Sunday, January 05, 2020

Case o' The Week: Marriage is a Dangerous Thing - Mayea-Pulido and Equal Protection Challenges to Immigration Statutes

  Defendant guilty, because parents remained married.
United States v. Mayea-Pulido, 2020 WL 35963 (9th Cir. Jan. 3, 2020), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 
  Hard-fought appeal by AFD Kara Hartzler, Fed. Defenders of San Diego, Inc.

Facts: Mayea-Pulido, the son of unmarried Mexican nationals, was born in Mexico. Id. at *2. He and his parents moved to the U.S. shortly after his birth. His parents married, and his father became a naturalized U.S. citizen. 
   Mayea became a lawful permanent resident (“LPR”), but never applied for citizenship. His mother, who remained married to his father, also never applied for citizenship. Id. 
  At the time Mayea-Pulido turned 18, the immigration statute conferred automatic citizenship if both of the child’s parents had previously naturalized. Id. There were exceptions: for example, in the event of separation one naturalized parent sufficed. Mayea did not meet any of these exceptions, and he remained a non-citizen. Id. 
  As he grew older, Mayea-Pulido was convicted of crimes, his LPR status was revoked, and he was removed and reentered multiple times. Ultimately he was charged with a § 1326 offense and went to trial. Id. Mayea-Pulido moved for judgment of acquittal, arguing that the immigration statute was unconstitutional. Id. at *3. He argued that he would have been a citizen if his married parents had been legally separated (where he would have obtained citizenship from his father). Id. 
  His motion was denied, he was convicted, and appealed. Id.

Issue(s): “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 . . . 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.” Id. at *1.
  “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.” Id. at *4. 1

Held:We disagree and affirm Mayea’s conviction.” Id. at *1.

Of Note: The Ninth previously rejected a similar challenge. See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Id. at *4. Why another opinion now? Because AFD Kara Hartzler cleverly renewed the attack after Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). Id. In Morales-Santana, SCOTUS rejected a statutory scheme that imposed different requirements on unwed mothers, and unwed fathers, for conferring citizenship of a child born abroad. Id. at *4. Because the statute differentiated based on gender, the Court applied heightened scrutiny and found an equal protection violation. Id. at *5.
  The Ninth, unfortunately, was unpersuaded: applying rational basis review to this statute, it rejected this equal protection challenge. Id. at *8.

How to Use: In Barthelemy, immigration statutes were given deference and subject to mere rational basis review. In Mayea-Pulido, Judge Friedland agrees that approach now longer flies: immigration statutes can now be subject to heightened scrutiny – a useful opening for future EP challenges. Id. at *5-*6.
For Further Reading: Remember the remarkable “Safe Schoolslitigation? San Francisco has finally agreed to settle civil claims brought by the victims of these race-based arrests, made in San Francisco's Tenderloin. See, San Francisco Settles Suit Over Racially Biased Drug Arrests for $225k, available here
  Interesting that this civil case settles just as waves of Hondurans are now targeted for small-scale drug scales in the new “Federal Initiative for the Tenderloin.” See press release on “FIT” here

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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