U.S. v. Flores-Villar

• Decision Date: 06 August 2008
• Docket Number: No. 07-50445.,07-50445.
• Citation: 536 F.3d 990
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben FLORES-VILLAR, Defendant-Appellant.

536 F.3d 990

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

No. 07-50445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2008.

Filed August 6, 2008.

Elizabeth M. Barros, Assistant Federal Public Defender, San Diego, CA, for the defendant-appellant.

William A. Hall, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-06-00592-BTM.

Before: CYNTHIA HOLCOMB HALL, PAMELA ANN RYMER, and ANDREW J. KLEINFELD, Circuit Judges.

RYMER, Circuit Judge:

Ruben Flores-Villar raises a challenge under the equal protection component of the Fifth Amendment's due process clause on the basis of age and gender to two former sections of the Immigration and Nationality Act, 8 U.S.C. §§ 1401(a)(7) and 1409 (1974), which impose a five-year residence requirement, after the age of fourteen, on United States citizen fathers—but not on United States citizen mothers— before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen. This precise question has not been addressed before, but the answer follows from the Supreme Court's opinion in Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). There the Court held that § 1409's legitimation requirements for citizen fathers, but not for citizen mothers, did not offend principles of equal protection. Assuming, as the Court did in Nguyen, that intermediate scrutiny applies to Flores-Villar's gender-based claim and rational basis review applies to his age-based claim, we conclude that the residence requirements of §§ 1401(a)(7) and 1409 survive. As this is what the district court held in a published opinion, United States v. Flores-Villar, 497 F.Supp.2d 1160 (S.D.Cal.2007), and we see no other error, we affirm.

I

Flores-Villar was born in Tijuana, Mexico on October 7, 1974 to Ruben Trinidad Floresvillar-Sandez, his United States citizen biological father who was sixteen at the time, and Maria Mercedes Negrete, his non-United States citizen biological mother. Floresvillar-Sandez had been issued a Certificate of Citizenship on May 24, 1999 based on the fact that his mother—Flores Villar's paternal grandmother—is a United States citizen by birth.

His father and grandmother brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father. Floresvillar-Sandez is not listed on Flores-Villar's birth certificate, but he acknowledged Flores-Villar as his son by filing an acknowledgment of paternity with the Civil Registry in Mexico on June 2, 1985.

On March 17, 1997 Flores-Villar was convicted of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960; and on June 16, 2003 he was convicted of two counts of illegal entry into the United States in violation of 8 U.S.C. § 1325. He was removed from the United States pursuant to removal orders on numerous occasions: October 16, 1998, April 16, 1999, June 4, 1999, June 4, 2002, October 20, 2003, and March 28, 2005.

He was arrested again on February 24, 2006, and this time was charged with being a deported alien found in the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b). He sought to defend on the footing that he believed he was a United States citizen through his father. Meanwhile, Flores-Villar filed an N-600 application seeking a Certificate of Citizenship, which was denied on the ground that it was physically impossible for his father, who was sixteen when Flores-Villar was born, to have been present in the United States for five years after his fourteenth birthday as required by § 1401(a)(7). The government filed a motion in limine to exclude evidence of derivative citizenship for the same reason, which the district court granted. The court denied Flores-Villar's corresponding motion in limine, to be allowed to present evidence that he believed he was a United States citizen.

The district court found Flores-Villar guilty following a bench trial on stipulated facts.¹ It denied his motion for judgment of acquittal. Flores-Villar timely appeals his conviction.

II

When Flores-Villar was born, § 1401(a)(7) provided, in relevant part:

(a) The following shall be nationals and citizens of the United States at birth:

. . .

(7) a person born outside the geographic 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.

8 U.S.C. § 1401(a)(7) (1974). Section 1409 provided:

(a) The provisions of paragraphs (3) to (5) and (7) of section 1401(a) of this title, and of paragraph (2) of section 1408, of this title shall apply as of the date of birth to a child born out of wedlock . . . if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

. . .

(c) Notwithstanding the provision of subsection (a) of this section, a person born . . . outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and 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(a), (c) (1974).

Thus, if a United States citizen father had a child out of wedlock abroad, with a non-United States citizen mother, the father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child. But a United States citizen mother had to reside in the United States for a continuous period of only one year prior to the child's birth to pass on citizenship. It is this difference that Flores-Villar claims makes an impermissible classification on the basis of gender and age.

In Nguyen, the United States citizen father of a child born in Vietnam to a Vietnamese mother challenged § 1409's imposition of different rules for obtaining citizenship depending upon whether the one parent with American citizenship is the mother or the father. There, the father complained about the affirmative steps a citizen father, but not a citizen mother, was required by § 1409(a)(4) to take: legitimation; a declaration of paternity under oath by the father; or a court order of paternity. Assuming, without deciding, that the intermediate level of scrutiny normally applied to a gender-based classification applies even when the statute is within Congress' immigration and naturalization power, 533 U.S. at 61, 121 S.Ct. 2053, and drawing on Justice Stevens's prior opinion in Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998), the Court identified two important governmental interests substantially furthered by § 1409's distinction between citizen fathers and citizen mothers. The first is "assuring that a biological parent-child relationship exists." Id. at 62, 121 S.Ct. 2053. Mothers and fathers are not similarly situated in this respect; the relation is verifiable from the birth itself in the case of the mother, while a father's biological relationship to the child is not so easily established. The second interest is ensuring "that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States." Id. at 64-65, 121 S.Ct. 2053. The mother knows that the child is in being and has immediate contact at birth such that an opportunity for a meaningful relationship exists, whereas, as the Court put it, "[t]he same opportunity does not result from the event of birth, as a matter of biological inevitability, in the case of the unwed father." Id. at 65, 121 S.Ct. 2053. Unlike an unwed mother, there is no assurance that the father and his biological child will ever meet, or have the kind of contact from which there is a chance for a meaningful relationship to develop. The Court emphasized that Congress need not ignore these realities for purposes of equal protection, and found that the means chosen—additional requirements for an unwed citizen father to confer citizenship upon his child—are substantially related to the objective of a relationship between parent and child, and in turn, the United States. Id. at 66, 121 S.Ct. 2053.

Although the means at issue are different in this case—an additional residence requirement for the unwed citizen father—the government's interests are no less important, and the particular means no less substantially related to those objectives, than in Nguyen.² The government argues that avoiding stateless children is an important objective that is substantially furthered by relaxing the residence requirement for women because many countries confer citizenship based on bloodline (jus sanguinis) rather than, as the United States does, on place of birth (jus soli). We explained the conundrum in Runnett v. Shultz:

One obvious rational basis for a more lenient policy towards illegitimate children of U.S. citizen mothers is that illegitimate children are more likely to be "stateless" at birth. . . . As the government notes, if the U.S. citizen mother is not a dual national, and the illegitimate child is born in a country that does not recognize citizenship by jus soli (citizenship determined by place of birth) alone, the child can acquire no...