NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-2618 _____________

UNITED STATES OF AMERICA

v.

GILBERTO ARANA WENCE, Appellant ______________

On Appeal from the District Court of the Virgin Islands District Court No. 3:20-cr-00027-001 The Honorable Robert A. Molloy, Chief District Judge ______________

Argued May 24, 2023 ______________

Before: RESTREPO, McKEE, and SMITH Circuit Judges

(Opinion filed: September 6, 2023)

Scott A.C. Meisler, Esq. [ARGUED] United States Department of Justice Appellate Section 950 Pennsylvania Avenue NW Washington, DC 20530

Adam Sleeper, Esq. Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802 Counsel for Appellee Matthew A. Campbell, Esq. Office of Federal Public Defender 1336 Beltjen Road Suite 202, Tunick Building St. Thomas, VI 00802

Erwin Chemerinsky, Esq. [ARGUED] University of California at Berkeley School of Law 215 Boalt Hall Berkeley, CA 94720 Counsel for Appellant

Michele A. McKenzie, Esq. McKenzie Scott 1350 Columbia Street Suite 600 San Diego, CA 92101

Philip L. Torrey, Esq. Harvard Law School 6 Everett Street Suite 3106 Cambridge, MA 02138

Yaman Salahi, Esq. Edelson 150 California Street 18th Floor San Francisco, CA 94111

Max S. Wolson, Esq. National Immigration Law Center P.O. Box 34573 Washington, DC 20043

Khaled Alrabe, Esq. National Immigration Project of National Lawyers Guild 2201 Wisconsin Avenue NW Suite 200 Washington, DC 20007

2 Alexia Korberg, Esq. Paul McCusker, Esq. Paul Weiss Rifkind Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019

Amanda Valerio-Esene Paul Weiss Rifkind Wharton & Garrison 2001 K Street NW Washington, DC 20006 Counsel for Amicus Appellants

_______________________

OPINION ∗ _______________________

McKEE, Circuit Judge.

Appellant Gilberto Arana Wence was indicted for illegally reentering the United

States following a prior removal, in violation of

(a). He moved to dismiss

the indictment on the ground that Section 1326 violates the Fifth Amendment’s equal

protection guarantee and is therefore facially invalid. After the District Court dismissed

Wence’s motion, he filed this appeal. For the reasons that follow, we will affirm.

I. 1

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 This Court has jurisdiction under

. The district court had jurisdiction under

and

.

3 We review challenges to the constitutionality of a criminal statute de novo.2 We

apply a clear error standard, however, to the District Court’s factual findings, which “are

not subject to plenary review simply because they are material to constitutional

analyses.” 3

II. Gilberto Arana Wence, a citizen of Mexico, relied upon Village of Arlington

Heights v. Metropolitan Housing Development Corporation, 4 to argue his conviction for

illegal reentry in violation of

(a), is unconstitutional because it violates

the Equal Protection Clause of the Fifth Amendment. In moving to dismiss the indictment

on those grounds, Wence contended that Section 1326 was enacted with the intent to

discriminate against Mexican citizens and has consequently disparately impacted

Mexican and Latin American nationals. The District Court disagreed and dismissed

Wence’s motion.

III.

Just days before we heard argument in this case, the Court of Appeals for the

Ninth Circuit thoroughly addressed the identical issue in United States v. Carrillo-

Lopez. 5 There, Mexican national Gustavo Carrillo-Lopez moved to dismiss his

indictment under Section 1326 on the ground that the statute violated the Equal

2 United States v. Hoffert,

(3d Cir. 2020). 3 United States v. Menendez,

(3d Cir. 2016) (citing Bose Corp. v. Consumers Union of U.S., Inc.,

(1984)). 4

(1977). 5 68 F.4th at 1133 (9th Cir. 2023).

4 Protection Clause of the Fifth Amendment. 6 Concluding that Carrillo-Lopez had not

established that the Section 1326 was enacted with discriminatory intent towards

Mexicans and other Latin Americans, the Court reversed the District Court’s dismissal of

the indictment. We substantially agree with the reasoning and analysis of the Ninth

Circuit. 7

Before reaching its conclusion, the Ninth Circuit analyzed the applicable standard

of review. The government argued, as it does here, that the Arlington Heights framework

was inapplicable to Section 1326 because courts should defer to the political branches on

immigration matters. 8 Noting that the Supreme Court has not directly addressed which

standard of review applies to equal protection challenges to immigration laws, the Ninth

Circuit decided that it need not answer this question because Carrillo-Lopez’s equal

protection challenge failed even under the less deferential Arlington Heights test. 9

6 Id. at 1137. 7 In agreeing with the Ninth Circuit, we are neither insensitive to the forceful arguments tying Section 1326 to racist objectives, nor do we turn a blind eye to the extent to which racism’s pernicious tentacles have maintained an unrelenting grip on this country’s history and lawmaking. We do not, therefore, lightly dismiss the Carrillo-Lopez District Court’s thoughtful historical analysis of Section 1326. See U.S. v. Carrillo-Lopez,

1009–19 (D. Nev. 2021). However, for the reasons set forth by the Court of Appeals, which we briefly summarize here, we are persuaded that, despite the nation’s racist history, Wence has not satisfied his burden of establishing that the racist stain of the original enactment of the challenged provision continued to taint Section 1326, after it was reenacted in 1952. 8 68 F.4th at 1141–43. 9

. In Village of Arlington Heights v. Metropolitan Housing Development Corporation, the Supreme Court examined whether the Village’s denial of a rezoning application (to go from single-family to multi-family housing) violated the Fourteenth Amendment. Although the Court ultimately held that it did not, it also recognized that an equal protection claim exists when a facially neutral law or policy is motivated by

5 The Ninth Circuit, concluding that Section 1326 is facially neutral as to race, then

examined the statute under this test. 10 It began with an examination of the history of

Section 1326, which was enacted as part of Immigration and Nationality Act in 1952. 11

The Court considered (1) a 1950 U.S. Senate Report analyzing the state of pre-INA

immigration law, (2) President Harry Truman’s veto of the INA, and (3) the Department

of Justice’s use of the derogatory term “wetback” in a letter commenting on the INA. 12

The Court determined that the Senate Report offered no evidence of discriminatory intent

against Latin Americans because it merely provided factual information about Mexican

and Latin American immigrants, along with all other “races and peoples.” 13 It further

discriminatory intent and has a racially discriminatory impact. To assert such a claim, “[p]roof of racially discriminatory intent or purpose is required.”

. But discrimination need not be the sole intent, just “a motivating factor in the decision.”

at 265–66. The Court outlined a series of factors that could serve as evidence of discriminatory intent. Disparate impact on one race could “provide an important starting point.”

. “Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action.”

If the pattern is not stark, “impact alone is not determinative, and the Court must look to other evidence.”

Other sources of evidence include “the historical background of the decision … particularly if it reveals a series of official actions taken for invidious purposes.”

. Courts should look to the “specific sequence of events leading up to the challenged decision [which] also may shed some light on the decisionmaker’s purposes.”

“Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.”

Finally, the Court advised that “legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports.”

. These factors, the Court asserted, were not exhaustive but were “subjects of proper inquiry in determining whether racially discriminatory intent existed.”

10

. 11

at 1143–51. 12

13

.

6 noted that President Truman’s veto was motivated by his opposition to the INA’s

national-origin quota system, so it shed no light on Congress’s intent in enacting Section

1326, an unrelated provision.14 Finally, the Court held that the Justice Department’s use

of an offensive term did not provide insight into Congress’s intent. 15

The Ninth Circuit also considered Carrillo-Lopez’s argument that Section 1326

has disparately impacted Mexican and Latin American immigrants. 16 The Court held that

Carrillo-Lopez failed to provide direct evidence of disparate impact, and even if he had,

he still could not carry his burden because there was a clear geographic reason for any

disproportionate impact. 17 That is, Latin Americans re-enter in greater numbers because

they are geographically closer to the U.S. border than other immigrants. 18

Finally, the Court emphasized that the 1952 Congress was entitled to a “strong

‘presumption of good faith.’” 19 Given that presumption—and the less-than-conclusive

historical considerations and disparate impact evidence—the Ninth Circuit held that

Carrillo-Lopez had not satisfied his burden of proving that Congress enacted Section

1326 with discriminatory animus against Mexican and Latin American immigrants. 20

14

15

. 16

at 1151–53. 17

. 18

19

(citing Miller v. Johnson,

(1995)). 20 Id. at 1154.

7 We face substantially identical questions and arguments here as the Ninth Circuit

in U.S. v. Carrillo-Lopez. 21 Finding our sister Circuit’s reasoning thorough and

persuasive, we adopt it here. We also agree that, because Wence’s claim fails under

Arlington Heights, we need not decide which standard of review applies to equal

protection challenges to immigration laws.

IV.

For the reasons described above, we therefore will affirm the District Court.

21 We note that this appeal was argued forcefully and exceptionally well by the same two attorneys—Dean Erwin Chemerinsky for Appellant and Scott A.C. Meisler for Appellee—who argued before the Ninth Circuit in Carrillo-Lopez.

8