In United States v. Suquilanda, the Second Circuit (Newman, Lee, and Nathan) affirmed Manuel Antonio Suquilanda’s indictment and conviction for unlawful reentry into the United States, in violation of 8 U.S.C. § 1326, which makes it a crime for non-citizens who have been deported or removed from the United States to reenter the country without prior authorization.    

In so doing, the Court found that the underlying removal order was properly entered by the Immigration Court and rejected Suquilanda’s argument that the “Notice to Appear” (“NTA”) he was issued deprived the Immigration Court of jurisdiction, because even though the NTA omitted the statutorily required date, time, and place of his initial removal hearing, and the regulatorily required address of the Immigration Court at which the NTA would be filed, those deficiencies were cured when the missing information was provided to him in a subsequent notice.

The Court also rejected the constitutional challenge Suquilanda mounted against § 1326, finding that the statute does not violate the Fifth Amendment’s equal protection guarantee by discriminating against Latin Americans.

Background

Suquilanda is a citizen of Ecuador who immigrated to the United States without lawful immigration status as a teenager.  In 2004, he was convicted for rape in the second degree in New York state, prompting the Department of Homeland Security (“DHS”) to initiate removal proceedings against him in Immigration Court. 

The Immigration and Nationality Act (“INA”) provides that any such removal proceedings must be initiated by providing an individual with “written notice” of the proceedings in the form of an NTA.  Congress, in turn, has mandated that an NTA include the “time and place at which the proceedings will be held,” among other hearing information.  8 U.S.C. § 1229(a)(1)(G)(i).  The Attorney General has further elaborated on NTA requirements by way of implementing regulations, which provide that an NTA must also include the “address of the Immigration Court where the service will file” the NTA.  8 C.F.R. § 1003.15(b)(6).

Suquilanda was served with an NTA on March 23, 2005, which omitted the statutorily required date, time, and place of his initial removal hearing and the regulatorily required address of the Immigration Court at which the NTA would be filed.  On March 28, Suquilanda received a notice of hearing that contained the date, time, and place information for his initial hearing, as well as a notice which included the address of the Immigration Court at which his NTA would be filed.

In April 2005, an Immigration Judge issued an order of removal that resulted in Suquilanda’s deportation from the United States the following May.  At some point after his deportation, Suquilanda reentered the United States. 

On April 21, 2021, Suquilanda was indicted for unlawful re-entry pursuant to 8 U.S.C. § 1326, which prohibits individuals from entering the United States after their removal without the consent of the Attorney General.  In Suquilanda’s case, he faced charges with enhanced sentencing penalties because his deportation followed his conviction for an aggravated felony.

Suquilanda moved to dismiss that indictment, which the district court denied.  In turn, Suquilanda pleaded guilty pursuant to a plea agreement that preserved his right to appeal the district court’s denial of his motion.

Opinion

On appeal, Suquilanda argued (i) that his initial removal from the United States was invalid because the NTA he was issued lacked place of hearing and address-of-filing information, thereby depriving the Immigration Court of jurisdiction to enter his removal order; and (ii) that 8 U.S.C. § 1326 is unconstitutional because it discriminates against Latin Americans in violation of the Fifth Amendment.  The panel unanimously rejected those arguments and affirmed the district court’s denial of Suquilanda’s motion to dismiss his indictment.

The panel easily concluded that Suquilanda’s first argument concerning purported NTA infirmities was barred by well-established precedent.  In particular, the panel stressed that the Circuit’s decision in Banegas Gomez, 922 F.3d 101 (2d Cir. 2019), established that an NTA which omitted information as to the date and time of an individual’s hearing did not divest an Immigration Court of jurisdiction when a subsequent notice contained the missing hearing information, thereby curing any deficiency in the NTA, as was the case with Suquilanda’s NTA.  Here, Suquilanda received a subsequent notice with the missing information just a few days later.

Further, while Suquilanda’s challenge to his NTA’s missing address-of-filing information presented a novel issue outside the ambit of Banegas Gomez, the panel nevertheless found that because the address-of-filing requirement flows from the text of DHS regulations—rather than any statutory text promulgated by Congress—it is a non-jurisdictional requirement whose omission had no bearing on the Immigration Court’s jurisdiction.  The panel reached this conclusion despite Suquilanda’s emphasis on the use of the word “jurisdiction,” as seen in the plain language of 8 C.F.R. § 1003.14(a), which states that “jurisdiction vests, and proceedings before an Immigration Judge commence, when [an NTA] is filed with the Immigration Court by the Service,” in support of his argument that the absence of address-of-filing information cannot be cured. 

The panel noted, however, that the reference to “jurisdiction” in the regulations was “regrettable,” as the address-of-filing requirement derives solely form the agency’s regulations and has no nexus to the text of the INA, which conferred broad authority to the Attorney General to issue regulations concerning removal proceedings while omitting any authority to define or limit the Attorney General’s subject matter jurisdiction in connection with such proceedings.  Accordingly, the panel found that an Immigration Court retained jurisdiction over removal proceedings even where an NTA omitted address-of-filing information.  

At bottom, the panel recognized that initial hearing and address-of-filing information are of critical importance to non-citizens faced with removal proceedings, while acknowledging that the statutory and regulatory omissions in the NTA issued to Suquilanda at the time of his removal proceedings were necessarily resolved through the subsequent notice he received containing that information.

The panel next evaluated the merits of Suquilanda’s constitutional challenge arguing that 8 U.S.C. § 1326 violated the Fifth Amendment’s equal protection guarantees because the statute’s predecessor was promulgated with discriminatory intent that was not eliminated by its subsequent reenactment and that it has a disparate impact on Latin Americans.

The panel agreed with Suquilanda that because § 1326 is facially neutral, the question of whether it violates the Fifth Amendment’s implicit guarantee of equal protection under federal law must be assessed using the burden-shifting framework articulated in Vill. Of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).  Under Arlington Heights, a party asserting a constitutional challenge must establish their prima facie case by showing that animus against a protected group was a significant factor motivating the position taken by legislative decisionmakers.  If that burden is satisfied, the burden shifts to the government to show that the legislators would have reached the same decision even if the animus was not considered.  If the government meets that burden, the constitutional challenge necessarily fails even if there is evidence that legislators harbored discriminatory motives. 

In applying Arlington Heights, the panel found that Suquilanda failed to establish his prima facie case because he presented insufficient evidence of discriminatory intent on the part of legislators who reenacted § 1326 as part of the INA in 1952.  The panel so held despite significant evidence that the INA’s predecessor, the Immigration Act of 1929 (“1929 Act”) which first included § 1326, was promulgated by legislators who unequivocally and openly expressed racial animus towards Latin Americans, as acknowledged by most circuits that have assessed the origins of the 1929 Act.   

Despite those “abhorrent origins,” the panel nevertheless felt constrained to find that such animus was not shared by a “sizeable portion” of the 1952 Congress which reenacted § 1326 as part of the INA.  The panel stressed that while the available legislative history demonstrated that some members of the 1952 Congress expressed racial animus in connection with the INA’s passage, in particular two members who were also present in 1929, that evidence was insufficient to find that § 1326 was tainted by racial animus. The panel also noted that Suquilanda’s arguments concerning discriminatory intent were further undercut because there was no indication that Congress acted in bad faith when substantively amending and expanding § 1326 in the years following its reenactment.   

The panel stressed that while it would have been optimal for Congress to acknowledge the 1929 Act’s “tawdry past” when reenacting § 1326, any such acknowledgement is not required by existing Supreme Court precedent and thus § 1326 does not violate the Fifth Amendment. 

Commentary

The panel’s decision in Suquilanda confirms that individuals faced with removal proceedings have limited bases on which to challenge the vesting of jurisdiction with an Immigration Court, particularly when any omissions in an initial NTA are cured by receipt of a subsequent notice containing the missing information, a conclusion reached by several other circuits.  The Suquilanda decision may, however, leave open the possibility for jurisdictional challenges when an individual who receives an NTA which omits the statutorily required date, time, and place of his initial removal hearing—but is not served with any subsequent notice containing that statutorily required information.  Put differently, insofar as the statutory deficiencies of an NTA are not cured, a plaintiff may be able to argue that jurisdiction did not vest with the relevant Immigration Court.  While the procedural rights in immigration hearings fall short of what is required in criminal trials, it is unfair to punish someone for illegal reentry when their initial deportation was not properly ordered in the first place.

The panel’s conclusion on Suquilanda’s constitutional challenge may strike some readers as overly legalistic, particularly as § 1326—which was first enacted as part of the 1929 Act—was not substantively amended when reenacted in 1952.  But, as the panel explained, the discriminatory views of the 1929 Congress were minimally probative of the 1952 Congress’s intent, particularly as the 1952 Congress had a materially different composition and the available Senate Report and Congressional Record did not indicate that racial animus was shared by as sizable portion of the 1952 Congress; that the 1952 Congress’s actions were largely motivated by such animus; or that § 1326’s reenactment was specifically tainted by such animus. 

In other words, had the evidence of racial animus available in 1952 approached the voluminous record available in 1929, the outcome may have been different here.  However, the racism did not “carry forward” from 1929 to 1952.  While that evidentiary burden may seem like a particularly onerous hurdle for plaintiffs challenging the reenactment of statutes originally promulgated with discriminatory intent, unless and until the Supreme Court requires that the reenacting legislature expressly repudiate past discrimination in a statute’s history, it remains the standard.  The judiciary is going to be reluctant to strike down statutes when they are facially neutral, even if their original authors acted out of racial bias.