United States v. Trevino Garcia
| Decision Date | 14 April 1971 |
| Docket Number | No. 30745 Summary Calendar.,30745 Summary Calendar. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe TREVINO GARCIA, and Roberto Trevino Garcia, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas G. Sharpe, Jr., Brownsville, Tex. (court-appointed), for Guadalupe Garcia.
Emilio Crixell, Brownsville, Tex. (court-appointed), for Roberto Garcia.
Anthony J. P. Farris, U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
In order to vitiate their conviction for illegally entering the United States after previous deportation under 8 U.S.C.A. § 1326 (1970), appellants assert on this appeal that they are citizens of the United States. Appellants' mother, a citizen of the United States, moved to Mexico with her parents at age nineteen and subsequently married a Mexican national. Appellants were thereafter born in Mexico and have now attained the ages of twenty-one and twenty-seven.
It is undisputed that appellants cannot meet the requirements of citizenship as set out in the Nationality Act of 1940, § 201 (now 8 U.S.C.A. § 1401 (1970)). They assert, however, that § 201(g) (i) (now 8 U.S.C.A. § 1401(a) (7)) is unconstitutional since it does not discriminate between those who voluntarily leave the United States and those who leave involuntarily. This contention cannot be sustained. The Congress in defining citizenship has gone considerably beyond the express provisions of the Constitution. The Constitution does not mention the citizenship status of persons born outside the United States. See U.S.Const. Amend. XIV, § 1. Thus the Congress has a completely free hand in defining citizenship as it relates to persons born abroad. See Gonzalez deLara v. United States, 439 F.2d 1316 (5th Cir. 1971); Uribe-Temblador v. Rosenberg, 423 F.2d 717 (9th Cir. 1970).
* Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I (5th Cir. 1970).
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...previous holding that Congress has a free hand in defining the citizenship of children born abroad. Id., citing, United States v. Trevino Garcia, 440 F.2d 368 (5th Cir.1971). Moreover, the Villanueva court drew guidance from the Supreme Court statement in Rogers v. Bellei, 401 U.S. 815, 91 ......
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...defining citizenship as it relates to persons born abroad." Villanueva-Jurado, supra, 482 F.2d at 887, quoting United States v. Trevino Garcia, 440 F.2d 368, 369 (5th Cir.1971). Plaintiff attempts to distinguish Villanueva-Jurado on two grounds. First, she notes that the case was decided tw......
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