                                                                            FILED
                           NOT FOR PUBLICATION                               SEP 15 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50562

              Plaintiff - Appellee,              D.C. No. 3:08-cr-03431-WQH-1

  v.
                                                 MEMORANDUM *
MORGAN GONZALEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                            Submitted October 4, 2010 **
                               Pasadena, California

Before: PREGERSON, D.W. NELSON and IKUTA, Circuit Judges.

       Appellant Morgan Gonzalez (“Gonzalez”) appeals the district court’s order

denying his motion to dismiss the indictment for attempted reentry by a deported




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alien. We have jurisdiction under 28 U.S.C. § 1291 and, finding no error, affirm

the district court’s judgment.

      We reviews “a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment

de novo when the motion is based upon an alleged due process defect in the

underlying deportation proceeding.” United States v. Pallares-Galan, 359 F.3d

1088, 1094 (9th Cir. 2004) (citing United States v. Muro-Inclan, 249 F.3d 1180,

1182 (9th Cir. 2001)). The district court’s factual findings are reviewed for clear

error. United States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir. 2009).

      In the criminal proceedings at the district court, Gonzalez sought to attack

his underlying removal order collaterally pursuant to 8 U.S.C. § 1326(d). To

prevail on a collateral attack of his removal order, Gonzalez must establish (1) that

he exhausted any available administrative remedies available to seek relief from

the removal order, (2) that the deportation proceedings at which the order was

issued improperly deprived him of the opportunity for judicial review, and (3) that

the entry of the removal order was “fundamentally unfair.” 8 U.S.C. § 1326(d). A

removal order is “fundamentally unfair” if (1) a defendant’s due process rights

were violated by defects in the underlying deportation proceedings, and (2) he

suffered prejudice as a result of those defects. United States v. Ubaldo-Figueroa,




                                          2
364 F.3d 1042, 1048 (9th Cir. 2004) (quoting United States v. Zarate-Martinez,

133 F.3d 1194, 1197 (9th Cir. 1998)).

      Gonzalez argued that he met the requirements of a collateral attack under

Section 1326 by showing ineffective assistance of counsel at the removal

proceedings. The district court properly concluded that Gonzalez could not

establish ineffective assistance of counsel.

      “Litigants in removal proceedings have no Sixth Amendment right to

counsel; their counsel can, however, be so ineffective as to deprive them of their

Fifth Amendment right to due process of law.” Nehad v. Mukasey, 535 F.3d 962,

967 (9th Cir. 2008) (citing Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008)).

In this context, ineffective assistance of counsel amounts to a violation of due

process if “‘the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case.’” Id. (quoting Mohammed v.

Gonzales, 400 F.3d 785, 793 (9th Cir. 2005)). The two elements of an ineffective

assistance of counsel claim here are (1) that counsel’s performance was deficient

and (2) that counsel’s deficiency caused prejudice. Id. (citing Mohammed, 400

F.3d at 793-94).

      Gonzalez argues that his counsel in the immigration proceedings was

ineffective because he did not advance a claim of derivative citizenship based upon


                                           3
8 U.S.C. § 1432, which was in effect prior to the Child Citizenship Act of 2000 and

is the statutory provision relevant here. Section 1432(a) provided that a child born

to alien parents outside the United States automatically became a citizen of the

United States if the following conditions were met:

             (1) The naturalization of both parents; or

             (2) The naturalization of the surviving parent if one of
             the parents is deceased; or

             (3) The naturalization of the parent having legal custody
             of the child when there has been a legal separation of the
             parents or the naturalization of the mother if the child
             was born out of wedlock and the paternity of the child
             has not been established by legitimation; and if

             (4) Such naturalization takes place while such child is
             unmarried and under the age of eighteen; and

             (5) Such child is residing in the United States pursuant to
             lawful admission for permanent residence at the time of
             the naturalization of the parent last naturalized under
             clause (1) of this subsection, or the parent naturalized
             under clause (2) or (3) of this subsection, or thereafter
             begins to reside permanently in the United States while
             under the age of eighteen years.

8 U.S.C. § 1432(a). Accordingly, to obtain citizenship under this statute, an

individual must establish one of the first three requirements. Gonzalez fails to do

so.




                                          4
      Gonzalez concedes that neither subsection (a)(1) nor (a)(2) is applicable in

this case. Only Gonzalez’s father is a naturalized citizen, and his mother is not

deceased. Gonzalez urges us to consider his derivative citizenship under

subsection (a)(3), arguing that he should qualify because his father had sole

custody of him at the time of the naturalization. This argument fails. Subsection

(a)(3) provides two avenues for citizenship. The first avenue requires that the

naturalized parent have legal custody of a child when there has been a legal

separation of the parents. Gonzalez may not claim citizenship under this approach

because his parents were not married and therefore could not legally separate.

Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003) (“Based on our

review of the statute and case law, and using the usual meanings of the statutory

terms, we hold that Barthelemy does not enjoy derivative citizenship under the first

clause of [subsection (3)] because his natural parents never married and thus could

not legally separate.”) (emphasis in original) (citations omitted). The second

avenue allows citizenship where only the mother has naturalized, if the child is

born out of wedlock and the paternity of the child has not been established by

legitimation. This approach is foreclosed to Gonzalez for two reasons: his mother

never naturalized and he was legitimated.




                                            5
      Gonzalez argues, nevertheless, that subsection (a)(3) is unconstitutional

because it allows only unwed mothers, not unwed fathers, to pass on citizenship to

their children. Under our decision in Barthelemy, Gonzalez has no equal

protection claim. The Barthelemy court found specifically that subsection (a)(3)

does not discriminate on the basis of sex where a child is legitimated, because in

that case, neither the child’s father nor mother could pass citizenship onto a child

unless both parents naturalized, one parent had died, or the parents legally

separated and the naturalized parent retained legal custody of the child. 329 F.3d

at 1067-68. In this case, it is undisputed that Gonzalez has been legitimated and

thus he cannot sustain a gender-based equal protection claim.1 Gonzalez provides

us with no compelling reason to reconsider Barthelemy.

      Thus, even if Gonzalez’s counsel had argued for derivative citizenship under

Section 1432(a), such a claim would have failed because Gonzalez is categorically

ineligible for citizenship under the statute. Gonzalez therefore fails to prove the

second prong of an ineffective assistance claim, which requires a showing that



      1
         This Court likewise rejected the equal protection argument that the law
impermissibly imposes different “legitimation” standards on unmarried fathers,
finding such an argument to be foreclosed by the Supreme Court’s decision in
Nguyen v. INS, 533 U.S. 53, 62–68 (2001) (finding that the government has an
important interest in requiring the father to prove paternity before citizenship may
attach to his child).

                                           6
counsel’s deficiency caused prejudice. Accordingly, Gonzalez fails to establish the

“fundamentally unfair” prong of a Section 1326 collateral attack because he cannot

show that his due process rights were violated, or that he suffered any prejudice.

The district court properly denied Gonzalez’s motion to dismiss the indictment.

      AFFIRMED.




                                          7
