Equal protection challenge to 8 USC § 1326 (unlawfully reentering the United States after prior removals); The Undesirable Aliens Act; The Immigration & Nationality Act (INA); Whether § 1326 violated the Fifth Amendment’s Due Process Clause; Whether defendant could establish “a disparate impact”; Whether defendant showed that “a discriminatory purpose was a motivating factor for its enactment”; Village of Arlington Hts v Metropolitan Hous Dev Corp

[This appeal was from the ED-MI.] Joining several other circuits in rejecting constitutional challenges to § 1326 (unlawfully reentering the country after prior removals), the court held that § 1326 does not violate the equal-protection guarantee of the Fifth Amendment. The district court denied defendant-Myrie’s motion to dismiss his indictment for violating § 1326 on the baiis the statute “violates the equal-protection guarantee of the Fifth Amendment by discriminating against Mexican and other Latino immigrants.” He alleged that the statute’s predecessor—the Undesirable Aliens Act of 1929—was enacted with discriminatory intent, and that § 1326, first codified as part of the INA of 1952, was simply a “recodification” of the 1929 Act. The court noted that eight of its sister circuits had considered and rejected similar constitutional challenges to § 1326. As a facially neutral statute, § 1326 would only violate “the Fifth Amendment if it produces a disparate impact and if a discriminatory purpose was a motivating factor for its enactment.” Myrie offered no supporting evidence for his theory that § 1326 was merely a recodification of the 1929 Act—“no historic background, no sequence of events leading up to the passage of §1326, no departures from normal procedural sequence, no substantive departures, and no legislative or administrative history.” The court rejected his reasoning that Congress is required to “expressly disavow racism when it reenacts a prior law that was shown or assumed to be racist in origin and enforcement.” It noted that “the Supreme Court has specifically held that a future legislature has no ‘duty to purge its predecessor’s allegedly discriminatory intent.’” It also noted that even “if § 1326 has a disparate impact on ‘Mexicans and other Latinos,’ that is not sufficient to state a plausible equal-protection claim.” Affirmed.