In United States v. Ayala-Bello, --- F.3d ---, No. 19-50366 (9th Cir. 2021), the Court affirmed misdemeanor convictions for attempting to enter the United States illegally in violation of 8 U.S.C. § 1325(a)(1).
Section 1325 creates, among other crimes, a misdemeanor, petty offense for illegal entry into the United States. The USAO for the Southern District of California prosecutes these offenses on the normal criminal docket.However, it prosecutes all other petty offenses through the federal courts’ Central Violations Bureau (CVB) process, under which defendants charged with petty offenses generally receive lighter punishment.
On appeal, Ayala-Bello argued the disparate treatment violated equal protection. The Court disagreed. Applying rational-basis review, the Court concluded that the government’s decision to prosecute first-time illegal entry separately from other petty offenses passes constitutional muster.
Judge Watford concurred to state his view that, "[i]n another case, the government could well violate the equal protection guarantee by targeting subgroups of criminal defendants based on their alienage."
One other point to consider: Although the defendants here did not prevail, in my opinion, this case illustrates the importance of having robust, creative, and zealous federal public defender offices.
This case was briefed and argued by Kara Hartzler at FDSDI. Time and again, FDs throughout the country push issues on cases that might otherwise go overlooked. Our system, and everyone in it, benefits from their advocacy. As Judge Berzon wrote in United States v. Brown, 785 F.3d 1337, 1348 n.5 (9th Cir. 2015), “federal public defenders . . . typically provide the highest quality representation[.]"
