United States v. Morgan Gonzalez

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NOT FOR PUBLICATION SEP 15 2011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,
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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