanse Section 1326 of its racist origins and was likewise motivated by discriminatory intent. Moreover, he argued that Section 1326 disproportionally impacts Mexican and Latinx defendants, given that the overwhelming number of Border Patrol arrests along the southern border are of Mexicans or people of Latinx origin.

On January 22, 2021, the Court held oral argument on the motion to dismiss, and on February 2, 2021, the Court held an evidentiary hearing. At the evidentiary hearing, Mr. Carrillo-Lopez presented the testimony of two experts. Professor Kelly Lytle Hernandez, an expert on policing in immigration and criminalization of migration, testified extensively on the racist origins of the 1929 act and that “the illegal re-entry provision of the 1929 law was intended to target Latinos.” Professor Benjamin Gonzalez O’Brien, an expert on political science, immigration policy, race, and public policy, testified to the historical link between the 1929 and 1952 codifications. Following the evidentiary hearing, Mr. Carrillo-Lopez submitted a post-hearing brief outlining for the Court how the 1952 recodification of Section 1326 made illegal reentry penalties even harsher and expanded grounds for deportation, all with the knowledge of the law’s disparate impact and over a presidential veto calling out the bill’s racism. Mr. Carrillo-Lopez explained that the 1952 Congress did not reenact the illegal reentry provision despite its racist origins – it reenacted it because of them. In light of these facts, Mr. Carrillo-Lopez argued he had met his burden under the Arlington Heights test.

On August 18, 2021, the court issued an order granting Mr. Carrillo-Lopez’s motion to dismiss, finding that because Section 1326 was enacted with a discriminatory purpose, the law has a disparate impact on Latinx persons, and that because the government failed to show that Section 1326 would have been enacted absent racial animus, Section 1326 violates the Equal Protection Clause of the Fifth Amendment. As such, the court ordered the United States to dismiss Mr. Carrillo-Lopez’s indictment and release him from federal custody. 

On August 19, 2021, the United States filed a notice of appeal to the Ninth Circuit. The Ninth Circuit heard oral arguments on December 8, 2022, and a decision is still pending.

Documents:

Counsel: Federal Public Defender of Nevada

Contact: Lauren Gorman, Assistant Federal Public Defender | Lauren_Gorman@fd.org

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