Is Criminal Reentry Law Unconstitutional?

November 29, 2021

IRLI shows Ninth Circuit why it should uphold this important statute

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals in defense of a federal statute making it a crime for an alien who has previously been deported to reenter the United States unlawfully. A federal district judge in Nevada had held that this law violated the equal protection of the law guaranteed in the Constitution.

The district court’s argument was creative. Because, in 1929, when an earlier criminal reentry statute was being debated, a few members of Congress said that it should pass because it would deter illegal immigration from Latin America, the court concluded that today’s different criminal reentry law was motivated by discriminatory animus. The court declared illegal aliens from Latin America a protected class, and imputed the discriminatory motives supposedly actuating Congress in 1929 to much later Congresses, even though no member of those Congresses gave any indication of having such motives.

In its brief on appeal, IRLI cites case after case showing that imputing motives to Congress based on the alleged motives of a much earlier Congress is improper. IRLI also shows that groups of illegal aliens, defined geographically or otherwise, are not protected classes under the Equal Protection Clause any more than illegal aliens in general are such a class. IRLI also shows that the reason for the criminal reentry law is, indeed, to deter illegal immigration—from Latin America or anywhere else—and that this non-discriminatory purpose is the true reason it was passed.

“It’s no surprise that the criminal reentry law is applied often to illegal aliens from Latin America, since such a large proportion of illegal aliens come from there,” said Dale L. Wilcox, executive director and general counsel of IRLI. “To conclude that the law was designed to discriminate against Latin American illegal aliens is absurd. It applies equally to all illegal aliens, wherever they are from, and was designed to deter illegal immigration from any and all countries. We hope the Ninth Circuit sees through this politically-motivated assault on a necessary law, and roundly reverses the district court.”

The case is United States v. Carrillo-Lopez, No. 21-10233 (Ninth Circuit).