FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 18-50223 Plaintiff-Appellee, 18-50224 v. D.C. Nos. 3:18-cr-07021-WQH-1 LUIS RICARDO MAYEA- 3:17-cr-00560-WQH-1 PULIDO, AKA Luis Ricardo Pulido, OPINION Defendant-Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Argued and Submitted July 10, 2019 Pasadena, California Filed January 3, 2020 Before: Milan D. Smith, Jr. and Michelle T. Friedland, Circuit Judges, and Stanley A. Bastian, * District Judge. Opinion by Judge Friedland * The Honorable Stanley A. Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. 2 UNITED STATES V. MAYEA-PULIDO 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). ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MAYEA-PULIDO 3 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 ...
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