United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge
matter before the Court is Defendant's Renewal of Motion
for Judgment of Acquittal under Fed. R. Crim. P. 29. (ECF No.
March 7, 2017, Defendant was charged by information with
being a deported alien found in the United States in
violation of 8 U.S.C. §1326(a) and (b).
November 14, 2017, trial commenced. At trial, Defendant
presented evidence that his father became a naturalized
citizen before he turned eighteen. Defendant argued to the
jury that the Government failed to prove alienage because he
was a derivative citizen.
time of the jury instructions, Defendant proposed an
instruction to the jury that stated:
A child born outside the United States to non-citizen parents
automatically becomes a United States citizen if, before he
reaches the age of eighteen, all of the following event
1. One of the child's parents is a United States citizen,
whether by birth or naturalization;
2. The child becomes a lawful permanent resident;
3. The child is in the legal and physical custody of the
United States citizen parent.
A person who meets the above criteria is automatically a
citizen of the Unite States regardless of whether a
certificate of citizenship has been issued.
Unless the government proves that all three of the above
events did not occur, you must find Mr. Mayea not
guilty of illegal reentry.
(ECF No. 45 at 11).
Government opposed the Defendant's instruction on the
grounds that 8 U.S.C. § 1432(a) governing derivative
citizenship at the time the Defendant turned 18 years old
provided that a child was automatically a citizen only if
both parents naturalized, or if the parents were legally
separated or divorced and the child was living in the
physical and legal custody of the naturalized parent.
Defendant asserted that it was not necessary for his mother
to have naturalized because 8 U.S.C. § 1432 governing
derivative citizenship to a child born prior to February 27,
1983 is unconstitutional.
Court instructed the jury:
Derivative citizenship is United States citizenship
automatically conveyed to a child born outside the United
States, through a United States citizen parent or parents, if