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United States v. Mayea-Pulido

United States District Court, S.D. California

March 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS MAYEA-PULIDO, Defendant.

          ORDER

          WILLIAM Q. HAYES United States District Judge

         The matter before the Court is Defendant's Renewal of Motion for Judgment of Acquittal under Fed. R. Crim. P. 29. (ECF No. 58).

         BACKGROUND FACTS

         On 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).

         On 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.

         At the 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 occur;
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).

         The Government opposed the Defendant's instruction on the grounds that 8 U.S.C. § 1432(a)[1] 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.

         The 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 ...

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