The original law criminalizing illegal reentry under 8 U.S.C. 1326 grew out of a disturbing time in history marked by the rise of eugenics, the Ku Klux Klan, and deeply nativist sentiments. See, e.g., Webinar: The Racist Origins of Illegal Reentry (and how to Challenge Them in Your Practice) (Oct. 15, 2020), by AFDs Kara Hartzler and Nora Hirozawa, available on the password protected side of fd.org here.
Today, in United States v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev. Aug. 18, 2021) (ECF No. 60), a United States District Judge in Nevada entered an order, available here, granting a defendant's motion to dismiss his § 1326 indictment on the grounds that § 1326 violates the equal protection gurantee of the Fifth Amendment under the standard articulated in Village of Arlington Heights v. Metropolitan Housing Devlopment Corp, 429 U.S. 252 (1977).
The defendant, Gustavo Carrillo-Lopez, was indicted on one count of deported alien found in the U.S. in violation of 8 U.S.C. § 1326(a) & (b). Mr. Carrillo-Lopez filed a motion to dismiss his indictment, arguing that because the facts and historical evidence presented show that the original illegal reentry law was enacted with a discriminatory purpose and still has a disparate impact, § 1326 is presumptively unconstitutional under Arlington Heights. After briefing and hearings, the district court agreed with the defense. In granting the motion to dismiss, the District Court found that Mr. "Carrillo-Lopez has demonstrated that Section 1326 disparately impacts Latinx people and that the statute was motivated, at least in part, by discriminatory intent." The District Court also considered whether the government had shown that § 1326 would have been enacted absent discriminatory intent, and concluded that the government failed to so demonstrate. As a result, the Court held that "Section 1326 violates the Equal Protection Clause of the Fifth Amendment."