U.S. v. Flores-Villar

• Decision Date: 16 May 2007
• Docket Number: No. 06cr0592 BTM.,06cr0592 BTM.
• Citation: 497 F.Supp.2d 1160
• Parties: UNITED STATES of America, Plaintiff, v. Ruben FLORES-VILLAR, Defendant.
• Court: U.S. District Court — Southern District of California

497 F.Supp.2d 1160

UNITED STATES of America, Plaintiff, v. Ruben FLORES-VILLAR, Defendant.

No. 06cr0592 BTM.

United States District Court, S.D. California.

May 16, 2007.

ORDER GRANTING MOTION IN LIMINE TO PRECLUDE EVIDENCE RE: DERIVATIVE CITIZENSHIP

MOSKOWITZ, District Judge.

The United States has filed a motion in limine to preclude evidence regarding Defendant's claim of derivative citizenship through his U.S. citizen father. For the reasons discussed below, the United States' motion is GRANTED.

I. BACKGROUND

Ruben Flores-Villar ("Defendant") was born on October 7, 1974 in Tijuana, Mexico. His biological mother, Maria Mercedes Negrete, is a citizen and national of Mexico. His biological father, Ruben Trinidad Floresvillar-Sandez ("Floresvillar"), was sixteen-years old when Defendant was born. A Certificate of Citizenship was issued to Floresvillar in 1989 based on the fact that his mother, Eva Carolina Sandez-Machado ("Sandez"), is a United States citizen.

Shortly after Defendant was born, he came to the United States to receive medical treatment. (Floresvillar Decl. (Def.'s Exh. C) ¶ 9.) After he was released from the hospital, he came to live with Floresvillar and Sandez in San Diego. (Id.) Defendant grew up with Floresvillar, Sandez, and Floresvillar's siblings in San Diego and Chula Vista. (Floresvillar Decl. ¶ 10.) Defendant had little contact with his biological mother who continued to live in Mexico. (Id. at ¶ 11.) In 1985, Floresvillar filed an acknowledgment of paternity with the civil registry in Tijuana. (Def.'s Exh. P.) Floresvillar claimed Defendant as a dependent and identified him as his son on his tax returns for years 1983, 1989, 1990, and 1991. (Def.'s Exh. S.)

Recently, Defendant applied for a Certificate of Citizenship under Sections 309(a) and 301(g) of the INA. The District Director denied the application on the ground that Defendant could not establish that his father, prior to his birth, had been physically present in the United States for at least ten years, five of which followed his fourteenth birthday, as required by former section 301(a)(7) of the INA. Defendant appealed the District Director's decision.

In a decision dated March 29, 2007, the Administrative Appeals Office ("AAO") dismissed the appeal. The AAO held that section 301(g) of the INA, as amended in 1986, required that Defendant's father have been physically present in the United States for only five years prior to the applicant's birth, two of which followed his fourteenth birthday. However, the AAO held that the evidence of record was not sufficient to establish that his father had met the physical presence requirement. In addition, the AAO held that the evidence in the record was insufficient to establish that Defendant's father agreed to support Defendant financially until he reached the age of eighteen, as required by section 309(a)(3) of the INA (added in 1986).

In a decision dated April 2, 2007, the AAO determined that it had misapplied the physical presence requirements of section 301(g) and reopened the matter for further consideration. The AAO held that, contrary to its prior decision, the applicable physical presence requirement was ten years, five of which followed his father's fourteenth birthday. The AAO explained that in its initial decision, the AAO failed to distinguish between section 23(d) of the Immigration Technical Corrections Act of 1988 (which provided that the 1986 amendment to section 301(g) of the Act applies to persons born on or after November 14, 1986) and section 23(e) (which governs when the 1986 amendments to section 309(a) apply). The AAO concluded that because Defendant's father was only sixteen at the time Defendant was born, he could not meet the applicable residency requirements.

II. DISCUSSION

The Government seeks the exclusion of evidence regarding Defendant's derivative citizenship claim on the ground that he cannot satisfy the transmission-of-citizenship requirements of INA §§ 309(a) and 301(g), 8 U.S.C. §§ 1409(a) and 1401(g). The Court agrees that even viewing the evidence in the light most favorable Defendant, no reasonable juror could find that Defendant could establish derivative citizenship through his citizen father. Therefore, any evidence of Defendant's father's citizenship, residency, or legitimating acts is not relevant.

A. Residence Requirement

When Defendant was born, the applicable law provided that a person shall be a national and a citizen of the United States at birth who is:

born outside of 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 outlying 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.

INA § 301(a)(7), 8 U.S.C. § 1401(a)(7) (later redesignated as INA § 301(g), 8 U.S.C. § 1401(g)). (Emphasis added.)

Pursuant to INA § 309(a), section 301(a)(7) was made applicable to children born out of wedlock to U.S. citizen fathers "if the paternity of such child is established while such child is under the age of twenty-one by legitimation." Legitimation could occur under the law of the child's residence or domicile or under the law of the father's residence or domicile. 8 U.S.C. § 1101(b)(1)(C).

In 1986, section 301(g) was amended, and the physical presence requirement was changed to "five years, at least two of which were after attaining the age of fourteen years." Immigration and Nationality Act Amendments of 1986, Pub.L. 99-653, 100 Stat. 3655, § 12. The 1986 amendments also amended section 309(a), adding additional requirements for the transmission of citizenship to a child born out of wedlock.¹ Id. at § 13.

The Immigration Technical Corrections Act of 1988 ("ITCA") clarified that "[t]he amendment made by section 12 [of the 1986 Act] shall app[y to persons born on or after November 14, 1986." Pub.L. 100-525, 102 Stat. 2609, § 23(d). The ITCA also provided that the new section 309(a) "shall apply to persons who have not attained 18 years of age as of the date of the enactment of this Act," and that the old section 309(a) shall apply to "any individual who has attained 18 years of age as of the date of the enactment of this Act," and "any individual with respect to whom paternity was established by legitimation before such date." Id. at § 23(e).

To determine which physical presence requirements apply here, the Court looks to section 23(d) of the ITCA, which provides that the new physical presence requirements apply to persons born on or after November 14, 1986. Because Defendant was born before November 14, 1986, he must show that prior to his birth, his father was physically present in the United States for not less than ten years, at least five of which were after attaining the age of fourteen years.

In light of the fact that Floresvillar was sixteen when Defendant was born, he could not have satisfied the requirement of physical presence in the United States for five years after attaining the age of fourteen years. Therefore, Floresvillar did not transmit U.S. citizenship to Defendant.

Defendant contends that the ITCA is unconstitutional because it operates retroactively to deprive people like Defendant of their vested right to citizenship.² However, the 1988 law only clarified the effect of the 1986 amendment and did not make the 1986 amendment inapplicable where it was otherwise applicable or vice versa. It has long been established that the law in effect at the time of the child's birth is to be applied in determining transmission of citizenship from a U.S. citizen parent. See, e.g., Rodriguez-Romero v. INS, 434 F.2d 1022 (9th Cir.1970) (per curiam), cert. denied, 401 U.S. 976, 91 S.Ct. 1199, 28 L.Ed.2d 326 (1971); Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995) ("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 Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir.1990)). Thus, the shortened residency requirements were never applicable to Defendant, and the 1988 law did not retroactively deprive Defendant of a vested right to citizenship.

Relying on Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), Defendant makes the alternate argument that his paternal grandmother's residency should be imputed to his father, who was a minor at the time of Defendant's birth. However, Cuevas-Gaspar is inapposite. In Cuevas-Gaspar, the issue was whether a parent's permanent residence status could be imputed to an unemancipated minor child for purposes of satisfying the cancellation of removal requirement that the alien had resided in the United States continuously for seven years "after having been admitted in any status." 8 U.S.C. § 1229b(a)(2). Here, the relevant requirement is that the father have resided in the United States for at least five years after the age of fourteen. Therefore, what Defendant asks us to do is either impute the grandmother's age at the time of Defendant's birth to Defendant's father or impute the fact that at the time Defendant was born the grandmother had resided in the United States for more than five years after she turned fourteen. Neither of these options is supported by the language of the statute or caselaw.

The residency requirement of section 301(g) is objective and straightforward. The Ninth Circuit has refused to apply the theory of constructive residence to transmission of citizenship cases, see Runnett v. Shultz, 901 F.2d 782 (9th Ch-.1990), and has never held that imputation of any kind would be proper in the context of transmission of citizenship. As provided in 8 U.S.C. § 1421(d), "A person may only be naturalized as a citizen of the United States in the manner and under the conditions...