USA. v. Aguilar, AHUMADA-AGUILAR

• Decision Date: 02 September 1999
• Docket Number: AHUMADA-AGUILAR,No. 96-30065,96-30065
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICARDO, aka Ricardo Ahumada; aka Ricardo Alfonso Hernandez, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1121

189 F.3d 1121 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICARDO AHUMADA-AGUILAR, aka Ricardo Ahumada; aka Ricardo Alfonso Hernandez, Defendant-Appellant.

No. 96-30065

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 5, 1996

Memorandum Filed September 19, 1997

Withdrawn October 2, 1998

Decided September 2, 1999

Jay W. Stansell and Michael Filipovic, Assistant Federal Public Defenders, Seattle, Washington, for the defendant appellant.

Donald M. Reno, Jr., Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-95-00339-1-TSZ.

Before: Mary M. Schroeder, Arthur L. Alarcon, and Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Schroeder; Dissent by Judge Kleinfeld

ORDER

SCHROEDER, Circuit Judge:

The panel as constituted above has voted to grant the petition for rehearing and the attached opinion is ordered filed.

OPINION

Ricardo Ahumada-Aguilar appeals his conviction on two counts of illegal reentry by an alien with prior felony convictions, 8 U.S.C. S 1326(a) and (b)(1). Ahumada-Aguilar argues that he is not an alien because his father was a United States citizen at the time of Ahumada-Aguilar's birth in Mexico to a Mexican citizen mother. The controlling statute provides that in the case of a child born "out of wedlock" whose father is a U.S. citizen and mother is an alien, the child to establish citizenship must show that the putative father has agreed to provide financial support to the child, and has acknowledged paternity or that paternity has been legally declared. See 8 U.S.C. S 1409(a)(3) and (4). There are no such requirements where the child is born to a U.S. citizen mother and alien father. See id. S 1409(c). Because Ahumada-Aguilar failed to satisfy the provisions of S 1409(a)(3) and (a)(4), the district court concluded that Ahumada-Aguilar is not a U.S. citizen. He contends that he is entitled to citizenship because S 1409(a)(3) and (a)(4) are unconstitutional as violative of his now deceased father's equal protection rights. We agree because a majority of the U.S. Supreme Court has effectively so declared. See Miller v. Albright, 118 S. Ct. 1428 (1998).

A panel consisting of Judges Alarcon, Norris, and Kleinfeld initially filed an unpublished disposition in this case affirming the district court on September 19, 1997. Following a petition for rehearing, the panel withdrew submission of the case to await the Supreme Court's decision in Miller. In the meantime, Judge Norris retired from the court, and Judge Schroeder was drawn to take his place on the panel. Having now considered the separate opinions in Miller , we reverse Ahumada-Aguilar's conviction. Because we resolve Ahumada-Aguilar's equal protection claim in his favor, we need not reach the other issues he raises on appeal.

FACTS

According to her affidavit that is not contested, Ahumada Aguilar's mother, Genoveva Hernandez, met Frederick J. Deutenberg in a restaurant in Nogales, Mexico in late December 1970. At that time, she was 19 years old and a citizen of Mexico. Deutenberg was 50 years old and a citizen of the United States of America. Hernandez and Deutenberg traveled throughout the United States from January to June 1971.

Sometime during the spring of 1971, Hernandez became pregnant. Deutenberg was the only person with whom she had sexual relations in 1971. When she told him that she was pregnant, Deutenberg became angry. Hernandez told Deutenberg that she could not continue to travel from place to place and that she would run away when she had the opportunity. Sometime thereafter, he gave Hernandez a small suitcase and $75.00 to purchase a ticket to Mexico.

Hernandez returned to Mexico late that summer. Ahumada Aguilar was born on December 22, 1971 in Guadalajara, Mexico. In late 1972 or 1973, Hernandez went to the American consulate in Guadalajara to seek help in locating Deutenberg, but did not receive any assistance in her search. Hernandez entered the United States in 1976 accompanied by Ahumada-Aguilar. She continued in her attempts to find Ahumada-Aguilar's father by scanning phone books to see if she could locate Deutenberg. She was unsuccessful.

In 1985, Hernandez married a United States citizen and gained legal residency. She assisted Ahumada-Aguilar in obtaining a permanent resident alien registration card when he was 13 years old, based on her legal immigration status. Hernandez made a further attempt to locate Deutenberg by contacting the FBI. She was advised the FBI could not help her without a court order.

On July 15, 1987, Hernandez applied for public assistance funds. She listed "Frederick Duttenberg" [sic] as Ahumada-Aguilar's father. She also agreed to assist the welfare department in identifying Deutenberg and establishing paternity in order to force him to accept financial responsibility for his son. Hernandez and her son did not locate Deutenberg, but eventually learned he had died on April 17, 1994. They obtained a copy of his death certificate that is in this record, as is a copy of the certificate of his birth in Philadelphia.

On December 6, 1990, Ahumada-Aguilar was convicted in a state court in Tulare County, California of the crime of possession of cocaine, a felony. On October 10, 1991, while he was in custody for a traffic offense in Mount Vernon, Washington, Ahumada-Aguilar was interrogated by Darryl Essing, a United States Border Patrol Agent. Agent Essing prepared and served an order to show cause ("OSC") on Ahumada-Aguilar. The OSC required Ahumada-Aguilar to demonstrate why he should not be deported as the result of his prior conviction for possession of cocaine.

On November 18, 1991, Ahumada-Aguilar appeared at his deportation hearing. He admitted that he had been convicted of possession of cocaine. The immigration judge ordered that he be deported. He was deported two days later. Ahumada-Aguilar returned to the United States without the prior approval of the Attorney General. He was again deported on or about December 9, 1994. Following that date, Ahumada-Aguilar again reentered the United States without the permission of the Attorney General.

On June 7, 1995, Ahumada-Aguilar was indicted on two counts of illegally entering the United States after deportation as a convicted felon in violation of 8 U.S.C. S 1326(a) and (b)(1).¹ Ahumada-Aguilar filed a motion to dismiss the indictment, arguing that he was not subject to deportation because he is a United States citizen pursuant to 8 U.S.C.S 1401(g) and S 1409(a). Ahumada-Aguilar asserted that 8 U.S.C. S 1409(a) denies the equal protection rights of a U.S. citizen father, who faces more hurdles than a mother in passing U.S. citizenship to children.

The district court denied the motion. The district court held that Ahumada-Aguilar's equal protection argument was foreclosed by this court's 1995 decision in Ablang v. Reno, 52 F.3d 801 (9th Cir. 1995). The prosecutor then moved in limine to bar the defense from presenting evidence to the jury that Ahumada-Aguilar is a U.S. citizen to rebut the Government's evidence that he was an alien when he was deported. The court requested the defense to make an offer of proof regarding whether Ahumada-Aguilar met the evidentiary requirements of S 1409(a).

Based on this offer of proof, which included the mother's affidavit, the district court granted the Government's motion to preclude Ahumada-Aguilar from offering any evidence at trial to support his affirmative defense that he was a U.S. citizen and not an alien. The court found that Deutenberg was a U.S. citizen at the time Ahumada-Aguilar was born and that Deutenberg was Ahumada-Aguilar's biological father. Thus, the court concluded that Ahumada-Aguilar satisfied the requirements of S 1409 (a)(1) and (a)(2).

The court ruled, however, that the citizenship defense could not be presented because Ahumada-Aguilar could not produce evidence that Deutenberg had agreed in writing to provide financial support for Ahumada-Aguilar until he reached the age of 18, as required by S 1409(a)(3). The court also found that Ahumada-Aguilar had failed to offer any proof to fulfill S 1409(a)(4) that (1) Ahumada-Aguilar had been legitimated under the law of his residence or domicile, (2) his U.S. citizen father had acknowledged paternity in writing under oath, or (3) a competent court had ruled that Deutenberg was Ahumada-Aguilar's father. After a bench trial based on stipulated facts, the district court found Ahumada-Aguilar guilty on both counts alleged in the indictment.

DISCUSSION

"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." Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990). A child born out of wedlock to a U.S. citizen father and an alien mother is subject to 8 U.S.C. S 1409(a). This section provides:

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person's birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years

(A) the person is legitimated under the law of the person's residence or domicile,

(B) the father acknowledges paternity of the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

8 U.S.C. S 1409(a).² When a child is born...