Victory! Ninth Circuit Upholds Criminal Reentry Law

May 23, 2023

Court agrees with IRLI that law is not discriminatory

WASHINGTON—Yesterday, in a unanimous decision, the Ninth Circuit Court of Appeals reversed a Nevada district court that had found the federal criminal reentry statute—which makes it a crime for previously-deported aliens to reenter the country unlawfully—unconstitutional. The Immigration Reform Law Institute (IRLI) had filed a brief in the Ninth Circuit in defense of this statute.

The district court’s argument had been 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 later Congresses gave any indication of having such motives.

In its brief on appeal, IRLI cited case after case showing that imputing motives to Congress based on the alleged motives of a much earlier Congress is improper. IRLI also showed 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 showed 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.

In its ruling yesterday, the Ninth Circuit agreed with IRLI that imputing discriminatory motives to Congress is improper unless backed up with evidence—of which there was none concerning this statute—and reversed the district court.

“What is most remarkable about this case is not that the Ninth Circuit unanimously upheld the criminal reentry law, but that a federal district court had been willing to perform such clumsy mental gymnastics in order to strike it down,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We are pleased the Ninth Circuit saw through this politically-motivated assault on a necessary law, and roundly rejected it.”

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