Scales v. INS.

Decision Date21 November 2000
Docket NumberNo. 97-70915,97-70915
Citation232 F.3d 1159
Parties(9th Cir. 2000) STANLEY RUSSELL SCALES, Jr., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
CourtU.S. Court of Appeals — Ninth Circuit

Page 1159

232 F.3d 1159 (9th Cir. 2000)
STANLEY RUSSELL SCALES, Jr., Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 97-70915
U.S. Court of Appeals for the Ninth Circuit
Argued and Submitted August 10, 2000
Filed November 21, 2000

Page 1160

Karen Gilbert, Seattle, Washington, for the petitioner.

Michelle Slack, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A36-202-970

Before: Betty B. Fletcher and A. Wallace Tashima, Circuit Judges, and Adrian G. Duplantier, District Judge.*

TASHIMA, Circuit Judge:

Stanley Russell Scales, Jr. ("Petitioner"), petitions for review of a decision of the Board of Immigration Appeals ("BIA"), dismissing his appeal from a final order of deportation. Petitioner contends that he is a United States citizen by virtue of his father's U.S. citizenship; therefore, that he is not deportable under

Page 1161

S 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. S 1251(a)(2)(A)(iii), as an alien convicted of an aggravated felony.1 We must decide whether 8 U.S.C. S 1401 requires a blood relationship between a person born outside the United States and his U.S. citizen parent, a question of first impression. We hold that it does not, and so grant the petition.

Review Jurisdiction

Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA"), we lack jurisdiction over this appeal if Petitioner is an alien deportable because of having committed an aggravated felony.2 IIRIRA S 309(c)(4)(G); see Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir. 1999); Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir. 1999).3 "We have jurisdiction to determine whether we have jurisdiction over the merits of this petition for review," however. Alberto-Gonzalez v. INS, 215 F.3d 906, 908 (9th Cir. 2000).

We have jurisdiction over a nationality claim under 8 U.S.C. S 1252(b)(5), which provides the following procedure to determine nationality claims:4

(A) Court determination if no issue of fact

If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.

(B) Transfer if issue of fact

If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28.

8 U.S.C. S 1252(b)(5).5

Background

Petitioner was born in the Philippines in 1977, to Stanley Scales, Sr. ("Scales"), an

Page 1162

American citizen-serviceman at the time, and Aily Topaz, a Philippine citizen. Scales and Topaz met during the first week of September 1976, and one week later, Topaz told Scales that she was pregnant, probably from a prior relationship. Topaz and Scales were married on March 13, 1977, and Petitioner was born on April 6, 1977. When Petitioner was two years old, the family moved to Texas, where they lived until about 1988, at which time they moved to the State of Washington, where they all apparently still live. Scales and Topaz separated in 1994. There is nothing in the record to indicate that Scales has ever treated Petitioner as other than his own son.

On January 12, 1996, Petitioner was convicted in the Superior Court for King County, Washington, of a violation of the Uniform Controlled Substances Act, Wash. Rev. Code S 69.50, for possession with intent to deliver cocaine. On February 6, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, charging Petitioner as deportable under INA S 241(a)(2)(A)(iii), as an alien convicted of an aggravated felony.6

At his deportation hearing, Petitioner conceded that he was a citizen of the Philippines, and that he was deportable as an alien convicted of an aggravated felony. On appeal to the BIA, however, Petitioner contended that he is actually a U.S. citizen, based on "the principle that children born during a valid marriage are presumed offspring of that marriage." Petitioner also argued that it was possible that Scales was his natural father. The BIA rejected his arguments on the merits, citing an affidavit of non-paternity that his father had signed in order to obtain an immigrant visa for Petitioner when the family moved to the United States in 1979. In the affidavit, Scales stated that he was not Petitioner's natural father, that his wife was pregnant at the time she and Scales met, and that he "accept[ed] [Petitioner] as [his] own son in every legal sense permissible, but [ ] did not make any attempts of making a claim for U.S. citizenship for him at this time or at any other time."

The BIA reasoned that, in order "to acquire United States citizenship at birth there must be a blood relationship between the child and the parent through whom citizenship is claimed," citing the Foreign Affairs Manual of the State Department. Because there was no evidence in the record that Petitioner was Scales' biological child, the BIA dismissed the appeal. The BIA further rejected Petitioner's claim for relief under INA S 212(c), citing, inter alia, AEDPAS 440(d) and Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (B.I.A. 1996, A.G. 1997) (holding that AEDPA S 440(d) applied retroactively to bar S 212(c) relief).

Standard of Review

Where, as here, the BIA conducts a de novo review of the record, our review is limited to the decision of the BIA, except to the extent that the Immigration Judge's decision is expressly adopted by the Board. See Ghaly v. INS , 58 F.3d 1425, 1430 (9th Cir. 1995). "Factual determinations of the BIA are reviewed under the substantial evidence standard, and are upheld unless the evidence compels a contrary conclusion." Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir. 1999) (internal quotation marks and citation omitted). The BIA's determination of purely legal questions regarding the INA is reviewed de novo. See Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997).

Analysis

" `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.' " United States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th

Page 1163

Cir.) (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995)), cert. denied, 525 U.S. 976 (1998). In 1977, the year of Petitioner's birth, the applicable statute provided, inter alia, that a person shall be a national and citizen of the United States at birth who is born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its out lying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States . . . may be included in order to satisfy the physical-presence requirement of this paragraph.

8 U.S.C. S 1401(a)(7) (1976) (redesignated in 1978 as S 1401(g)). In addition, 8 U.S.C. S 1101 provided:

The term "child" means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or else where, and . . . a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.

8 U.S.C. S 1101(c)(1) (1976). Petitioner contends that, under the law of Washington, where the family has resided since Petitioner was 11 years old, there is a presumption that a man is the natural father of a child born during marriage. See Wash. Rev. Code S 26.26.040(1) (1986).7 He thus argues that he was "legitimated" for purposes of S 1101(c)(1) and therefore meets the citizenship requirement of S 1401(a)(7) of being born of a citizen parent.

The government, on the other hand, points to Scales' affidavit of non-paternity and Petitioner's own admission in his deportation hearing that he is a Philippine citizen as proof of Petitioner's alienage. In deportation proceedings, the INS has the burden of establishing the facts supporting deportability by "clear, unequivocal, and convincing evidence. " Woodby v. INS, 385 U.S. 276, 277 (1966); see also Murphy v. INS, 54 F.3d 605, 608 (9th Cir. 1995). Evidence of foreign birth, however, gives rise to a rebuttable presumption of alienage, and the burden then shifts to the petitioner to prove citizenship. See Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir. 1981); see also...

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