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Ninth Circuit:
Equal Protection Not Denied Those Charged With Illegal Entry
Contention Rejected That It Is a Constitutional Affront to Try Persons Charged With Crossing Border Unlawfully On Normal Criminal Docket Rather Than Through a Simplified Process Used for Other Minor Offenses
By a MetNews Staff Writer
Two men who were apprehended attempting to sneak into the United States were not denied equal protection by virtue of being tried on the District Court’s regular criminal docket rather than through a process used for other petty offenses, generally with lesser sentences meted out, the Ninth U.S. Circuit Court of Appeals held yesterday.
Neither defendant—Eduviges Ayala-Bello and Walter German Velez-Gonzalez—actually received harsher sentencing by virtue of the docketing of his case. Both were found guilty by District Court Judge Anthony J. Battaglia of the Southern District of California, on Nov. 27, 2019, on one count of unlawful first-time entry by an alien, a misdemeanor; each was sentenced to time served in pre-trial custody, with a $10 penalty remitted and a fine waived.
Sixth U.S. Circuit Court of Appeals Judge Amul R. Thapar, sitting by designation, wrote the majority opinion, in which Ninth Circuit Judge Daniel P. Collins joined. Ninth Circuit Judge Paul J. Watford authored a concurring opinion.
Tharper’s Opinion
Thapar said:
“Some federal district courts have a separate process for resolving minor criminal offenses. These defendants generally receive lighter punishment. And in exchange, the government avoids the costs of a full-blown criminal prosecution. The question before us is whether the government violates equal protection by prosecuting illegal border crossings on the normal criminal docket. We hold that it does not.”
He noted that offenses handled through the Central Violations Bureau (“CVB”) include shoplifting or driving without a license on federal property. Persons accused of such offenses are mailed a notice to appear, Tharper said.
The visiting jurist recited that an equal protection challenge fails if the government shows a rational basis for differing treatment, except where a higher level of scrutiny is required based on individuals being in a protected class or a fundamental right is implicated. There is no basis under the present circumstance for heightened scrutiny, he declared.
Two Rational Bases
Tharper identified two rational bases for differentiating between those illegally entering the U.S. and persons committing other minor offenses, saying:
“First, the federal government has a legitimate interest in controlling our borders….So when individuals enter the United States illegally, it is not irrational for the government to conclude that detaining them is in the public’s best interest. Plus, as the government points out, releasing illegal entrants once caught would just incentivize more illegal border crossings. Not only that, but it is much harder for the government to keep track of illegal entrants who are released into the country. And for many of these defendants, a CVB prosecution is simply unworkable because there is nowhere to send a notice to appear. Each of these reasons supports the government’s practice of prosecuting illegal entrants on the normal docket.”
Thapar continued:
“Second, the government has a legitimate interest in managing its prosecutorial resources. Prosecution on the normal docket usually carries more severe consequences for the defendant, but it also costs the government more time and resources. Balancing these costs and consequences is the hallmark of prosecutorial discretion, a constitutional power that lies at the core of the executive branch….To strike that balance, the government can rationally choose to prosecute certain offenses (like illegal entry) more vigorously than others to deter future violations, to protect the public, and to effectuate just punishment. And absent evidence of racial or other arbitrary distinctions, the government is within its rights to do so.”
While agreeing that Ayala-Bello and Velez-Gonzalez were not denied equal protection, Watford said that “[i]n another case, the government could well violate the equal protection guarantee by targeting subgroups of criminal defendants based on their alienage.”
At oral argument on Dec. 10 via Zoom, Kara L. Hartzler of Federal Defenders of San Diego Inc., arguing for the defendants, said:
The question in this case is whether or not non-citizens charged with a petty offense in the Southern District of California can be arrested, chained, shackled and convicted while U.S. citizens charged with petty offenses are not—and the answer is “no.”
Under questioning by Tharper as to whether a non-citizen charged with a petty offense such as speeding in a federal park would be processed through CVB, she said she didn’t know, but acknowledged, “I think it’s possible.”
Collins expressed the view that in a “border district,” there is reasonableness in the view that illegal entry is “a serious problem and there needs to be some level of deterrence.”
Hartzler maintained that “alienage is a protected class” and said that “When discrimination is on the basis of alienage—”
She was interrupted by Collins who said: “It’s on the basis of the offense.”
Arguing for the government was Assistant U.S. David Chu of the Southern District of California. He advised that “generally speaking,” illegal entry is the only minor crime that is not handled through CVB, though there are “pretty rare exceptions.”
Chu said that arresting the suspect and bringing that person before a magistrate for a determination of suitability for release is necessary because in most instances detention is required to assure attendance at trial.
The case is United States v. Ayala-Bello, 19-50366.
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