Villegas-Sarabia v. Sessions
| Decision Date | 31 October 2017 |
| Docket Number | No. 15-60639 Consolidated with No. 15-50993.,15-60639 Consolidated with No. 15-50993. |
| Parties | Leonardo VILLEGAS-SARABIA, also known as Leonardo Villegas, Jr., Petitioner v. Jefferson B. SESSIONS, III, U.S. Attorney General, Respondent Leonardo Villegas-Sarabia; Leonardo Villegas, Jr., Petitioners-Appellees v. Elaine C. Duke, Acting Secretary, Department of Homeland Security; Enrique Lucero, Field Office Director for Immigration and Customs Enforcement; Leon Rodriguez, Director, United States Citizenship and Immigration Services; Mario Ortiz, San Antonio District Director for United States Citizenship and Immigration Services; Reynaldo Castro, Warden, South Texas Detention Center, Respondents-Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lance Edward Curtright, Esq., De Mott McChesney Curtright & Armendariz, L.L.P., San Antonio, TX, for Appellee Cross-Appellant.
Walter Manning Evans, Esq., Andrew C. MacLachlan, Senior Litigation Counsels, Office of Immigration Litigation, David J. Schor, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Gary Layton Anderson, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Appellant Cross-Appellee.
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
In the first of the cases consolidated in this appeal, Petitioners-Appellees Leonardo Villegas-Sarabia ("Villegas-Sarabia") and his father, Leonardo Villegas, Jr. ("Villegas"), seek review of the order of the Board of Immigration Appeals ("BIA") holding that Villegas-Sarabia, a Mexican citizen, is inadmissible to the United States and ineligible to adjust his citizenship status because his conviction for misprision of a felony is a crime involving moral turpitude. In the second case, the government appeals two aspects of the district court's decision: (1) that the differing physical presence requirements for unmarried U.S.-citizen mothers and such fathers in 8 U.S.C. §§ 1401 and 1409(c) violates equal protection and (2) that the remedy of the constitutional violation is extending citizenship to Villegas-Sarabia under 8 U.S.C. § 1409(c). We affirm the BIA's order in the first case and reverse the district court's judgment granting citizenship in the second case.
The facts of this case are not disputed by the parties. Leonardo Villegas-Sarabia was born in Mexico on March 16, 1974. At the time of his birth, his parents were not married, but Villegas, his father, was a United States citizen, who lived in the United States from the time he was born in 1955 through 1960, and again from 1965 to the present. In 1974, when Villegas-Sarabia was born, Villegas was 18 years old and had only been present in the United States for four years after he reached 14 years of age.1 At the time of Villegas-Sarabia's birth, his mother was a citizen of Mexico.
Villegas-Sarabia's parents married when he was 13 years old. He has lived in the United States continuously since he was a few months old, and in July 1985, he became a lawful permanent resident of the United States.
In November 2011, Villegas-Sarabia was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922. He pleaded guilty in June 2012 and was sentenced to a thirty-month term of imprisonment in June 2013. Between his plea and his sentencing, Villegas-Sarabia applied for citizenship, claiming that he was a United States citizen by virtue of his father's citizenship. At the time of Villegas-Sarabia's birth, his citizenship was governed by the 1970 version of 8 U.S.C. § 1401(a)(7), which granted U.S. citizenship to:
a person born outside 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.2
This provision applied expressly to married parents, but it was made applicable to unmarried parents under § 1409(a).3 Significant to this case, § 1409(c) granted an exception to unmarried mothers:
[N]otwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this chapter, 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 ... for a continuous period of one year.4
Applying these statutes, the United States Citizenship and Immigration Services denied Villegas-Sarabia's citizenship application, after determining that his father did not satisfy the residency requirements under § 1401(a)(7).
In January 2015, the Department of Homeland Security initiated removal proceedings based on Villegas-Sarabia's firearms conviction. In his appearance before the immigration judge ("IJ"), Villegas-Sarabia conceded that he was admitted to the United States as the child of a citizen and that he had been convicted of illegal possession of a firearm, but he denied that he was an alien or that he was subject to removal.5 Villegas-Sarabia argued that, because § 1409(c)'s discriminatory one-year exception covered only unmarried U.S.-citizen mothers it violated equal protection. He insisted that, under a constitutional reading of the statute, he was entitled to derivative citizenship.
In April 2015, the IJ determined that Villegas-Sarabia was not a citizen and sustained the removal charge. Villegas-Sarabia responded that he would seek an adjustment of status. The IJ held that Villegas-Sarabia's conviction for misprision of a felony was a crime involving moral turpitude ("CIMT"), making him inadmissible to the United States and ineligible for adjustment of his status.6 The IJ explained further that Villegas-Sarabia could only adjust his immigration status if he could obtain a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(h). Villegas-Sarabia's firearm conviction was an aggravated felony, however, statutorily barring him from seeking such a waiver. The IJ pretermitted Villegas-Sarabia's application for an adjustment of status, holding that he had committed a CIMT and therefore could not attempt to adjust his immigration status without a waiver. But Villegas-Sarabia's aggravated felony conviction barred him from seeking such a waiver.7
Villegas-Sarabia appealed the IJ's decision to the BIA, challenging the constitutionality of the disparate sex-based residency requirements of §§ 1401 and 1409(c). He argued in the alternative that, because misprision of a felony is not a CIMT, he is not required to obtain a waiver of inadmissibility to adjust his immigration status. In August 2015, a three-member panel of the BIA dismissed Villegas-Sarabia's appeal, holding that he was not a citizen under the statutes that were in place at the time of his birth and that the BIA lacked jurisdiction to address his constitutional challenge. The BIA also affirmed the IJ's holding that misprision of a felony is a CIMT. Villegas-Sarabia now seeks our review of the BIA's order holding that misprision of a felony is a CIMT.
In February 2015, Villegas and Villegas-Sarabia filed a joint complaint and habeas corpus petition, claiming that Villegas-Sarabia is a United States citizen and therefore not subject to detention and removal.8 They also sought a declaration that the disparate requirements of 8 U.S.C. §§ 1401 and 1409 are unconstitutional. The government filed a motion to dismiss in response to which the district court applied a heightened level of scrutiny and held that "the different physical presence requirements [in §§ 1401 and 1409 ] violate the Fifth Amendment's guarantee of equal protection." To remedy this constitutional violation, the district court extended § 1409(c)' s one-year continuous presence requirement applicable to unmarried U.S.-citizen mothers to unmarried U.S.-citizen fathers , then held Villegas-Sarabia to be an United States citizen.9
The government timely appealed and advanced two contentions: The district court erred (1) in holding that the distinction between unmarried mothers and unmarried fathers violated equal protection, and (2) in extending the one-year continuous residency requirement to unmarried fathers.
These consolidated appeals seek review of the BIA's order and the district court's ruling on the habeas petition. We address each in turn.
Villegas-Sarabia contends that the BIA erred in ruling that misprision of a felony is a CIMT, so that he should not be required to seek a waiver of inadmissibility to adjust his status pursuant to 8 U.S.C. § 1182(h). The government urges this court to defer to the BIA's reasonable decision that misprision of a felony is a CIMT.
"When considering a petition for review, this court has the authority to review only the BIA's decision, not the IJ's decision, unless the IJ's decision has some impact on the BIA's decision."10 If the BIA adopts the findings and conclusions of the IJ, this court may review the IJ's decision.11 Here, the BIA affirmed the IJ's findings and conclusions, so we may review both decisions.
We review the BIA's legal conclusions de novo but give "considerable deference to the BIA's interpretation of the legislative scheme."12 In appeals addressing whether a particular conviction is a CIMT, we give "Chevron deference to the BIA's interpretation of the term ‘moral turpitude’ and its guidance on the general categories of offenses which constitute CIMTs;" however, we review de novo the decisions of the BIA addressing whether a particular crime is a CIMT.13
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