US v. Mayea-Pulido, No. 18-50223 (1-3-20)(Friedland w/M. Smith & Bastian). This is an equal protection challenge as to derivative citizenship.  The defendant was convicted of illegal reentry under 1326, but he argued that 8 U.S.C. § 1432(a), by applying different requirements for derivative citizenship depending on the parent’s marital status versus their being legally separated, violated equal protection.

Previously, applying rational basis review, the 9^th had rejected the claim under Barthelemy v. Ashcroft, 329 F.3d 1062 (9^th Cir 2003). However, the Supreme Court in Sessions v. Morales-Santana, 137 S. Ct 1678 (2017), had rejected the categorical assertion that immigration statutes must always be given rational basis review. Heightened scrutiny may be required if the situation—between parents based on gender—required.

Ah, this panel decided, Barthelemy’s blanket use of rational basis may be irreconcilable with Morales-Santana, but that the statute is still given rational basis. The 9^th concluded that heightened scrutiny is not required in all parental distinction cases. Here, rational basis is appropriate because a group or gender or status is not singled out or put in a suspect classification. Legal separation or sole custody does not reflect historical discrimination.  The reason is that Congress acted rationally in distinguishing between requiring both parents to be naturalized for derivative citizenship but only requiring one parent to be naturalized so long as the parents were legally separated, meaning that the naturalized citizen had sole custody. This rational basis is to protect the rights of the non-naturalized parent who may still have custody.

Another valiant hard fought appeal by Kara Hartzler, Fed Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/03/18-50223.pdf