U.S. v. Casasola, No. 10-50376 (1-30-12) (Schroeder with Gould and McCuskey, D.J.).

This is a derivative citizenship issue on appeal from a 1326 conviction. The defendant argued that he automatically received derivative U.S. citizenship upon his father's naturalization in 1997, when he was 14. The statute at the time required both parents to naturalize before the defendant's 18th birthday. His mother did not naturalize until he was 21. If the parents were separated, then the father's naturalization would have made the defendant a citizen. There was a distinction then between married and unmarried (the law changed one month after defendant's 18th birthday). The defendant argued that this violated his equal protection. It was not rational. Yes it was, concludes the 9th, on the basis of the argument that this protects the rights of a non-naturalized custodial parent. It also follows 9th precedent in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). The statute also survives another equal protection challenge in that it required the custodial parent, in a separation, to have sole custody. The 9th also declined to remand for resentencing in the wake of the criminal history change to the recency points of a prior conviction. The 9th declines to follow the lead of the 1st Circuit which permitted such a remand. The 9th, under Urena, 659 F.3d at 910, declined to follow the 1st Circuit where the sentence was reasonable and the procedure followed correct. There is now a circuit split on the issue.