Villegas-Sarabia v. Johnson, Cv. No. 5:15–CV–122–DAE.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtDAVID ALAN EZRA, Senior District Judge.
Citation123 F.Supp.3d 870
Parties Leonardo VILLEGAS–SARABIA and Leonardo Villegas, Jr., Petitioner–Plaintiffs, v. Jeh JOHNSON, Secretary of the Department of Homeland Security, Enrique Lucero, Field Office Director for Immigration and Customs Enforcement, Leon Rodriguez, Director of U.S. Citizenship and Immigration Services, Mario Ortiz, San Antonio District Director for U.S. Citizenship and Immigration Services, and Reynaldo Castro, Warden of the South Texas Detention Center, Respondents–Defendants.
Decision Date17 August 2015
Docket NumberCv. No. 5:15–CV–122–DAE.

123 F.Supp.3d 870

Leonardo VILLEGAS–SARABIA and Leonardo Villegas, Jr., Petitioner–Plaintiffs,
v.
Jeh JOHNSON, Secretary of the Department of Homeland Security, Enrique Lucero, Field Office Director for Immigration and Customs Enforcement, Leon Rodriguez, Director of U.S. Citizenship and Immigration Services, Mario Ortiz, San Antonio District Director for U.S. Citizenship and Immigration Services, and Reynaldo Castro, Warden of the South Texas Detention Center, Respondents–Defendants.

Cv. No. 5:15–CV–122–DAE.

United States District Court, W.D. Texas, San Antonio Division.

Signed Aug. 17, 2015.


123 F.Supp.3d 874

Lance Edward Curtright, Juan Carlos Rodriguez, De Mott, McChesney, Curtright, Armendariz, San Antonio, TX, for Petitioner–Plaintiffs.

Gary L. Anderson, Assistant United States Attorney, San Antonio, TX, Lindsay Colbert Dunn, Washington, DC, for Respondents–Defendants.

123 F.Supp.3d 875

ORDER GRANTING IN PART AND DENYING IN PART THE GOVERNMENT'S MOTION TO DISMISS AND GRANTING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS

DAVID ALAN EZRA, Senior District Judge.

Before the Court is a Second Amended Petition for Writ of Habeas Corpus filed by Petitioner Leonardo Villegas–Sarabia ("Petitioner") (Dkt. # 4) and the Original Complaint filed by Petitioner and his father, Leonardo Villegas, Jr. ("Villegas, Jr.").1 Jeh Johnson, Secretary of the Department of Homeland Security ("DHS"); Enrique Lucero, Field Office Director for Immigration and Customs Enforcement; Leon Rodriguez, Director of U.S. Citizenship and Immigration Services ("USCIS"); Mario Ortiz, San Antonio District Director for USCIS; and Reynaldo Castro, Warden of the South Texas Detention Center (collectively, the "Government") have filed a Motion to Dismiss (Dkt. # 13). The Court held a hearing on the Petition and the Motion to Dismiss on August 6, 2015. At the hearing, Lance E. Curtright, Esq., represented Petitioner. Assistant United States Attorney Gary L. Anderson and Lindsay C. Dunn, Esq., represented the Government. After careful consideration of the Petition and the memoranda supporting and opposing the Government's Motion to Dismiss, the Court, for the reasons that follow, GRANTS IN PART AND DENIES IN PART the Government's Motion to Dismiss, DECLARES that the physical presence requirements under 8 U.S.C. § 1409, as that statute applied at the time of Petitioner's birth, violate the Constitution's guarantee of equal protection under the Fifth Amendment, and GRANTS Petitioner's Petition for Writ of Habeas Corpus.

BACKGROUND

The parties do not dispute the relevant facts of this case. Petitioner was born in Mexico on March 16, 1974. ("Am. Pet.," Dkt. # 4 ¶ 20.) Petitioner's father, Leonardo Villegas, Jr. ("Villegas, Jr."), was born in Eagle Pass, Texas, on August 10, 1955, and is thus a United States citizen by birth. (Id. ¶ 17; Dkt. # 13–2, Ex. G.) Villegas, Jr. lived in the United States continuously from his birth in 1955 through 1960, and from 1965 to the present. (Am.Pet. ¶ 17.) Petitioner's mother is a citizen of Mexico. (Id. ¶ 19.) Petitioner's parents were not married at the time of his birth. (Id. ¶ 21.) A few months after his birth, Petitioner moved with his parents to the United States and subsequently obtained lawful permanent resident status on July 11, 1985, at the age of 10. (Id. ¶ 24; Dkt. # 14 at 2.) Petitioner's parents married when Petitioner was 13, and Petitioner was "legitimated" by virtue of their marriage. (Am. Pet. ¶ 22; Dkt. # 14 at 2; Dkt. # 13–7, Ex. G.)

On November 30, 2011, Petitioner was indicted for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922. (Id. ¶ 25.) Petitioner pled guilty on June 28, 2012, and was sentenced to 30 months imprisonment, with credit for time served since the date of indictment, on June 14, 2013. (Dkt. # 13–2, Ex. B.) Between his plea and his sentencing, Defendant filed an application for a certificate of

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United States citizenship with USCIS, claiming that he was a derivative citizen through his father. (Am.Pet. ¶ 26.) USCIS denied Petitioner's application on December 12, 2012, on the basis that Petitioner's father was 18 years old at the time of Petitioner's birth and thus could not have met the statutory requirement that he have been physically present in the United States for ten years, five of which must have been after the age of 14, prior to Petitioner's birth. (Id. ¶ 27; Dkt. # 13–7, Ex. G.) Petitioner filed a motion before USCIS to reopen the decision on December 7, 2014; as of May 8, 2015, that motion remained pending. (Dkt. # 14 at 2.)

On January 13, 2015, Petitioner was issued a Notice to Appear before an immigration judge for removal proceedings and transferred to the custody of DHS. (Dkt. # 14 at 3.) On January 21, 2015, Petitioner moved for reconsideration of his bond status before the immigration court. (Am.Pet. ¶ 33.) The immigration court held a custody redetermination hearing on January 29, 2015, at which the immigration judge determined that Petitioner should be held without bond pending his removal proceedings pursuant to 8 U.S.C. § 1226(c). (Dkt. # 13–2, Ex. B; Dkt. # 13–3, Ex. C; Dkt. # 13–4, Ex. D.) Petitioner appealed the immigration judge's denial of his motion for bond redetermination on March 23, 2015, arguing that he was not subject to mandatory detention because he is a U.S. citizen under a constitutional interpretation of the derivative citizenship laws. (Dkt. # 13–5, Ex. E.) His appeal was denied by the Board of Immigration Appeals ("BIA"). (Dkt. # 20 at 4 n. 3.) On May 28, 2015, the Immigration Judge issued an order that Petitioner be removed to Mexico, which remains pending on appeal to the BIA. (Dkt. # 17–1, Ex. A; Dkt. # 20 at 2 n. 1.) Petitioner remains in DHS custody.

On February 17, 2015, Petitioner and his father jointly filed an Original Complaint and Petition for Writ of Habeas Corpus. (Dkt. # 1.) In the Complaint and Petition, Petitioner claims that he is a United States citizen and therefore may not be detained under 8 U.S.C. § 1226(c), which provides for the detention of criminal aliens. Petitioner and his father also seek (1) an injunction requiring the USCIS to issue a certificate of citizenship to Petitioner, and (2) a declaration that 8 U.S.C. §§ 1401 and 1409, as those statutes applied to them in 1974, are unconstitutional, and that Petitioner is a citizen of the United States.

On April 24, 2015, the Government filed a Motion to Dismiss. (Dkt. # 13.) After Petitioner filed a Response and the Government filed its Reply, the Court ordered the Government to file a supplemental response addressing Petitioner's equal protection claim. (Dkt. # 16.) The Government filed its supplemental briefing on June 10, 2015, and Petitioner filed a Response to the supplemental briefing on June 24, 2015. (Dkt. 17, 20.) Finally, Petitioner filed a notice of new case law on July 10, 2015, to which the Government responded on August 4, 2015. (Dkt. 22, 24.)

DISCUSSION

In his habeas petition, Petitioner argues that his detention by DHS under 8 U.S.C. § 1226 is unlawful because he is a United States citizen. Petitioner's claim of citizenship is based on his argument that the physical presence requirements imposed on unmarried citizen parents of foreign-born children under 8 U.S.C. § 1409, as that statute applied at the time of his birth, unconstitutionally discriminate on the basis of gender in violation of the Fifth Amendment's guarantee of equal protection.2 Under § 1409(c), a child born

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abroad to an unwed citizen mother and a non-citizen father acquired citizenship at birth if the mother had previously been physically present in the United States for a continuous period of one year. 8 U.S.C. § 1409(c) (1974). By contrast, under § 1409(a), which incorporates the physical presence requirements of 8 U.S.C. § 1401(a)(7), a child born abroad to an unwed citizen father and a non-citizen mother acquired citizenship at birth only if the father was previously physically present in the United States for ten years, five of which must have been after the age of 14. 8 U.S.C. §§ 1401(a)(7), 1409(a) (1974).3 Petitioner contends that this gender-based difference violates equal protection, and that the appropriate remedy is to extend the benefits of unmarried citizen mothers of foreign-born children under § 1409(c) to unmarried citizen fathers. Petitioner argues that under this constitutional interpretation of the statutes in question, he is a United States citizen, and his detention as an alien is therefore unlawful.

Additionally, both Petitioner and Villegas, Jr. seek a declaratory judgment that § 1409 is unconstitutional and that Petitioner is a citizen of the United States. Finally, they seek an injunction requiring USCIS to issue Petitioner a certificate of citizenship.

I. Jurisdiction

A. Habeas Petition

The posture in which Petitioner's claim is presented requires the Court to first determine whether it has jurisdiction to hear his habeas petition. The REAL ID Act of 2005, Pub. L. 109–13, 119 Stat. 302, governs judicial review of administrative removal orders. See Jean v. Gonzales, 452 F.3d 392, 396 (5th...

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1 practice notes
  • Villegas-Sarabia v. Sessions, No. 15-60639 Consolidated with No. 15-50993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 2017
    ...decision did not grant Villegas-Sarabia new rights, but merely confirmed his pre-existing citizenship. Villegas-Sarabia v. Johnson, 123 F.Supp.3d 870, 895 (W.D. Tex. 2015).10 Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) ).11 Id.......
1 cases
  • Villegas-Sarabia v. Sessions, No. 15-60639 Consolidated with No. 15-50993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 2017
    ...decision did not grant Villegas-Sarabia new rights, but merely confirmed his pre-existing citizenship. Villegas-Sarabia v. Johnson, 123 F.Supp.3d 870, 895 (W.D. Tex. 2015).10 Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) ).11 Id.......

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