Whether agency policies that distinguish on the basis of citizenship automatically receive rational-basis-review

QUESTION PRESENTED Along the U.S./Mexico border, the Department of Justice has criminally prosecuted thousands of noncitizens for illegal entry, a petty offense that carries a maximum sentence of six months. But during their prosecutions, the DOJ treats these individuals differently than U.S. citizens charged with similarly-serious crimes. Citizens receive citations, are not arrested, and often obtain an alternative resolution. Noncitizens are arrested, incarcerated, and offered no option other than a conviction and jail time. Ms. Ayala-Bello and Mr. Velez-Gonzalez challenged this agency policy on equal protection grounds, arguing that strict scrutiny applies to disparate treatment on the basis of alienage. While their case was pending, the Eleventh Circuit relied on this Court’s decision in Hampton v. Wong, 426 U.S. 88 (1976), to hold that rational basis does not necessarily apply to citizenship-based distinctions created by agencies, rather than by the President or Congress. Six days later the Ninth Circuit disagreed, holding that any federal policy that treats citizens and noncitizens differently receives rational basis review. The question presented is: Whether agency policies that distinguish on the basis of citizenship automatically receive rational basis review. prefix PARTIES,