and Submitted July 10, 2019 Pasadena, California
from the United States District Court for the Southern
District of California, Nos. 3:18-cr-07021-WQH-1,
3:17-cr-00560-WQH-1 William Q. Hayes, District Judge,
Hartzler (argued), Assistant Federal Public Defender, Federal
Defenders of San Diego, Inc., San Diego, California, for
R. Rehe (argued), Assistant United States Attorney; Helen H.
Hong, Assistant United States Attorney, Chief, Appellate
Section, Criminal Division; Robert S. Brewer, Jr., United
States Attorney; United States Attorney's Office; San
Diego, California; for Plaintiff-Appellee.
Before: Milan D. Smith, Jr. and Michelle T. Friedland,
Circuit Judges, and Stanley A. Bastian, [*] District Judge.
panel affirmed a conviction for illegal reentry by a
previously deported alien in violation of 8 U.S.C. §
1326, and the revocation of supervised release, in a case in
which the defendant argued that, by making his parents'
marital status a factor in the determination of derivative
citizenship, 8 U.S.C. § 1432(a) (1996) violates the
Constitution's equal protection guarantee.
defendant's equal protection challenge focused on the
difference between 8 U.S.C. § 1432(a)(1), which allows
the child of parents who are not legally separated to derive
citizenship only upon the naturalization of both parents, and
the first clause of 8 U.S.C. § 1432(a)(3), which allows
the child of legally separated parents to derive citizenship
upon the naturalization of one parent if that parent has sole
legal custody. The defendant argued that this statutory
scheme impermissibly discriminates on the basis of parental
marital status by allowing the children of legally separated
parents to become U.S. citizens more easily than the children
of non-separated parents. He argued that he should have
automatically become a United States citizen as a result of
the naturalization of one of his parents prior to the reentry
in question, and that, as a result, he is not an
"alien" who could be guilty of violating §
v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003), rejected a
similar equal protection challenge to § 1432(a). The
defendant argued that Sessions v. Morales-Santana,
137 S.Ct. 1678 (2017), which held that a statutory scheme
that imposed different requirements on unwed mothers and
unwed fathers for conferring citizenship upon the birth of a
child abroad denied equal protection, effectively overruled
panel agreed with the defendant that
Barthelemy's justification for applying rational
basis review-that immigration statutes must always be given
deference and thus reviewed only for rationality-is clearly
irreconcilable with Morales-Santana, which left open
the possibility that a court may apply heightened scrutiny to
a citizenship provision if there is otherwise a basis to do
so. The panel held that for reasons separate and apart from
those relied on in Barthelemy, rational basis review
applies to § 1432(a)'s classifications of children
based on their parents' marital status at a time after
their birth or on a parent's custody status over them.
§ 1432(a) for a rational basis, the panel wrote that it
remains bound by the holding in Barthelemy that the
statute survives that deferential standard; and that even if
it were not bound by Barthelemy, it would conclude
that § 1432(a) is rational because protecting the
parental rights of the non-citizen parent is plainly a
legitimate legislative purpose.
Mayea-Pulido challenges his conviction for illegal reentry,
which he contends is invalid because he is not an
"alien" who could be guilty of that crime. Mayea
argues that he should have automatically become a United
States citizen as a result of the naturalization of one of
his parents prior to the reentry in question. But because his
parents were married, and the derivative citizenship statute
at 8 U.S.C. § 1432(a) (1996) required married parents to
both naturalize to confer citizenship to their
child, he did not become a citizen. Mayea argues that, by
making his parents' marital status a factor in the
derivative citizenship determination, § 1432(a) violates
the Constitution's equal protection guarantee. We
previously upheld the statute's constitutionality in
Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir.
2003), but Mayea contends that the Supreme Court's recent
decision in Sessions v. Morales-Santana, 137 S.Ct.
1678 (2017), compels a different conclusion. We disagree and
affirm Mayea's conviction.
Mayea-Pulido was born in 1978 in Mexico to two unmarried
non-U.S. citizens. Mayea and his parents moved to the United
States a few months after his birth, and his parents married
in 1981. By the time Mayea was eight years old, his father
was a naturalized U.S. citizen. Mayea eventually became a
lawful permanent resident, but he never applied for
citizenship. Mayea's mother, who remained married to his
father, also never applied for citizenship.
time Mayea turned eighteen, 8 U.S.C. § 1432
(1996) governed whether a lawful permanent
resident under the age of eighteen and born abroad to
non-U.S.-citizen parents could derive U.S. citizenship from
the subsequent naturalization of one or both parents.
Id. § 1432(a). As a general rule, a child
lawfully residing in the United States automatically became a
citizen if both of his or her parents naturalized before his
or her eighteenth birthday. Id. § 1432(a)(1).
were three exceptions to this general rule. First, if the
parents had married and then legally separated, only the
parent "having legal custody of the child"-which we
have interpreted to mean sole legal custody-needed to
naturalize for the child to derive citizenship. Id.
§ 1432(a)(3); see United States v. Casasola,
670 F.3d 1023, 1030-31 (9th Cir. 2012) (holding that
"legal custody" in the context of § 1432(a)(3)
means sole legal custody). Second, if one parent was
deceased, the naturalization of the surviving parent alone
conferred citizenship. 8 U.S.C. § 1432(a)(2). Third, if
"the child was born out of wedlock and the paternity of
the child ha[d] not been established by legitimation,"
the mother's naturalization alone sufficed to confer
citizenship. Id. § 1432(a)(3).
did not derive citizenship under § 1432(a). The general
rule in § 1432(a)(1) did not apply to him because only
one of his parents had naturalized before his eighteenth
birthday. Nor did any of the three exceptions apply to him.
He therefore remained a non-citizen.
the years following his eighteenth birthday, Mayea was
convicted of several crimes. In 2003, the Government revoked
his lawful permanent resident status and deported him. He
illegally reentered the United States and was deported nine
more times before reentering in 2008. In 2010, Mayea was
apprehended by immigration officers and eventually pleaded
guilty in 2015 to illegal reentry in violation of 8 U.S.C.
§ 1326, which criminalizes reentry by "any alien
who . . . has been denied admission, excluded, deported, or
removed" pursuant to a removal order. After his release
from custody, he was placed on supervised release and
deported again, but soon returned to the United States. In
2017, immigration agents again detained Mayea and charged him
with illegal reentry for the second time. The case proceeded
to trial in the U.S. District Court for the Southern District
found Mayea guilty. Mayea moved for judgment of acquittal,
arguing that § 1432 was unconstitutional as applied to
him. He argued that under § 1432(a), he would have
derived citizenship through his father alone had his parents
been legally separated, but that he did not because they
remained married. Mayea contended that this disparity showed
that the statute discriminated on the basis of parental
marital status in violation of the constitutional guarantee
of equal protection. He urged the court to remedy this
purported constitutional defect by allowing him to
retroactively derive citizenship solely from his father's
naturalization. As a citizen, he would not be an
"alien" who could be convicted of illegal reentry.
district court rejected Mayea's argument and denied
acquittal, sentencing him to 65 months in prison and three
years of supervised release. Because this new conviction for
illegal reentry violated the terms of Mayea's supervised
release for his 2015 conviction, the district court also
revoked that supervised release term and added eight months
of imprisonment to his new sentence. Mayea timely appealed.
On appeal, he continues to press his argument that §
1432(a) denies equal protection.
review de novo both a district court's denial of a motion
for judgment of acquittal and its determinations regarding
the constitutionality of a statute. United States v.
Jinian, 725 F.3d 954, 959 (9th Cir. 2013); United
States v. Zakharov, 468 F.3d 1171, 1176 (9th Cir. 2006).
determine the standard of review applicable to an equal
protection challenge to a statutory classification, we ask
whether the classification implicates a protected
class.Dent v. Sessions, 900 F.3d 1075,
1081 (9th Cir. 2018), cert. denied, 139 S.Ct. 1472
(2019). If it does, we apply some form of heightened
scrutiny, requiring the government to satisfy a more exacting
burden for the classification to pass constitutional muster.
Clark v. Jeter, 486 U.S. 456, 461 (1988). If it does
not, and if there is no other reason to apply heightened
scrutiny,  we must uphold the classification "if