Friend v. Reno

Decision Date29 March 1999
Docket NumberNos. 97-56251,97-56328,s. 97-56251
Citation172 F.3d 638
Parties99 Cal. Daily Op. Serv. 2242, 99 Cal. Daily Op. Serv. 2425 Horace Gozon FRIEND, Plaintiff-Appellee, v. Janet RENO, Attorney General; U.S. Department of Justice; Immigration and Naturalization Service, Defendants-Appellants. Horace Gozon Friend, Plaintiff-Appellee, v. Janet Reno, Attorney General; U.S. Department of Justice; Immigration and Naturalization Service, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Janet M.C. Thomas and Tracie Pham, Law Office of Janet M.C. Thomas, Newport Beach, California, for the plaintiff-appellee-cross-appellant.

John B. Bartos, Assistant United States Attorney, Los Angeles, California, for the defendants-appellants-cross-appellees.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-96-00724-AHS.

Before: BROWNING, HALL, and GRABER, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The Attorney General appeals from the district court's declaratory judgment holding that Horace Gozon Friend is a citizen of the United States. The district court had jurisdiction over this matter pursuant to 8 U.S.C. § 1503(a). We have jurisdiction to review the decision of the district court pursuant to 28 U.S.C. § 1291, and we reverse.

I.

The facts of this case are not in dispute. Horace Gozon Friend ("Friend") was born in the Philippines on January 16, 1931, when the Philippines was a possession of the United States. His father, Horace B. Friend, was a U.S. citizen who had never left the Philippines before Friend's birth. Under a statute then in force, section 1993 of the U.S. Revised Statutes, Friend's father must have resided "in the United States" prior to his son's birth in order to transmit his U.S. citizenship to his son. See Rev. Stat. § 1993; Weedin v. Chin Bow, 274 U.S. 657, 675, 47 S.Ct. 772, 71 L.Ed. 1284 (1927). Friend has contended before various U.S. authorities that his father's residence in the Philippines should qualify as residence "in the United States" within the meaning of section 1993.

The U.S. Embassy in the Philippines disagreed, informing Friend in 1983 that he did not qualify for derivative U.S. citizenship. On January 25, 1986, Friend arrived in the United States on a nonimmigrant visa and, despite the earlier decision from the U.S. Embassy, filed an application for a certificate of U.S. citizenship with the Immigration and Naturalization Service ("INS"). On July 23, 1991, an Immigration Examiner granted Friend a certificate of citizenship because his father had been a citizen of the United States and had "resided in the United States prior to [Friend's] ... birth."

On January 29, 1992, approximately six months after Friend received his certificate, an INS official in Manila, the Philippines, requested a review of Friend's file. On February 24, 1992, the U.S. Embassy in Manila informed the INS that it believed that Friend's certificate of citizenship had been issued in error. Approximately twenty months later, on August 16, 1993, Friend was served with a notice of intent to cancel his certificate of citizenship because his father's residence in the Philippines did not constitute residence "in the United States" under Rev. Stat. § 1993. Friend's certificate of citizenship was revoked on November 22, 1994, and his administrative appeal was dismissed on June 4, 1996.

On September 19, 1996, Friend submitted a corrected complaint requesting a declaratory judgment from the U.S. District Court that Friend was a citizen of the United States and that the Attorney General had revoked his certificate of citizenship unlawfully. The district court ruled that, while a close question, Horace B. Friend's residence in the Philippines did not constitute residence "in the United States" for purposes of granting Friend derivative citizenship under Rev. Stat. § 1993. Despite this holding, the district court determined that the certificate was revoked improperly. The court reasoned that the status of the Philippines under § 1993 was sufficiently ambiguous that the Immigration Examiner's error in issuing the certificate of citizenship did not rise to a level of illegality sufficient to permit the certificate's cancellation under 8 U.S.C. § 1453. Moreover, the district court found that the cancellation of the certificate amounted to an abuse of the Attorney General's discretion. As a result, the district court granted summary judgment for Friend, declaring him to be a citizen of the United States. The court granted a stay, however, pending appeal to this Court.

Both the Attorney General and Friend challenge the district court's decision. On cross-appeal, Friend contends that the district court erred in holding that residence in the Philippines as of 1931 did not constitute residence "in the United States" under Rev. Stat. § 1993. Friend also asserts that even if section 1993's definition of the United States did not include the Philippines, any such distinction between the Philippines and other U.S. Territories that were considered part of the United States under section 1993 violates his equal protection rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. On direct appeal, the Attorney General claims that the district court incorrectly ruled that the Immigration Examiner's mistake of law provided insufficient grounds to revoke Friend's certificate of citizenship under 8 U.S.C. § 1453. The Attorney General also argues that she committed no abuse of discretion in canceling Friend's certificate of citizenship.

II.

The central dispute in this case is raised on cross-appeal: whether the residence of Friend's father in the Philippines qualified as residence "in the United States" under Rev. Stat. § 1993, thereby permitting Friend's father to transmit his U.S. citizenship to Friend. We review questions of statutory interpretation and grants of summary judgment de novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998) (summary judgment); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1444 (9th Cir.1995) (en banc) (statutory interpretation). If the statute is silent or ambiguous, and Congress has not expressed its intent on the issue in question, the court will defer to the agency's interpretation of the statute unless it is arbitrary or capricious. See Jang v. Reno, 113 F.3d 1074, 1076-77 (9th Cir.1997).

Despite its age, it is clear that Rev. Stat. § 1993 is the statute that controls the outcome of this case. See United States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th Cir.1998) (" 'The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth.' ") (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995)) (internal quotation omitted). The version of section 1993 in force at the time of plaintiff's birth in 1931 stated in relevant part:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

Rev. Stat. § 1993; see also Rogers v. Bellei, 401 U.S. 815, 823 n. 3, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971).

Friend claims that his father's residence in the Philippines should qualify as residence in the United States, permitting Friend's father to transfer his U.S. citizenship to Friend. The Attorney General opposes this interpretation, arguing that the Philippines is not included in section 1993's reference to the United States. Section 1993 itself provides no clear definition of the term "United States," and no cases have expressly addressed this ambiguity. 1 This lack of a clear definition is not surprising given the fact that, at the time of section 1993's original enactment in 1855, the United States had yet to annex unincorporated territories such as the Philippines.

The only contemporary interpretation of section 1993 cited by either party is an opinion from the solicitor of the State Department, dated September 4, 1930, shortly before Friend's birth. See Citizenship, Does Residence in the Philippine Islands Satisfy the Requirement of Section 1993 of Revised Statutes of the United States Concerning Residence in the United States?, II Op. Solicitor's Off. 935 (Dep't State 1930). In that opinion, the solicitor considered the citizenship of a girl born in China whose father was a U.S. citizen. The father had not resided in any U.S. territory other than the Philippines prior to his daughter's birth. Based on these facts, the solicitor concluded that the father had not resided "in the United States" for the purposes of section 1993, and therefore could not transfer his U.S. citizenship to his daughter. See id. at 936-38. This opinion squarely supports the Attorney General's interpretation of section 1993.

In reaching its conclusion, the solicitor's opinion relied on interpretations of the term "United States" in the context of the Fourteenth Amendment to the U.S. Constitution. See id. at 938. The Fourteenth Amendment provides in relevant part that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const., amend. XIV, § 1. This Court has recently confirmed that "birth in the Philippines during the territorial period does not constitute birth 'in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship." Rabang v. Immigration & Naturalization Serv., 35 F.3d 1449, 1452 (9th Cir.1994); accord Lacap v. Immigration & Naturalization Serv., 138 F.3d 518,...

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