U.S. v. Viramontes-Alvarado

• Citation: 149 F.3d 912
• Decision Date: 24 June 1998
• Docket Number: No. 96-10576,VIRAMONTES-ALVARAD,D,96-10576
• Parties: 98 Cal. Daily Op. Serv. 4877, 98 Daily Journal D.A.R. 6863 UNITED STATES of America, Plaintiff-Appellee, v. Hector Alonzoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 912

149 F.3d 912

98 Cal. Daily Op. Serv. 4877, 98 Daily Journal

D.A.R. 6863

UNITED STATES of America, Plaintiff-Appellee, v. Hector Alonzo VIRAMONTES-ALVARADO, Defendant-Appellant.

No. 96-10576.

United States Court of Appeals,

Ninth Circuit.

Argued Oct. 9, 1997.

Submission Withdrawn Dec. 8, 1997.

Resubmitted June 9, 1998.

Decided June 24, 1998.

Jon M. Sands, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellant.

Tim Holtzen, Assistant U.S. Attorney, Phoenix, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Charles L. Hardy, District Judge, Presiding. D.C. No. CR-96-00058-CLH.

Before: HUG, Chief Judge, WALLACE and HALL, Circuit Judges.

HUG, Chief Judge:

On August 28, 1996, Hector Viramontes-Alvarado was convicted of illegal reentry of an alien into the United States after deportation subsequent to a felony conviction in violation of 8 U.S.C. § 1326(b)(1). He contends that he is not an alien because he is the illegitimate son of an American citizen father.

Viramontes-Alvarado appeals his conviction on several grounds: (1) the denial of derivative citizenship violates the equal protection clause; (2) the requirement that a U.S. citizen father physically bring an illegitimate child into his home violates the Due Process right to organize one's family arrangements; (3) the jury instructions given with respect to the establishment of paternity under California law were erroneous; (4) the trial court erred in denying his motion for judgment of acquittal based on insufficient evidence for the jury to conclude that he was an alien; and (5) the sentence enhancement for reentry after deportation subsequent to a conviction for an aggravated felony was incorrectly applied to him.

We have jurisdiction over the judgment pursuant to 28 U.S.C. § 1291 and the sentence pursuant to 18 U.S.C. § 3742. We affirm the conviction, but vacate the sentence as not in compliance with United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir.1997) (per curiam).

I.

A United States Border Patrol agent discovered Viramontes-Alvarado at the Yuma County Jail on December 30, 1995. Viramontes-Alvarado told the agent that he was a citizen of Mexico by birth. He described his last entry into the United States as an illegal entry. Records and testimony confirm that an immigration court ordered Viramontes-Alvarado deported from the United States on September 14, 1995, following a felony conviction pursuant to 8 U.S.C. § 1326(b)(1).

The issue at trial was whether Viramontes-Alvarado was an American citizen by his birth to an American citizen father, Benjamin "Tony" Viramontes, and therefore could not be guilty of illegal reentry. At trial Tony Viramontes testified that he had an intimate relationship with Armida Alvarado, a Mexican citizen and Appellant's mother, that the couple never married, and that Viramontes-Alvarado was his son. Armida Alvarado also testified that Viramontes-Alvarado was Tony's son.

Tony's testimony reveals that though he visited Viramontes-Alvarado and his mother in Mexico for short periods of time when Viramontes-Alvarado was an infant, Tony never lived with them in Mexico nor did Viramontes-Alvarado live with Tony in the United States while he was a minor. Furthermore, while Tony did not deny that Viramontes-Alvarado was his son to people in Mexico, he never told anyone in California.

The district court instructed the jury that in order to find that Viramontes-Alvarado derived citizenship from his father, his father must have legitimated him under California law and that this required Tony Viramontes to openly and publicly admit paternity as well as physically bring Viramontes-Alvarado into his home before his son reached the age of 22. The jury necessarily found Viramontes-Alvarado had not established derivative citizenship, in returning a verdict of guilty for illegal reentry subsequent to Viramontes-Alvarado's deportation.

The district court sentenced Viramontes-Alvarado to 84 months in custody followed by 36 months of supervised release. In determining Viramontes-Alvarado's sentence, the district court calculated his base level in accord with that for aggravated felons. This calculation increased his base level by 16 levels.

II.

" '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.' " Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.1995) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir.1990)). Viramontes-Alvarado was born on September 12, 1962. Therefore, we apply the statutes applicable on that date.

In 1962, 8 U.S.C. § 1401(a)(7) stated 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.

At that time, Section 1401(g) was applicable, pursuant to 8 U.S.C. § 1409(a), 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 years by legitimation." A child who is unmarried and less than 21 years of age can be legitimated:

under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.

8 U.S.C. § 1101(b)(1)(C). ¹

Viramontes-Alvarado conceded that he could not satisfy the legitimation requirements of Mexico. Therefore, we evaluate whether the requirements of California, where his father resided at the time, were met.

California law regarding legitimation at the time Viramontes-Alvarado was born was Cal. Civ.Code § 230. Section 230 provided that:

The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.

The interpretation of Cal. Civ.Code § 230 is governed by the interpretation of the California courts. See Louie Wah You v. Nagle, 27 F.2d 573 (9th Cir.1928). In In re De Laveaga's Estate, 142 Cal. 158, 169, 75 P. 790, 794 (1904), the California Supreme Court, interpreting section 230, stated that

[t]he father of an illegitimate child in order to adopt him as a legitimate must not only publicly acknowledge him as his own, but must receive him into his family, and if he have a wife, with her consent.... [H]aving a family, or at least a home, in which he can receive him is one of the cardinal conditions prescribed for such adoption.

In light of California case law, we noted that to satisfy § 230, "the child must reside with the father." Kaliski v. District Dir., I.N.S., 620 F.2d 214, 216 (9th Cir.1980).

III.

Viramontes-Alvarado contends that it is an equal protection violation to require the bringing of an illegitimate child into one's home for the purpose of legitimation. The crux of his claim is that this requirement discriminates against illegitimate children born outside of the United States to U.S. citizen fathers. ² We disagree.

"[J]udicial inquiry into immigration legislation is limited in deference to the 'long recognized' power of the political branches ... to 'expel or exclude aliens.' " Ablang, 52 F.3d at 804 (citing Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977)). In cases alleging constitutional infirmities in immigration laws, this court must determine if there is a "facially legitimate and bona fide reason" for enacting a discriminatory rule. Ablang, 52 F.3d at 804.

In Fiallo, the Supreme Court upheld an exclusion of illegitimate children and their natural fathers from special preference immigration status given to a child or parent of a U.S. citizen or lawful permanent resident under the Immigration and Nationality Act of 1952. The Court held that "Congress obviously has determined that preferential status is not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most cases of close family ties as well as a concern with the serious problems of proof that usually lurk in paternity determinations." Fiallo, 430 U.S. at 799, 97 S.Ct. 1473. This analysis applies equally to the case at hand. The requirements for establishing legitimacy as a prerequisite to a finding of derivative citizenship based on the citizenship of the child's father is rationally related to the legitimate interest of regulating the conferral of derivative citizenship.

Viramontes-Alvarado also claims that the requirement that he physically reside with his father in order to be legitimized violates substantive due process. The Supreme Court in Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), recognized that "freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Id. at 499, 97 S.Ct. 1932 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974)). However, the requirement that an illegitimate child born outside of the United States reside with his citizen father in order to obtain derivative citizenship does not implicate this liberty interest.

We also reject...