The first published criminal case of 2020 is a reminder that Federal Defenders of San Diego continues leading the way in 1326 litigation. Although the case was not a defense win, the argument was novel and compelling.
In United States v. Mayea-Pulido, --- F.3d ---, No. 18-50223 (9th Cir. 2020), the Court affirmed the defendant's conviction for illegal reentry in violation of 8 U.S.C. § 1326.
Here is how the Court framed the issue: "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."
The Court continued: "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."
To make a long story short, the Court found there was no equal protection violation and thus affirmed.
