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United States v. Mayea-Pulido

United States Court of Appeals, Ninth Circuit

January 3, 2020

United States Of America, Plaintiff-Appellee,
v.
Luis Ricardo Mayea-Pulido, AKA Luis Ricardo Pulido, Defendant-Appellant.

          Argued and Submitted July 10, 2019 Pasadena, California

          Appeal 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, Presiding

          Kara Hartzler (argued), Assistant Federal Public Defender, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

          Mark 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.

         SUMMARY [**]

         Criminal Law/Immigration

         The 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.

         The 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 § 1326.

         Barthelemy 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 Barthelemy.

         The 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.

         Reviewing § 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.

          OPINION

          FRIEDLAND, JUDGE:

         Luis 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.

         I.

         Luis 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.

         At the time Mayea turned eighteen, 8 U.S.C. § 1432 (1996)[1] 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).

         There 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).

         Mayea 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.

         Over 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 of California.

         A jury 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.

         The 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.

         II.

         We 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).

         To determine the standard of review applicable to an equal protection challenge to a statutory classification, we ask whether the classification implicates a protected class.[2]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, [3] we must uphold the classification "if ...


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