                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50347

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-01291-LAB-1
 v.

JULIAN MADERO-DIAZ,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                          Submitted February 12, 2019**
                              Pasadena, California

Before: D.W. NELSON and CALLAHAN, Circuit Judges, and KORMAN,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
      Julian Madero-Diaz, a citizen of Mexico, appeals his conviction, following a

bench trial, for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      “We review questions regarding the constitutionality of a statute de novo.”

See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).

      Madero sets forth an equal protection challenge under the Fifth

Amendment’s Due Process Clause to 8 U.S.C. § 1326 in light of Sessions v.

Morales-Santana, — U.S. — , 137 S. Ct. 1678 (2017). Madero’s challenge is

purely facial; he does not claim that either of his parents were United States

citizens or that he was denied derivative citizenship due to the gender-based

distinction held invalid in Morales-Santana.

      In Morales-Santana, the Supreme Court held that “[t]he gender-based

distinction infecting §§ 1401(a)(7) and 1409(a) and (c) . . . violates the equal

protection principle” implicit in the Fifth Amendment’s Due Process Clause.

Morales-Santana, 137 S. Ct. at 1700–01. Rather than striking the entire statute, the

Supreme Court struck down only the one-year physical-presence exception for

unwed U.S.-citizen mothers and held that, going forward, § 1401(a)(7)’s five-year

requirement for unwed U.S.-citizen fathers “should apply, prospectively, to

children born to unwed U.S.-citizen mothers.” Id. at 1701. In removing the

exception for unwed mothers, the Supreme Court chose the course that it believed


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Congress would have taken in amending the statute. See id. at 1700–01. Madero’s

facial equal protection challenge rests solely upon the gender-based distinction in

§§ 1401(a)(7) and 1409(a) and (c) held invalid by Morales-Santana.

      Pursuant to the severability clause in the Immigration and Nationality Act

(“INA”), the remainder of §§ 1401 and 1409, which provides other methods for

determining citizenship and for imposing penalties for illegal entry into the United

States, was not affected or declared unconstitutional by Morales-Santana. See 8

U.S.C. § 1101 note (“If any provision of this title . . . is held invalid, the remainder

of the title . . . shall not be affected thereby.”); see also I.N.S. v. Chadha, 462 U.S.

919, 931–32 (1993) (declaring the veto clause of 8 U.S.C. § 1254(c)(2)

unconstitutional, but holding that the severability clause in 8 U.S.C. § 1101

“plainly authorized the presumption” that the remainder of the INA stands). Thus,

Madero was not “convicted under a law classifying on an impermissible basis.” Cf.

Morales-Santana, 137 S. Ct. at 1699 n.24.

      Our rejection of Madero’s constitutional challenge is consistent with district

court decisions addressing this claim. See United States v. Valdivia-Munoz, No. 18-

mj-20433-RNB-H-1, 2018 WL 5311742 (S.D. Cal. Oct. 26, 2018); United States v.

Ayun-Flores, No. 16cr1115-BEN, 2017 WL 4391701 (Oct. 2, 2017); United States

v. Hernandez-Gamez, No. 17cr917-BEN, 2017 WL 4125079 (S.D. Cal. Sept. 18,

2017).


                                            3
AFFIRMED.




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