On Monday, the United States 9th Circuit Court of Appeals ruled in favor of the US Government, reversing a Nevada federal judge’s determination that criminalization of reentry after deportation was based on racist animus against Latinos. If the ruling held, the ability to prosecute for illegal reentry after removal from the US would be revoked in the 10 states subject to the 9th Circuit jurisdiction, including California, Nevada, and Arizona. The appeal was argued in Pasadena, CA, in December of 2022.

In 2021, Judge Miranda Du dismissed charges against Gustavo Carrillo-Lopez because the law violated the 5th Amendment, and was racist in origin. The charges initially brought against Carrillo-Lopez are described below:

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.

During the December hearing, the parties did not disagree that the 1929 Act was racially motivated, but the DOJ argued that the 1952 Immigration and Nationality Act remedied issues with the previous policy and is constitutional. 

Judge Ikuta authored the opinion, siding with the DOJ’s arguments:

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.

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.”

The case is being remanded back to the lower district court. RedState will provide updates on the case as they become available.