Tamaulipas Birth Certificate Legitimates Child to Acquire Citizenship through USC Father

Saldana Iracheta v. Holder, No. 12-60087 (Sept. 11, 2013) (Reavley, Elrod, Graves)

Ever had trouble deciphering legitimation and acknowledgment requirements to determine whether a person born abroad and out of wedlock acquired U.S. citizenship at birth through his U.S. citizen father?  The Fifth Circuit shed some light on this issue—at least for people born in Tamaulipas, Mexico, and with a birth certificate naming the USC as the child’s father.  The Department of Homeland Security kept denying Saldana's application for acquired citizenship stating that he was not legitimated by his USC father, but the panel held that a father’s name on the birth certificate before the Civil Registry in Tamaulipas legitimates the child as required for citizenship.  Since the USC father met the other residency requirements, the panel declared that Saldana met the requirements of Immigration and Nationality Act §§ 301 and 309 and acquired U.S. citizenship from his father at birth.

Recap of Facts:

·         Saldana was born in 1964 in Tamaulipas out-of-wedlock to Mexican mother and USC father.
·         When he was 29 months old, his mother and father registered him before the Civil Registry and put their names on his birth certificate.
·         His mother and father never married.
·         His father had the required amount of US residency for Saldana to have acquired citizenship.

The only question was whether, under the applicable Mexican laws, Saldana was legitimated by his USC father by virtue of the birth certificate.

The panel found that the applicable law was the Civil Code of Tamaulipas, not the Constitution of Mexico which is cited in several Administrative Appeals Office decisions on this issue.  Under the Tamaulipas Code in existence in 1964, a child born out of wedlock could be “acknowledged” in a birth certificate before an official of the Civil Registry, but only a child born in wedlock could be “legitimated.”  The panel held that the distinction in the Tamaulipas Code between “legitimation” and “acknowledgment” does not matter since the acknowledged child acquired full filial rights, just like legitimated children.  Since the substantive rights of legitimated and acknowledged children are the same in Tamaulipas, “there is no legal or logical basis for” maintaining a distinction between them for the purposes of acquired citizenship.

Cert Grant On Derivative Citizenship Statute's Disparate Treatment of Out-of-Wedlock Birth to U.S. Citizen Father vs. U.S. Cititzen Mother

This post was written by Matthew Wright, Legal Research & Writing Specialist in the Amarillo office of the Federal Public Defender for the Northern District of Texas.

Everyone who has raised an acquired or derivative citizenship defense to a prosecution for illegal reentry understands that it is more difficult to establish citizenship through an unwed U.S. citizen father than through an unwed U.S. citizen mother. Today, the Supreme Court agreed to decide whether one of the added difficulties—a length-of-residence requirement for the father—is constitutional (and in an illegal reentry case, no less).

The requirements for transmitting citizenship are described in 8 U.S.C. §§ 1401 and 1409 (alias: INA §§ 301 and 309), and those statutes have been amended a number of times. Typically, these cases involve a child born outside the United States when one parent is a U.S. citizen and the other parent is not.

When a child is born out-of-wedlock to a U.S. citizen mother, the child acquires U.S. citizenship at birth "if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year." 8 U.S.C. § 1409(c). But if the child is born out-of-wedlock to a U.S. citizen father, the child must prove 1) that the father was present in the U.S. for a certain number of years before the child's birth, and 2) that the father took certain official steps acknowledging or legitimating paternity. § 1409(a). The Supreme Court first considered the constitutionality of this scheme in Miller v. Albright, but the Court failed to reach a majority opinion. In Nguyen v. INS, the Court upheld the legitimation requirement against an equal protection challenge.

Today, the Supreme Court granted certiorari in Flores-Villar v. United States, No. 09-5081, to address the unequal residency requirements for citizenship transmission. Prior to an amendment in 1986, an alien seeking citizenship through a citizen father had to show that the father was present in the United States for ten years prior to his birth, at least five of which were after the father reached the age of 14. Under current law (applicable to anyone born after November 14, 1986), the alien needs to show the father was present for five years, two of which were after 14.

Enter Flores, who wanted to raise a derivative citizenship defense to an illegal reentry charge. The old law applied to him, and his father was only 16 when Flores was born, so it was impossible for his father to transmit U.S. citizenship. On this basis, the government moved to exclude any derivative citizenship defense. The district court granted that motion and overruled Flores's constitutional attack. Flores was then convicted of illegal reentry on stipulated facts.

The petition raises a number if interesting issues, such as whether a defendant has standing to raise a violation of his father's equal protection rights, and whether the intermediate scrutiny normally applied to gender discrimination claims should give way to the deference normally afforded Congress in immigration matters.

This is an extraordinarily complex area of immigration law, and if you think your client may have a derivative citizenship defense (or would have a valid defense absent the unequal residency requirements), you may want to consider consulting someone who has litigated these cases before. Also note that the Fifth Circuit has already rejected an equal protection challenge to the more-severe residency requirements for unwed fathers in United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002). Even so, in light of today's grant, the issue should be preserved in any pending cases.

If you'd like to read more about the case, SCOTUSblog has helpfully collected the Ninth Circuit's opinion, petition for certiorari, brief in opposition, and reply.

3/23/10 UPDATE: Check out some additional coverage from the AP.