United States v. Mayea-Pulido

Citation946 F.3d 1055
Decision Date03 January 2020
Docket NumberNos. 18-50223,18-50224,s. 18-50223
Parties UNITED STATES of America, Plaintiff-Appellee, v. Luis Ricardo MAYEA-PULIDO, AKA Luis Ricardo Pulido, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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

Mark R. Rehe, 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.

FRIEDLAND, Circuit 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 , ––– U.S. ––––, 137 S. Ct. 1678, 198 L.Ed.2d 150 (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 , ––– U.S. ––––, 139 S. Ct. 1472, 203 L.Ed.2d 692 (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, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). If it does not, and if there is no other reason to apply heightened scrutiny,3 we must uphold the classification "if there is any reasonably conceivable state of facts that could provide a rational basis" for it. FCC v. Beach Commc’ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

III.

Mayea’s equal protection challenge focuses on the difference between § 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 § 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.4

In Mayea’s telling, 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. For the reasons that follow, Mayea’s argument fails.

A.

We rejected a similar equal protection challenge to § 1432(a) in Barthelemy v. Ashcroft , 329 F.3d 1062 (9th Cir. 2003). Barthelemy, the petitioner in that case, was like Mayea the child of a couple that was not legally separated (although Barthelemy’s parents could not have legally separated because they never married in the first place). Id. at 1063–65. Barthelemy’s father had naturalized before Barthelemy turned eighteen; his mother had not. Id. at 1064–65. We held that Barthelemy did not derive citizenship through § 1432(a)(3) "because his natural parents never married and thus could not [have] legally separate[d]." Id. at 1065.

Barthelemy argued that § 1432(a) "unconstitutionally discriminates on the basis of his parents’ former marital status." Id. We evaluated his equal protection challenge under the rational basis standard because we interpreted Fiallo v. Bell , 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977), as precluding application of any more exacting scrutiny. We understood Fiallo to instruct that "Congress has nearly plenary power to establish the qualifications for citizenship." Barthelemy , 329 F.3d at 1065.

Applying rational basis review, we held that the statutory scheme in § 1432(a) had the legitimate objective of "protect[ing] ... parental rights." Id. at 1066. Congress generally required both parents to naturalize, we reasoned, because "[i]f United States citizenship were conferred to a child where one parent naturalized, but the other parent remained an alien, the alien’s parental rights could be effectively extinguished." Id. Consistent with that rationale, Congress exempted from the two-parent-naturalization requirement those children whose non-citizen parent had fewer or no rights to protect: children with a deceased parent, a separated parent without legal custody, or an unknown father. See id.

B.

As a prior decision of our court, Barthelemy is binding unless it is "clearly irreconcilable with the reasoning or theory of intervening higher authority." Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Mayea argues that the Supreme Court’s decision in Sessions v. Morales-Santana , ––– U.S. ––––, 137 S....

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