The opinion of the court was delivered by: SOTOMAYOR
Defendant, Ni Fa Yi, is charged with hostage taking in violation of 18 U.S.C. § 1203. He allegedly participated in a scheme pursuant to which several Chinese citizens were smuggled into this country and held captive until relatives living in the United States paid ransom to secure their release. Defendant moves to dismiss the claim against him on the grounds that the Hostage Taking Act denies him Equal Protection under the law, and that it was passed in violation of the Tenth Amendment of the United States Constitution.
For the reasons to be discussed, defendant's motion is denied.
Defendant charges that the Hostage Taking Act deprives him of equal protection under the Fifth Amendment of the United States Constitution by impermissibly classifying offenders and victims on the basis of alienage. In relevant part, the Act provides:
(a) Whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained . . . shall be punished by imprisonment for any term of years or for life . . .
(b)(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the government of the United States.
18 U.S.C. § 1203. As a threshold requirement to advancing his Equal Protection claim, defendant must demonstrate that this provision, "either on its face or as applied, results in members of a certain group being treated differently from other persons based on membership in that group." United States v. Pacheco, 902 F. Supp. 469, 471 (S.D.N.Y. 1995). "If it is demonstrated that a cognizable class is treated differently, the court must analyze under the appropriate level of scrutiny whether the distinction made between the groups is justified."
United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995), cert. denied, 116 S. Ct. 794 (1996), and cert. denied, 116 S. Ct. 795 (1996).
As recognized by all four courts to have considered this issue, the Hostage Taking Act "facially discriminates on the basis of alienage." United States v. Yian, 905 F. Supp. 160, 166 (S.D.N.Y. 1995); see also Lopez, 63 F.3d at 1472 (addressing whether the Act treats persons differently on the basis of alienage; "This appellants have established."); Pacheco, 902 F. Supp. at 471 ("Here, the Act treats aliens differently from United States citizens, as, in certain circumstances, particular conduct is criminal only if the perpetrator is an alien."); United States v. Song, 1995 U.S. Dist. LEXIS 18399, 1995 WL 736872, at * 2 (S.D.N.Y. 1995) ("The Act is not facially neutral."). As explained by the Court in Lopez:
If either the alleged offender or the victim is a non-national, the Hostage Taking Act applies; however, if both the alleged offender and the victim(s) are nationals of the United States (and the offense occurred in the United States and each alleged offender is found in the United States) then the Act is inapplicable, unless the alleged offender sought to compel the government of the United States to do or abstain from any act.
63 F.3d at 1471-72. Because the Act is not facially neutral, this Court must determine "(1) the appropriate level of scrutiny and (2) whether the statute is proper under this level of scrutiny." Pacheco, 902 F. Supp. at 471.
All of the courts to have considered Equal Protection challenges to the Hostage Taking Act have concluded that the Act is constitutional so long as its alienage classification "rationally further[s] a legitimate state interest." Song, 1995 U.S. Dist. LEXIS 18399, 1995 WL 736872, at * 3; see also Lopez, 63 F.2d at 1473; Yian, 905 F. Supp. at 167; Pacheco, 902 F. Supp. at 471. Though recognizing that the weight of authority is against him, defendant resists the application of rational basis scrutiny in this matter, arguing instead that alienage is a suspect classification that must be strictly scrutinized by reviewing courts. As the Government points out, however, strict scrutiny has been applied to classifications based on alienage only where state laws have been at issue. See, e.g., Bernal v. Fainter 467 U.S. 216, 219, 81 L. Ed. 2d 175, 104 S. Ct. 2312 (1984) (holding that a state law that discriminates on the basis of alienage can be sustained only if it can withstand strict judicial scrutiny); Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (striking down state restrictions on welfare benefits based upon an alienage classification).
"Federal interests regarding aliens are significantly different than those of the states; immigration and foreign relations are paramount federal concerns." Lopez, 63 F.3d at 1473; see also Yian, 905 F. Supp. at 166 (describing the federal government's unique role "with respect to the regulation of ...