                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      Nos. 18-50223
           Plaintiff-Appellee,                       18-50224

                  v.                             D.C. Nos.
                                           3:18-cr-07021-WQH-1
 LUIS RICARDO MAYEA-                       3:17-cr-00560-WQH-1
 PULIDO, AKA Luis Ricardo
 Pulido,                                           OPINION
         Defendant-Appellant.

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

              Argued and Submitted July 10, 2019
                     Pasadena, California

                       Filed January 3, 2020

  Before: Milan D. Smith, Jr. and Michelle T. Friedland,
  Circuit Judges, and Stanley A. Bastian, * District Judge.

                   Opinion by Judge Friedland



     *
       The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
2             UNITED STATES V. MAYEA-PULIDO

                          SUMMARY **


                  Criminal Law/Immigration

    The panel affirmed a conviction for illegal reentry by a
previously deported alien in violation of 8 U.S.C. § 1326,
and the revocation of supervised release, in a case in which
the defendant argued that, by making his parents’ marital
status a factor in the determination of derivative citizenship,
8 U.S.C. § 1432(a) (1996) violates the Constitution’s equal
protection guarantee.

    The defendant’s equal protection challenge focused on
the difference between 8 U.S.C. § 1432(a)(1), which allows
the child of parents who are not legally separated to derive
citizenship only upon the naturalization of both parents, and
the first clause of 8 U.S.C. § 1432(a)(3), which allows the
child of legally separated parents to derive citizenship upon
the naturalization of one parent if that parent has sole legal
custody. The defendant argued that this statutory scheme
impermissibly discriminates on the basis of parental marital
status by allowing the children of legally separated parents
to become U.S. citizens more easily than the children of non-
separated parents.       He argued that he should have
automatically become a United States citizen as a result of
the naturalization of one of his parents prior to the reentry in
question, and that, as a result, he is not an “alien” who could
be guilty of violating § 1326.

    Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003),
rejected a similar equal protection challenge to § 1432(a).

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
             UNITED STATES V. MAYEA-PULIDO                      3

The defendant argued that Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017), which held that a statutory scheme
that imposed different requirements on unwed mothers and
unwed fathers for conferring citizenship upon the birth of a
child abroad denied equal protection, effectively overruled
Barthelemy.

    The panel agreed with the defendant that Barthelemy’s
justification for applying rational basis review—that
immigration statutes must always be given deference and
thus reviewed only for rationality—is clearly irreconcilable
with Morales-Santana, which left open the possibility that a
court may apply heightened scrutiny to a citizenship
provision if there is otherwise a basis to do so. The panel
held that for reasons separate and apart from those relied on
in Barthelemy, rational basis review applies to § 1432(a)’s
classifications of children based on their parents’ marital
status at a time after their birth or on a parent’s custody status
over them.

    Reviewing § 1432(a) for a rational basis, the panel wrote
that it remains bound by the holding in Barthelemy that the
statute survives that deferential standard; and that even if it
were not bound by Barthelemy, it would conclude that
§ 1432(a) is rational because protecting the parental rights of
the non-citizen parent is plainly a legitimate legislative
purpose.
4            UNITED STATES V. MAYEA-PULIDO

                         COUNSEL

Kara Hartzler (argued), Assistant Federal Public Defender,
Federal Defenders of San Diego, Inc., San Diego, California,
for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;
Helen H. Hong, Assistant United States Attorney, Chief,
Appellate Section, Criminal Division; Robert S. Brewer, Jr.,
United States Attorney; United States Attorney’s Office; San
Diego, California; for Plaintiff-Appellee.


                          OPINION

FRIEDLAND, Circuit Judge:

    Luis Mayea-Pulido challenges his conviction for illegal
reentry, which he contends is invalid because he is not an
“alien” who could be guilty of that crime. Mayea argues that
he should have automatically become a United States citizen
as a result of the naturalization of one of his parents prior to
the reentry in question. But because his parents were
married, and the derivative citizenship statute at 8 U.S.C.
§ 1432(a) (1996) required married parents to both naturalize
to confer citizenship to their child, he did not become a
citizen. Mayea argues that, by making his parents’ marital
status a factor in the derivative citizenship determination,
§ 1432(a) violates the Constitution’s equal protection
guarantee.        We previously upheld the statute’s
constitutionality in Barthelemy v. Ashcroft, 329 F.3d 1062
(9th Cir. 2003), but Mayea contends that the Supreme
Court’s recent decision in Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017), compels a different conclusion. We
disagree and affirm Mayea’s conviction.
               UNITED STATES V. MAYEA-PULIDO                             5

                                    I.

    Luis Mayea-Pulido was born in 1978 in Mexico to two
unmarried non-U.S. citizens. Mayea and his parents moved
to the United States a few months after his birth, and his
parents married in 1981. By the time Mayea was eight years
old, his father was a naturalized U.S. citizen. Mayea
eventually became a lawful permanent resident, but he never
applied for citizenship. Mayea’s mother, who remained
married to his father, also never applied for citizenship.

    At the time Mayea turned eighteen, 8 U.S.C. § 1432
(1996) 1 governed whether a lawful permanent resident under
the age of eighteen and born abroad to non-U.S.-citizen
parents could derive U.S. citizenship from the subsequent
naturalization of one or both parents. Id. § 1432(a). As a
general rule, a child lawfully residing in the United States
automatically became a citizen if both of his or her parents
naturalized before his or her eighteenth birthday. Id.
§ 1432(a)(1).

    There were three exceptions to this general rule. First, if
the parents had married and then legally separated, only the
parent “having legal custody of the child”—which we have
interpreted to mean sole legal custody—needed to naturalize
    1
      Section 1432 was repealed in 2000 and replaced by a different
provision governing automatic derivative citizenship. Child Citizenship
Act of 2000, Pub. L. No. 106-395, §§ 101, 103, 114 Stat. 1631, 1631–
33. Under that provision, either parent’s naturalization confers
derivative citizenship on lawful permanent resident children under the
age of eighteen who were born outside the United States. See 8 U.S.C.
§ 1431(a). But the new rule is not retroactively applicable to individuals,
such as Mayea, who had already turned eighteen when the new statute
went into effect. See Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir.
2001). All references to § 1432 herein are to the 1996 version, which
was identical to the version repealed in 2000.
6           UNITED STATES V. MAYEA-PULIDO

for the child to derive citizenship. Id. § 1432(a)(3); see
United States v. Casasola, 670 F.3d 1023, 1030–31 (9th Cir.
2012) (holding that “legal custody” in the context of
§ 1432(a)(3) means sole legal custody). Second, if one
parent was deceased, the naturalization of the surviving
parent alone conferred citizenship. 8 U.S.C. § 1432(a)(2).
Third, if “the child was born out of wedlock and the paternity
of the child ha[d] not been established by legitimation,” the
mother’s naturalization alone sufficed to confer citizenship.
Id. § 1432(a)(3).

    Mayea did not derive citizenship under § 1432(a). The
general rule in § 1432(a)(1) did not apply to him because
only one of his parents had naturalized before his eighteenth
birthday. Nor did any of the three exceptions apply to him.
He therefore remained a non-citizen.

    Over the years following his eighteenth birthday, Mayea
was convicted of several crimes. In 2003, the Government
revoked his lawful permanent resident status and deported
him. He illegally reentered the United States and was
deported nine more times before reentering in 2008. In
2010, Mayea was apprehended by immigration officers and
eventually pleaded guilty in 2015 to illegal reentry in
violation of 8 U.S.C. § 1326, which criminalizes reentry by
“any alien who . . . has been denied admission, excluded,
deported, or removed” pursuant to a removal order. After
his release from custody, he was placed on supervised
release and deported again, but soon returned to the United
States. In 2017, immigration agents again detained Mayea
and charged him with illegal reentry for the second time.
The case proceeded to trial in the U.S. District Court for the
Southern District of California.

   A jury found Mayea guilty. Mayea moved for judgment
of acquittal, arguing that § 1432 was unconstitutional as
            UNITED STATES V. MAYEA-PULIDO                   7

applied to him. He argued that under § 1432(a), he would
have derived citizenship through his father alone had his
parents been legally separated, but that he did not because
they remained married. Mayea contended that this disparity
showed that the statute discriminated on the basis of parental
marital status in violation of the constitutional guarantee of
equal protection. He urged the court to remedy this
purported constitutional defect by allowing him to
retroactively derive citizenship solely from his father’s
naturalization. As a citizen, he would not be an “alien” who
could be convicted of illegal reentry.

    The district court rejected Mayea’s argument and denied
acquittal, sentencing him to 65 months in prison and three
years of supervised release. Because this new conviction for
illegal reentry violated the terms of Mayea’s supervised
release for his 2015 conviction, the district court also
revoked that supervised release term and added eight months
of imprisonment to his new sentence. Mayea timely
appealed. On appeal, he continues to press his argument that
§ 1432(a) denies equal protection.

                             II.

    We review de novo both a district court’s denial of a
motion for judgment of acquittal and its determinations
regarding the constitutionality of a statute. United States v.
Jinian, 725 F.3d 954, 959 (9th Cir. 2013); United States v.
Zakharov, 468 F.3d 1171, 1176 (9th Cir. 2006).

   To determine the standard of review applicable to an
equal protection challenge to a statutory classification, we
8              UNITED STATES V. MAYEA-PULIDO

ask whether the classification implicates a protected class. 2
Dent v. Sessions, 900 F.3d 1075, 1081 (9th Cir. 2018), cert.
denied, 139 S. Ct. 1472 (2019). If it does, we apply some
form of heightened scrutiny, requiring the government to
satisfy a more exacting burden for the classification to pass
constitutional muster. Clark v. Jeter, 486 U.S. 456, 461
(1988). If it does not, and if there is no other reason to apply
heightened scrutiny, 3 we must uphold the classification “if
there is any reasonably conceivable state of facts that could
provide a rational basis” for it. FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 313 (1993).

                                  III.

    Mayea’s equal protection challenge focuses on the
difference between § 1432(a)(1), which allows the child of
parents who are not legally separated to derive citizenship
only upon the naturalization of both parents, and the first

     2
       Section 1432 involves action by the federal government, so it is
subject to the Fifth Amendment’s prohibition against “discrimination
that is so unjustifiable as to be violative of due process.” Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (quoting Weinberger
v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). Our approach to evaluating
a Fifth Amendment claim alleging such a due process violation is
“precisely the same as to equal protection claims under the Fourteenth
Amendment.” Id. (quoting Weinberger, 420 U.S. at 638 n.2).

     3
       Mayea has not argued that § 1432(a) impinges on fundamental
rights or is motivated by animus, which may be other bases for applying
more exacting scrutiny. See Short v. Brown, 893 F.3d 671, 679 (9th Cir.
2018) (explaining that heightened scrutiny applies when “a state . . .
burden[s] a fundamental right for some citizens but not for others”);
Mountain Water Co. v. Mont. Dep’t of Pub. Serv. Regulation, 919 F.2d
593, 598 (9th Cir. 1990) (recognizing that a form of “heightened
scrutiny” may be applicable when “Congress’s only purpose in enacting
[a law] was to harm . . . ‘a politically unpopular group.’” (quoting U.S.
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973))).
              UNITED STATES V. MAYEA-PULIDO                       9

clause of § 1432(a)(3), which allows the child of legally
separated parents to derive citizenship upon the
naturalization of one parent if that parent has sole legal
custody. 4




    4
      The full text of the version of § 1432(a) applicable to Mayea
provides:

        (a) A child born outside of the United States of alien
        parents, or of an alien parent and a citizen parent who
        has subsequently lost citizenship of the United States,
        becomes a citizen of the United States upon fulfillment
        of the following conditions:

            (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 under the age of eighteen years; and

            (5) Such child is residing in the United States
                pursuant to a 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
10             UNITED STATES V. MAYEA-PULIDO

    In Mayea’s telling, this statutory scheme impermissibly
discriminates on the basis of parental marital status by
allowing the children of legally separated parents to become
U.S. citizens more easily than the children of non-separated
parents. For the reasons that follow, Mayea’s argument fails.

                                  A.

     We rejected a similar equal protection challenge to
§ 1432(a) in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir.
2003). Barthelemy, the petitioner in that case, was like
Mayea the child of a couple that was not legally separated
(although Barthelemy’s parents could not have legally
separated because they never married in the first place). Id.
at 1063–65. Barthelemy’s father had naturalized before
Barthelemy turned eighteen; his mother had not. Id.
at 1064–65. We held that Barthelemy did not derive
citizenship through § 1432(a)(3) “because his natural
parents never married and thus could not [have] legally
separate[d].” Id. at 1065.

    Barthelemy argued that § 1432(a) “unconstitutionally
discriminates on the basis of his parents’ former marital
status.” Id. We evaluated his equal protection challenge
under the rational basis standard because we interpreted
Fiallo v. Bell, 430 U.S. 787 (1977), as precluding application
of any more exacting scrutiny. We understood Fiallo to
instruct that “Congress has nearly plenary power to establish
the qualifications for citizenship.” Barthelemy, 329 F.3d
at 1065.


                  United States while under the age of eighteen
                  years.

     8 U.S.C. § 1432(a).
             UNITED STATES V. MAYEA-PULIDO                  11

    Applying rational basis review, we held that the statutory
scheme in § 1432(a) had the legitimate objective of
“protect[ing] . . . parental rights.” Id. at 1066. Congress
generally required both parents to naturalize, we reasoned,
because “[i]f United States citizenship were conferred to a
child where one parent naturalized, but the other parent
remained an alien, the alien’s parental rights could be
effectively extinguished.” Id. Consistent with that rationale,
Congress exempted from the two-parent-naturalization
requirement those children whose non-citizen parent had
fewer or no rights to protect: children with a deceased parent,
a separated parent without legal custody, or an unknown
father. See id.

                              B.

    As a prior decision of our court, Barthelemy is binding
unless it is “clearly irreconcilable with the reasoning or
theory of intervening higher authority.” Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). Mayea argues
that the Supreme Court’s decision in Sessions v. Morales-
Santana, 137 S. Ct. 1678 (2017), is intervening higher
authority that “effectively overruled” Barthelemy. See
Miller, 335 F.3d at 893.

    In Morales-Santana, the Supreme Court held that the
statutory scheme at 8 U.S.C. §§ 1401(g) and 1409, which
imposed different requirements on unwed mothers and
unwed fathers for conferring citizenship upon the birth of a
child abroad, denied equal protection. 137 S. Ct. at 1700–
01. Under that scheme, when a child was born abroad to
unmarried parents, only one of whom was a U.S. citizen, the
U.S.-citizen parent could transmit citizenship to the child at
birth by being physically present in the United States for a
specified period prior to the child’s birth. Id. at 1686. For
an unmarried U.S.-citizen father, five years of physical
12             UNITED STATES V. MAYEA-PULIDO

presence was required. Id. But for an unmarried U.S.-
citizen mother, one year sufficed. Id. By comparison, for
married couples in which only one of the spouses was a U.S.
citizen, the physical-presence requirement for the citizen
parent was five years regardless of gender. Id. 5

      Morales-Santana subjected this statutory scheme to
heightened scrutiny because it “differentiate[d] on the basis
of gender” between unmarried mothers and unmarried
fathers. Id. at 1689–90 (explaining that “heightened scrutiny
. . . attends ‘all gender-based classifications’” (quoting J.E.B.
v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994))). In
explaining this approach, the Court clarified that Fiallo did
not mandate the application of rational basis review for all
equal protection challenges to immigration statutes. Rather,
Fiallo “disclaimed . . . the application of an exacting
standard of review” for statutes that involved Congress’s
power to admit non-citizens, but not for statutes governing
claims of citizenship. Id. at 1693–94.

    The Court then held that the physical-presence
requirements in 8 U.S.C. §§ 1401(g) and 1409 failed to
withstand heightened scrutiny. As the legislative history
revealed, those requirements were the product of two beliefs:
the “[f]ear[] that a foreign-born child could turn out more
alien than American in character,” and the assumption that
the “unwed mother is the natural and sole guardian of a
nonmarital child.” Id. at 1691–92 (quotation marks
omitted). Congress reasoned that “there was no need for a

     5
      For married couples in which both spouses were citizens, it was
enough for either parent to “ha[ve] had a residence in the United States
or one of its outlying possessions, prior to the birth of [the child].”
Morales-Santana, 137 S. Ct. at 1695 n.18 (second alteration in original)
(quoting 8 U.S.C. § 1401(c)).
            UNITED STATES V. MAYEA-PULIDO                 13

prolonged residency prophylactic” for unwed citizen
mothers, because “[t]he alien father, who might transmit
foreign ways, was presumptively out of the picture.” Id.
at 1692. By contrast, a lengthy residency requirement was
necessary for unwed citizen fathers to have the chance to
“counteract the influence” of the presumably devoted non-
citizen mother. Id. The Court concluded that the
“stunningly anachronistic” gender stereotypes animating the
statutory scheme served no important governmental interest.
Id. at 1692–93.

    Finally, the Court determined that the proper remedy was
to subject both unwed mothers and unwed fathers to the
more stringent five-year physical-presence rule. Id. at 1698–
1701. The Court pointed out that the alternative—extending
the more favorable one-year rule to unwed mothers and
fathers alike—would have the “irrational” effect of making
it easier for the children of unmarried parents, only one of
whom was a citizen, to receive citizenship, compared to the
children of similarly situated married parents, to whom the
five-year rule applied. Id. at 1700. Remarking that Congress
could not have intended to favor “nonmarital children” over
“marital children” in this way, the Court observed in a
footnote: “Distinctions based on parents’ marital status, we
have said, are subject to the same heightened scrutiny as
distinctions based on gender.” Id. at 1700 & n.25.

    Mayea’s argument from Morales-Santana proceeds in
two steps. First, he argues that Morales-Santana dispensed
with the categorical rule of deference to immigration-related
statutes we applied in Barthelemy. Second, he contends that
footnote 25 of Morales-Santana requires us to apply
heightened scrutiny to the parental marital status
classification in § 1432(a).
14          UNITED STATES V. MAYEA-PULIDO

    Mayea is right about the first step. We agree that
Barthelemy’s reason for applying rational basis review is
irreconcilable with the reasoning in Morales-Santana. But
because he is wrong about the second step, his attempt to do
away with Barthelemy’s holding fails. We conclude that
rational basis review applies to § 1432(a) for reasons
separate and apart from those relied on in Barthelemy. And
Barthelemy’s holding that § 1432(a) is rational is not
irreconcilable with Morales-Santana, so we remain bound
by that portion of Barthelemy’s reasoning and thus by its
ultimate holding that § 1432(a) is constitutional.

                             1.

    Like the statutes examined in Morales-Santana,
§ 1432(a) governs the acquisition of citizenship, not the
admission or exclusion of non-citizens. We therefore agree
with Mayea that Barthelemy’s justification for applying
rational basis review—that immigration statutes must
always be given deference and thus reviewed only for
rationality—is “clearly irreconcilable” with Morales-
Santana’s clarification of the scope of deference to Congress
on immigration issues, which prior cases such as Fiallo had
described. See Miller, 335 F.3d at 893. We have already
held as much in Dent v. Sessions, 900 F.3d 1075 (9th Cir.
2018), where we recognized that “Morales-Santana dictates
that . . . equal protection claims do not necessarily receive
rational basis review simply because they are in the
immigration context.” 900 F.3d at 1081.

   Morales-Santana thus left open the possibility that a
court may apply heightened scrutiny to a citizenship
provision if there is otherwise a basis to do so. As we
explained in Dent, when faced with a citizenship statute we
simply proceed “as we would in a non-immigration equal
             UNITED STATES V. MAYEA-PULIDO                   15

protection claim”: by determining whether the statute
classifies on a basis that triggers heightened scrutiny. Id.

                              2.

    We highlight at the outset that, contrary to Mayea’s
characterization, § 1432(a) does not discriminate on the
basis of parental marital status in and of itself. The statute’s
general rule requires the naturalization of both parents to
transmit citizenship to their child. 8 U.S.C. § 1432(a)(1). To
trigger the exception in § 1432(a)(3) that allows a child to
derive citizenship upon the naturalization of one parent, the
statute requires both “a legal separation of the parents” and
that the naturalizing parent have sole “legal custody of the
child.” See Wedderburn v. INS, 215 F.3d 795, 800 (7th Cir.
2000) (observing that § 1432(a)(3) “requires proof of both
‘legal custody’ and ‘legal separation’”). For the reasons that
follow, we conclude that neither requirement imposes a
suspect classification that triggers heightened scrutiny.

                              3.

    The parties have failed to identify any decision from our
court or the Supreme Court evaluating what level of scrutiny
applies to classifications of children based on their parents’
marital status at a time after their birth or on a parent’s
custody status over them, and we are aware of none.

    Therefore, to determine in the first instance the
appropriate level of scrutiny to apply to § 1432(a), we begin
by asking whether the statute implicates a class of people
who have “experienced a history of purposeful unequal
treatment or been subjected to unique disabilities on the
basis of stereotyped characteristics not truly indicative of
their abilities.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
313 (1976) (quotation marks omitted); see Hibbs v. Dep’t of
16             UNITED STATES V. MAYEA-PULIDO

Human Res., 273 F.3d 844, 856 (9th Cir. 2001) (explaining
that the “application of heightened scrutiny to . . . gender
discrimination is justified largely on the basis” that such
discrimination reflects “a history of purposeful unequal
treatment,” and that “[g]ender differences are so seldom
relevant to the achievement of any legitimate state interest
that laws grounded in such considerations are deemed to
reflect prejudice and antipathy” (citation and quotation
marks omitted)), aff’d, 538 U.S. 721 (2003).

    We are unaware of any evidence that classifications
based on whether parents are legally separated after their
child’s birth or whether one parent has sole legal custody
over their child reflect historical purposeful discrimination
or legal disadvantage, and Mayea has pointed to none. Nor
do the other considerations in our usual test for determining
whether heightened scrutiny applies suggest that such
scrutiny is warranted here. See Karnoski v. Trump, 926 F.3d
1180, 1200 & n.17 (9th Cir. 2019) (citation omitted)
(discussing the four-part test: “A) whether the class has been
historically subjected to discrimination; B) whether the class
has a defining characteristic that frequently bears a relation
to ability to perform or contribute to society; C) whether the
class exhibits obvious, immutable or distinguishing
characteristics that define them as a discrete group; and D)
whether the class is a minority or politically powerless”). 6

     6
      We recognize that there has been discrimination against subgroups
within or otherwise related to the classifications in § 1432(a). For
example, children with unmarried same-sex parents have faced
discrimination in some contexts, but that has more to do with
discrimination on the basis of sexual orientation than on the basis of the
classifications at issue here. See Benjamin G. Ledsham, Means to
Legitimate Ends: Same-Sex Marriage Through the Lens of Illegitimacy-
Based Discrimination, 28 Cardozo L. Rev. 2373, 2375 (2007)
(“[D]iscrimination against children of same-sex couples because of their
               UNITED STATES V. MAYEA-PULIDO                         17

We therefore conclude that rational basis review applies to
Mayea’s challenge to § 1432(a).

    This conclusion is consistent with the Seventh Circuit’s
statement in Wedderburn that “the conjunction [in
§ 1432(a)(3)] of ‘legal separation’ with ‘legal custody’ does
not concern any suspect class,” and therefore that “a rational
basis is enough to defeat a constitutional challenge” to the
statute. See 215 F.3d at 800. Similarly, the Second Circuit
has held that “§ 1432(a) does not discriminate on the basis
of a protected class.” Pierre v. Holder, 738 F.3d 39, 51 (2d
Cir. 2013).

                                   4.

    Mayea’s arguments against application of rational basis
review are unavailing. First, he argues that the Supreme
Court has applied heightened scrutiny to legal distinctions
based on parental marital status. But the cases Mayea cites
for that proposition all involved discrimination based on a
child’s “legitimacy”—whether the child’s parents were
married at the time of the child’s birth. See Child, Black’s
Law Dictionary (11th ed. 2019) (defining “legitimate child”
as “a child conceived or born in lawful wedlock”). 7 It is
well-established that legitimacy classifications are subject to
intermediate scrutiny due to the historical discrimination
faced by “illegitimate” children. See Clark v. Jeter, 486 U.S.

parentage persists.”). And, of course, there have been “illegitimacy”
based classifications motivated by historical discrimination against
children whose parents were not married at the time of their birth, which
we discuss below.
    7
     The terms “marital child” and “nonmarital child” are increasingly
being used in lieu of “legitimate child” and “illegitimate child.” See
Nonmarital Child, Black’s Law Dictionary (11th ed. 2019).
18           UNITED STATES V. MAYEA-PULIDO

456, 461 (1988) (holding that “classifications that burden
illegitimate children for the sake of punishing the illicit
relations of their parents” must be “substantially related to
an important governmental objective”); Weber v. Aetna Cas.
& Sur. Co., 406 U.S. 164, 175 (1972) (“The status of
illegitimacy has expressed through the ages society’s
condemnation of irresponsible liaisons beyond the bonds of
marriage. But visiting this condemnation on the head of an
infant is illogical and unjust.”).

    But § 1432(a) does not contain a legitimacy
classification. The first clause of § 1432(a)(3) looks to
parental marital status at the time either parent naturalizes,
rather than at the time of the child’s birth. A nonmarital child
would automatically derive citizenship under § 1432(a)(3) if
his parents later married and then legally separated, the same
as a marital child whose parents were married at his birth but
later separated. See Levy v. U.S. Attorney Gen., 882 F.3d
1364, 1367–68 (11th Cir.) (“The clause does not require that
a child be born into wedlock: a child born out of wedlock
whose parents later marry and legally separate qualifies
under § 1432(a)(3).”), cert. denied, 138 S. Ct. 1168 (2018);
Pierre, 738 F.3d at 51 (“[T]he distinction drawn in
§ 1432(a)(3) did not reflect discrimination based on
legitimacy.”). Because the first clause of § 1432(a) does not
classify individuals based on legitimacy, the line of cases on
which Mayea relies is inapposite.

    Mayea next seizes on a footnote in Morales-Santana to
argue that all parental marital status classifications warrant
intermediate scrutiny. That footnote states: “Distinctions
based on parents’ marital status, we have said, are subject to
the same heightened scrutiny as distinctions based on
gender.” Morales-Santana, 137 S. Ct. at 1700 n.25. Read
in context, it is clear that the footnote, too, refers to the
             UNITED STATES V. MAYEA-PULIDO                    19

Supreme Court’s precedent holding that legitimacy, rather
than parental marital status more generally, is a suspect
classification that triggers more exacting review. To begin
with, the footnote cites Jeter, in which the Court held that
“classifications that burden illegitimate children for the sake
of punishing the illicit relations of their parents” are subject
to intermediate scrutiny. 486 U.S. at 461. Jeter did not
extend heightened scrutiny to all classifications based on
parental marital status.

    Moreover, the Morales-Santana footnote concerns a
hypothetical legitimacy classification. As explained above,
the footnote was part of a section in Morales-Santana
discussing how to rectify the unconstitutionality of a
statutory scheme that required an unmarried U.S.-citizen
father with a child born abroad to be physically present in
the United States for five years prior to the child’s birth in
order for the father to transmit his citizenship to the child,
whereas an unmarried mother could do the same after only
one year of physical presence. 137 S. Ct. at 1686, 1698–
1701. The Court declined to extend the one-year rule to
unwed fathers because that rule would have made it easier
for parents who were unmarried at the time of their child’s
birth to transmit their citizenship than for parents who were
married at the time of their child’s birth to do so. Id. at 1700;
see also id. at 1686 (noting that the latter group of parents
was subject to the five-year rule). It was this hypothetical
that prompted the Court to observe that “[d]isadvantageous
treatment of marital children in comparison to nonmarital
children is scarcely a purpose one can sensibly attribute to
Congress,” and to append the footnote underscoring that
such differential treatment—turning on legitimacy—would
have to withstand heightened scrutiny. Id. at 1700 & n.25;
see United States v. Muckleshoot Indian Tribe, 235 F.3d 429,
433 (9th Cir. 2000) (instructing that when interpreting
20           UNITED STATES V. MAYEA-PULIDO

judicial opinions, “the language of the court must be read in
the light of the facts before it” (quotation marks omitted)).

    The Court’s use of the phrase “we have said” in the
footnote reinforces the conclusion that it was referring to
legitimacy-based classifications.        Id. at 1700 n.25
(“Distinctions based on parents’ marital status, we have said,
are subject to the same heightened scrutiny as distinctions
based on gender.” (emphasis added)). In Mayea’s own
words, by the time Morales-Santana was decided, “the
Supreme Court ha[d] long held that distinctions based on
legitimacy” are subject to intermediate scrutiny. See, e.g.,
Jeter, 486 U.S. at 461; Pickett v. Brown, 462 U.S. 1, 8
(1983); Mills v. Habluetzel, 456 U.S. 91, 98–101 (1982);
United States v. Clark, 445 U.S. 23, 26–27 (1980); Lalli v.
Lalli, 439 U.S. 259, 265 (1978) (plurality opinion); Trimble
v. Gordon, 430 U.S. 762, 767 (1977); Weber, 406 U.S. at
175–76. By contrast, to our knowledge the Court has never
applied heightened scrutiny to classifications based on
parental marital status outside the legitimacy context. 8 We
therefore understand the footnote as invoking the well-
established line of precedent, culminating in Jeter, applying
heightened scrutiny to legitimacy classifications. Indeed, it
would have been strange for the Court in Morales-Santana
to claim that it “ha[d] said” all classifications based on
parents’ marital status are subject to heightened scrutiny
when in fact it had never done so. See 137 S. Ct. at 1700
n.25.

    In sum, Mayea’s attempts to resist application of rational
basis review are unavailing.


     8
        Indeed, Mayea concedes that “parents’ marital status and
illegitimacy are not always the same thing.”
               UNITED STATES V. MAYEA-PULIDO                         21

                                   5.

     Reviewing § 1432(a) for a rational basis, we remain
bound by our holding in Barthelemy that the statute survives
that deferential standard. As we explained in Barthelemy,
the distinctions drawn by that statutory provision are
rationally related to the legitimate government interest in
protecting the parental rights of the non-citizen parent.
329 F.3d at 1066. 9 By permitting a naturalizing parent to
unilaterally transmit citizenship to a child only when that
parent is legally separated from the other parent and has sole
legal custody over the child, § 1432(a) ensures that the non-
citizen parent’s possible “desire that [their child] not become
a United States citizen is honored.” Id. at 1066–67; see also
Levy, 882 F.3d at 1368; Pierre, 738 F.3d at 51. The
alternative—allowing a naturalizing parent to transmit
citizenship without regard to the wishes of a non-citizen
parent who has equal interests with respect to their child—
could result in the “naturalizing parent . . . usurping the
parental rights of the [non-citizen] parent.” Barthelemy,
329 F.3d at 1066.

    Even if we were not bound by Barthelemy, we would
conclude that § 1432(a) is rational. Although Mayea argues
that § 1432(a) fails rational basis review because Morales-

     9
       Although it appears that the Barthelemy petitioner’s circumstances
may have implicated only the marital status classification in § 1432(a)
and not also the custody classification, our discussion of the statute’s
rational approach to protecting parental rights touched on both. See
Barthelemy, 329 F.3d at 1066 & n.4. And to the extent Barthelemy
should be read as only reaching a holding about the marital status
classification, we reach the same conclusion as to the custody
classification. Protecting the parental rights of parents with custody
rights is a legitimate legislative purpose, and § 1432(a)’s treatment of
custody status furthers that purpose.
22             UNITED STATES V. MAYEA-PULIDO

Santana explained that discriminating against married
parents is “scarcely a purpose one can sensibly attribute to
Congress,” 137 S. Ct. at 1700, discriminating against
married parents is not the purpose behind § 1432(a).
Protecting the parental rights of the non-citizen parent is.
See Barthelemy, 329 F.3d at 1066–67. That is plainly a
legitimate legislative purpose.     See United States v.
Casasola, 670 F.3d 1023, 1028–29 (9th Cir. 2012) (citing
cases from other circuits also holding that protecting the
parental rights of a non-citizen parent is a legitimate
legislative purpose). Mayea does not contest this principle.
Nor does he dispute that § 1432(a) furthers the purpose of
protecting parental rights. Accordingly, we conclude that
§ 1432(a) does not deny equal protection. 10

                                   IV.

     For the foregoing reasons, we AFFIRM.




     10
        Mayea makes an additional argument that, by invalidating the
citizenship statute at 8 U.S.C. § 1409(c), Morales-Santana invalidated
the entire definition of “alienage” in the Immigration and Nationality
Act. And because alienage is an element of the illegal reentry statute at
8 U.S.C. § 1326, Mayea insists that statute is itself unconstitutional. But
Mayea offers no explanation as to why § 1326 cannot be “fully
operative” after § 1409(c), a wholly distinct provision, has been
invalidated and thus severed from the remainder of the immigration
statutes. See INS v. Chadha, 462 U.S. 919, 932–34 (1983) (explaining
that pursuant to the Immigration and Nationality Act’s severability
clause, an unconstitutional provision is severed and the rest of the
statutory scheme survives “if what remains after severance is fully
operative as a law” (citation and quotation marks omitted)). Section
1326 remains intact after Morales-Santana.
