Opinion
No. 17-50414 No. 17-50415
02-14-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDUARDO DUFFY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDUARDO DUFFY, AKA Eduardo Duffy-Carrasco, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 3:16-cr-02358-MMA-1 MEMORANDUM D.C. No. 3:12-cr-03690-MMA-1 Appeal from the United States District Court for the Southern District of California
Michael M. Anello, 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. --------
Eduardo Duffy, a citizen of Mexico, appeals his conviction, following a jury trial, for illegal reentry after deportation in violation of 8 U.S.C. § 1326 and the revocation of his supervised release based on the illegal reentry conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
Duffy argues that his underlying removal order based on his California Penal Code (CPC) § 211 conviction was invalid because CPC § 211 is not an aggravated felony under 8 U.S.C. § 1101(a)(43). This argument is foreclosed by our recent decision in United States v. Martinez-Hernandez, No. 16-50423, 2019 WL 138167 (9th Cir. Jan. 9, 2019), which held that CPC § 211 is an aggravated felony because it qualifies as a categorical generic theft offense under 8 U.S.C. § 1101(a)(43)(G).
II
Duffy argues that his illegal reentry conviction was invalid because, following Morales-Santana, he was "convicted under a law classifying on an impermissible basis." Sessions v. Morales-Santana, — U.S. — , 137 S. Ct. 1678, 1699 n.24 (2017). Duffy does not argue that the provisions declared unconstitutional in Morales-Santana apply to him; rather, he sets forth a facial equal protection challenge to 8 U.S.C. § 1326 under the Fifth Amendment's Due Process Clause.
"We review questions regarding the constitutionality of a statute de novo." See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).
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, 8 U.S.C. § 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. Duffy's facial equal protection challenge rests upon the gender-based distinction in §§ 1401(a)(7) and 1409(a) and (c) held invalid by Morales-Santana.
The severability clause in the Immigration and Nationality Act ("INA") dictates that the remainder of 8 U.S.C. §§ 1401 and 1409 was not affected 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. Duffy was properly convicted under 8 U.S.C. § 1326, which incorporates definitions of "alien" and "citizen" that were not affected by Morales-Santana. Thus, Duffy was not "convicted under a law classifying on an impermissible basis." Cf. Morales-Santana, 137 S. Ct. at 1699 n.24.
III
Duffy, who was born out of wedlock, argues that § 1409(a)(1)'s requirement that "a blood relationship between the person and the father [be] established by clear and convincing evidence" violates the equal protection principle because the same requirement is not imposed upon children who were born in wedlock.
We need not resolve Duffy's constitutional challenge to § 1409(a)(1). Even if we were to agree with his argument, the remedy would be to sever subsection 1 from the requirements of § 1409(a) pursuant to the INA's severability clause. However, Duffy would still have to meet the remaining requirements of § 1409(a), which includes that his father "agreed in writing to provide financial support for [Duffy] until [Duffy] reaches the age of 18 years." 8 U.S.C. § 1409(a)(3). Duffy has not argued or pointed to evidence in the record showing that he is able to meet the remaining requirements of § 1409(a). As such, this argument is waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived."); Fed. R. App. P. 28(a)(8)(A) (requiring the argument to contain "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies"). Even if Duffy prevailed on his equal protection claim regarding subsection 1, he would not be entitled to relief.
We affirm Duffy's illegal reentry conviction and the subsequent revocation of supervised release.
AFFIRMED.