United States of America v. Eduviges Ayala-Bello

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUVIGES A YALA-BELLO,
Defendant-Appellant.
No. 19-50366
D.C. No.
3:19-cr-00735-
AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
W ALTER GERMAN VELEZ -
GONZALEZ ,
Defendant-Appellant.
No. 19-50368
D.C. No.
3:19-cr-00735-
AJB-2
OPINION
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted December 10, 2020
Pasadena, California
Filed April 26, 2021

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2 UNITED STATES V. AYALA-BELLO
Before: Paul J. Watford, Amul R. Thapar,* and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Thapar;
Concurrence by Judge Watford
SUMMARY**
Criminal Law
The panel affirmed two defendants’ convictions,
following a bench trial, for attempting to enter the United
States illegally in violation of 8 U.S.C. § 1325(a)(1).
The defendants argued that the government violated their
right to equal protection by prosecuting them for first-time
illegal entry, a petty offense, on the normal criminal docket
rather than through the federal courts’ Central Violations
Bureau (CVB) process under which defendants charged with
petty offenses generally receive lighter punishment.
The panel held that the government does not violate
equal protection by prosecuting illegal border crossings on
the normal criminal docket.
The panel held that the policy here does not discriminate
against a protected class or infringe a fundamental right. The
* The Honorable Amul R. Thapar, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. AYALA-BELLO 3
panel wrote that the defendants give no evidence to refute
the government’s position that it makes docketing
assignments based solely on the charged offense, which is
not impermissible discrimination. And even if the
defendants had shown that the government makes docketing
assignments based on the defendant’s citizenship status, at
most the rational basis test would apply because federal
classifications based on alienage receive rational basis
review.
Applying the rational basis test, the panel concluded that
the government’s decision to prosecute first-time illegal
entry separately from other petty offenses passes
constitutional muster. The panel saw at least two rational
bases: that the government has a legitimate interest in
controlling our borders, and that the government has a
legitimate interest in managing its prosecutorial resources.
The panel concluded that the defendants did not carry their
burden to negate every conceivable basis which might
support the government’s decision to prosecute them on the
normal criminal docket.
Concurring in the judgment, Judge Watford agreed that
the government did not violate the defendants’ equal
protection rights by prosecuting them for illegal entry on the
regular criminal docket rather than through the CVB
process, but in his view, the government’s actions are
justified solely because of the particular characteristics of the
class of offenders at issue and the particular features of these
two different criminal processes. He agreed that rational
basis review applies here, but disagreed with the majority’s
suggestion that the government may treat citizens and non-
citizens differently merely because they have been charged
with different offenses. He also questioned the majority’s
position that, unlike state laws, all federal laws that classify

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4 UNITED STATES V. AYALA-BELLO
on the basis of alienage are exempt from heightened
scrutiny.
COUNSEL
Kara Hartzler (argued), Federal Defenders of San Diego
Inc., San Diego, California; Keith Rutman, San Diego,
California; for Defendants-Appellants.
David Chu (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Robert S. Brewer Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
OPINION
THAPAR, Circuit Judge:
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.
I.
A.
When the federal government suspects a person has
committed a crime, law enforcement typically makes an

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UNITED STATES V. AYALA-BELLO 5
arrest and brings the suspect before a magistrate judge for an
initial appearance and a bail determination. See Fed. R.
Crim. P. 5(a); 18 U.S.C. § 3142(a). If charges have not
already been filed before the arrest, a federal prosecutor
reviews the evidence and decides whether to press charges.
For misdemeanors that may involve more than six months
imprisonment, the prosecutor may either bring charges by
filing a criminal information or complaint, or by asking a
grand jury to return an indictment. See Fed. R. Crim. P.
58(b)(1). Once charges are filed and bail is set (if any), the
case follows its normal course.
But there are other paths through the federal criminal
justice system. Some entail favorable procedures for the
defendant and often result in lighter punishment. For
instance, when a person is suspected of committing a “petty
offense”—an infraction or a misdemeanor involving six
months or less of imprisonment—the government
sometimes issues a citation instead of making an arrest. See
18 U.S.C. §§ 19, 3559(a)(7)–(9). The citation is then
forwarded to the federal courts’ Central Violations Bureau
(CVB) for processing. Weeks later, the defendant receives
a notice to appear by mail. And when the defendant comes
to court, the government often negotiates an alternative
resolution of the charges. Typical offenses prosecuted
through the CVB process include shoplifting, driving
without a license, and parking in a fire lane (when these
offenses occur on federal property).
B.
Eduviges Ayala-Bello and Walter Velez-Gonzales left
Mexico and crossed the United States border illegally.
When an electronic sensor notified border patrol agents, they
located Ayala and Velez by tracking their shoeprints. The
agents arrested the pair, and both admitted to illegal entry.

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6 UNITED STATES V. AYALA-BELLO
At their arraignment, the magistrate judge set bail at $1,000,
which Ayala and Velez posted eight days later.
The government charged Ayala and Velez with
attempting to enter the United States illegally. See 8 U.S.C.
§ 1325(a)(1). It was their first time being charged with that
offense. And while first-time illegal entry is defined as a
petty offense, the government prosecuted Ayala and Velez
on the normal criminal docket. See id.; 18 U.S.C. § 3559(7).
Ayala and Velez moved to dismiss the charges, arguing
that the government should have prosecuted them through
the CVB process. The district court denied their motion,
found them guilty at a bench trial, and sentenced them to
time served. Ayala and Velez appealed.
II.
On appeal, Ayala and Velez argue that the government
violated their right to equal protection by prosecuting them
on the normal criminal docket.1 We disagree.
A.
The Fourteenth Amendment forbids a state from denying
“any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Although the
Fourteenth Amendment applies by its terms to state
governments, the Supreme Court has extended the equal
1 As we have previously noted, the Southern District of California’s
treatment of illegal entry differs in some respects from other offenses
prosecuted on the normal criminal docket. See United States v. Chavez-
Diaz, 949 F.3d 1202, 1204–05 (9th Cir. 2020). Ayala and Velez do not
challenge that aspect of their prosecutions. Instead, they challenge only
the government’s failure to process their cases as CVB violations.

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UNITED STATES V. AYALA-BELLO 7
protection guarantee to bind the federal government too. See
Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954).
In simple terms, the right to equal protection ensures that
everyone in a jurisdiction lives under the same laws. But
“[o]f course, most laws differentiate in some fashion
between classes of persons” without violating that right.
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). Consider an
example. Congress may decide to punish tax cheats more
severely than minor drug offenders. And that decision
satisfies equal protection so long as it furthers a legitimate
government interest. See id. (describing rational basis
review). The Constitution requires closer scrutiny only if the
government’s policy discriminates against a protected class
or infringes on a fundamental right. Id.; see also United
States v. Armstrong, 517 U.S. 456, 464–65 (1996).
B.
The policy here does not discriminate against a protected
class or infringe a fundamental right. Instead, it
distinguishes between defendants based on their criminal
conduct—in this case, illegally entering the United States.
And since criminal defendants are not a protected class, at
most the rational basis test applies.2 See, e.g., United States
v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007)
(reviewing for rational basis a sentencing guideline that
2 Because we find that the rational basis test is satisfied here, we
need not decide whether the government’s policy should instead be
deemed to be unreviewable. Cf. Armstrong, 517 U.S. at 464–65 (absent
reliance on “an unjustifiable standard such as race, religion, or other
arbitrary classification,” a prosecutorial decision “generally rests entirely
in [the prosecutor’s] discretion” (citations omitted)).

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8 UNITED STATES V. AYALA-BELLO
“punish[es] illegal reentrants more severely than other felons
with the same prior criminal record”).
Ayala and Velez disagree. In asking for heightened
scrutiny, they say the government prosecutes all other petty
offenses through the CVB process. So the choice to
prosecute first-time illegal entry on the normal docket
discriminates against aliens. After all, only aliens can
commit the crime of “[i]mproper entry by [an] alien.” See
8 U.S.C. § 1325.
Ayala and Velez’s argument falls short. Let’s assume
they are correct that first-time illegal entry is the only petty
offense prosecuted on the normal criminal docket. All that
shows is that the government treats a particular criminal
offense differently from other offenses. That is not
impermissible discrimination. At best, the government’s
policy has a disparate impact on aliens, since only aliens can
be charged with illegal entry. But disparate impact does not
prove disparate treatment. See Wayte v. United States,
470 U.S. 598, 610 (1985). To show alienage as a factor
driving the government’s policy, Ayala and Velez might
have offered evidence that citizens and noncitizens charged
with the same offense are treated differently. Yet despite
offering pages of data on the government’s docketing
assignments, they do not identify a single instance in which
an alien and a citizen committed the same offense but were
prosecuted on different dockets. In short, Ayala and Velez
give no evidence to refute the government’s position that it
makes docketing assignments based solely on the charged
offense.
But even if Ayala and Velez had shown that the
government makes docketing assignments based on the
defendant’s citizenship status, we would still review the
government’s policy, at most, under the rational basis test.

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UNITED STATES V. AYALA-BELLO 9
Federal classifications based on alienage receive rational
basis review. Sudomir v. McMahon, 767 F.2d 1456, 1464
(9th Cir. 1985) (citing Mathews v. Diaz, 426 U.S. 67, 83
(1976)). True, courts must apply heightened scrutiny to state
policies that distinguish based on alienage. Graham v.
Richardson, 403 U.S. 365, 372 (1971). But as the Supreme
Court has explained, state policies based on alienage
“involve[] significantly different considerations” than
federal policies. Diaz, 426 U.S. at 84. Immigration is a
federal matter. So while a state-run program that treats
aliens differently from citizens might raise an eyebrow, “a
comparable classification by the Federal Government is a
routine and normally legitimate part of its business.” Id.
at 85; see also United States v. Barajas-Guillen, 632 F.2d
749, 751 (9th Cir. 1980). The policy at issue is federal, so at
most the rational basis test would apply to docketing
assignments based on alienage.
C.
Having settled on the appropriate standard of review, we
conclude that the government’s decision to prosecute first-
time illegal entry separately from other petty offenses passes
constitutional muster.
Under the rational basis test, a federal policy survives an
equal protection challenge “if there is a rational relationship
between the disparity of treatment and some legitimate
governmental purpose.” Heller v. Doe by Doe, 509 U.S.
312, 320 (1993). The government doesn’t have to articulate
the purpose of its policy or the reasons for its classifications.
Instead, the party raising an equal protection challenge must
negate “every conceivable basis which might support it.”
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)
(citation omitted).

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10 UNITED STATES V. AYALA-BELLO
Ayala and Velez haven’t carried that burden. We see at
least two rational bases for the government’s decision to
prosecute first-time illegal entry differently from other petty
offenses. First, the federal government has a legitimate
interest in controlling our borders. Shaughnessy v. Mezei,
345 U.S. 206, 210 (1953). 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.
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. See
Wayte, 470 U.S. at 607. 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. See id. at 608–10.
For these reasons, the government could reasonably
conclude that the CVB process is a bad fit for illegal entry.

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UNITED STATES V. AYALA-BELLO 11
And the government does not act irrationally by prosecuting
illegal entry on the normal docket.3
III.
Ayala and Velez have not carried their burden to negate
“every conceivable basis” which might support the
government’s decision to prosecute them on the normal
criminal docket. Beach Commc’ns, 508 U.S. at 315. The
government’s policy is supported by a rational basis and
does not violate equal protection.
We AFFIRM.
WATFORD, Circuit Judge, concurring in the judgment:
I agree with my colleagues that the government did not
violate the defendants’ equal protection rights by
prosecuting them for illegal entry on the regular criminal
docket rather than through the streamlined Central
Violations Bureau (CVB) process. In my view, however, the
government’s actions are justified in this case solely because
3 In arguing that the government lacks a rational basis for
prosecuting them on the normal docket, Ayala and Velez offer a single
year’s worth of data showing that defendants charged with illegal entry
are more likely to appear for their court dates than CVB defendants. But
under rational basis review, governmental choice “is not subject to
courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S.
at 315. In any event, these statistics suggest that the government’s
decision to prosecute illegal entrants on the normal criminal docket
improves court attendance. Although Ayala and Velez read the statistics
differently, the government is entitled to favorable inferences under the
rational basis test.

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12 UNITED STATES V. AYALA-BELLO
of the particular characteristics of the class of offenders at
issue and the particular features of these two different
criminal processes. In another case, the government could
well violate the equal protection guarantee by targeting
subgroups of criminal defendants based on their alienage.
Like my colleagues, I will assume that the defendants are
right in asserting that the government prosecutes all petty
offenders through the CVB process, with the exception of
those charged with illegal entry under 8 U.S.C. § 1325.
Rational basis review is nonetheless justified because illegal
entry defendants, as a class, are not similarly situated to other
petty offenders. See Cleburne v. Cleburne Living Center,
473 U.S. 432, 439 (1985). Those charged with illegal entry
are less likely to have a permanent mailing address or
records on file with government agencies. And they face
different considerations as to whether to appear for court
proceedings than citizens do, given the potential
immigration consequences of a criminal prosecution.
These unique characteristics of illegal entry defendants
not only justify the application of rational basis review, but
also supply a rational basis for the government’s charging
policy. A key difference between the CVB process and the
regular criminal docket is that CVB defendants are given a
citation, released, and sent a court summons later, as
opposed to being arrested and detained or released on bond.
Because illegal entry defendants often lack a reliable mailing
address, it would be more difficult to send them a court
summons. And because they have additional reasons to
avoid showing up in court, it may be more challenging to
secure their appearance without the coercive restraint of
detention or release on bond. Thus, prosecuting illegal entry
defendants on the regular criminal docket is rationally
related to the government’s legitimate interest in ensuring

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UNITED STATES V. AYALA-BELLO 13
that those charged with illegal entry appear for court
proceedings. See Cleburne, 473 U.S. at 440.
While I agree that rational basis review applies here, I
disagree with the majority’s suggestion that the government
may treat citizens and non-citizens differently merely
because they have been charged with different offenses. If
there are no meaningful differences between the severity of
the two offenses, and the two groups are similarly situated in
all ways that might pertain to the differential treatment, the
government engages in discrimination on the basis of
alienage, even if the two groups are technically being
prosecuted for different crimes. Were it otherwise, the
government could freely discriminate against non-citizens
simply by creating two separate criminal offenses—one for
citizens, one for non-citizens—encompassing offenders who
have engaged in the same unlawful behavior.
I also question the majority’s fallback position that,
unlike state laws, all federal laws that classify on the basis of
alienage are exempt from heightened scrutiny. It is true that
in Mathews v. Diaz, 426 U.S. 67 (1976), the Supreme Court
suggested that a lower tier of scrutiny applies to federal
distinctions between citizens and non-citizens, given the
federal government’s “broad power over naturalization and
immigration.” Id. at 79–80, 84–85. But that case concerned
non-citizens’ eligibility for Medicare benefits, not the
process they are afforded as part of a criminal prosecution.
In other cases, the Court has placed limitations on the federal
government’s broad authority over immigration when
criminal penalties are implicated. See, e.g., United States v.
Mendoza-Lopez, 481 U.S. 828, 837–38 (1987). Given that
the Court has never held that federal criminal classifications
based on alienage are subject only to rational basis review, I

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14 UNITED STATES V. AYALA-BELLO
would not rely on that rationale, especially since it is not
necessary to the application of rational basis review here.

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