FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDUVIGES AYALA-BELLO,

Defendant-Appellant.

No. 19-50366

D.C. No.

3:19-cr-00735-

AJB-1 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALTER GERMAN VELEZGONZALEZ,

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
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.
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 noncitizens 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 
4 UNITED STATES V. AYALA-BELLO

on the basis of alienage are exempt from heightened 

scrutiny.

COUNSEL

Karen 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 PlaintiffAppellee.

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 
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. 
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. ChavezDiaz, 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.
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)).
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. 
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 firsttime 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).
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. 
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.
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 
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 
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.