United States v. Casasola
670 F.3d 1023
9th Cir.2012Background
- Suchite, a Guatemalan citizen, challenges his removal under 8 U.S.C. §1326 by arguing he derived U.S. citizenship when his father naturalized in 1997, under the derivative citizenship rule then in §1432(a).
- §1432(a) required both parents to naturalize (married parents) or custody-related exceptions; the law in 1997 did not grant Suchite citizenship because his mother did not naturalize before his eighteenth birthday.
- The Child Citizenship Act (CCA) of 2000 amended derivative citizenship in §1431(a) to allow automatic derivative citizenship upon the naturalization of one parent, but only for those who were under eighteen and in the citizen parent’s custody at naturalization.
- Suchite was born in 1983; his father naturalized in 1997 when Suchite was 14, but his mother remained non-citizen and married to his father through his eighteenth birthday.
- Suchite was removed in 2005, returned, and re-arrested in 2009; he pled guilty to illegal reentry, challenging the derivative citizenship basis and raising equal protection and retroactivity concerns.
- The district court denied dismissal, sentencing followed with a Guideline recency adjustment that Amendment 742 later eliminated, leading to an appeal raising both citizenship and sentencing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1432(a)'s married-vs-separated parental rule violate equal protection? | Suchite argues the distinction is irrational and discriminates against children of married parents. | The government contends the distinction serves a rational purpose to protect custodial non-citizen parents. | Statute upheld; §1432(a) has a rational basis and Thusite cannot derive citizenship under the old rule. |
| Does §1432(a)'s requirement use of 'legal custody' include joint custody, making Suchite eligible? | Suchite urges joint custody should satisfy §1432(a)(3). | The term 'legal custody' means sole legal custody; joint custody cannot satisfy it. | 'Legal custody' means sole legal custody; rejecting joint-custody interpretation aligns with Bustamante-Barrera. |
| Does the INA/CCA interaction render §1432(a) unconstitutional or retroactive to Suchite? | CCA changes derivative citizenship rules; argues equal protection and retroactivity concerns. | INA controls derivation pre-18; CCA does not retroactively apply to Suchite. | INA governs; CCA not retroactive for Suchite’s situation; §1432(a) controls. |
| Should the sentence be remanded for Amendment 742 retroactivity in sentencing? | Amendment 742 should be applied retroactively to adjust criminal history. | Amendment 742 not retroactive; district court sentence valid. | Amendment 742 not retroactive; uphold sentence. |
Key Cases Cited
- Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003) (equal-protection rational basis for derivative-citizenship distinctions)
- Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006) (holds sole legal custody required for §1432(a)(3))
- Urena v. United States, 659 F.3d 903 (9th Cir. 2011) (addressed retroactivity of sentencing amendments)
- In re Puertas, No. A036-324-203, 2010 WL 4500862 (BIA (unpublished)) (BIA interpretations not given deference when contrary to statute)
- Bustamante-Barrera, 447 F.3d 388 (5th Cir. 2006) (cites controlling interpretation of 'legal custody' as sole custody)