Caution: For Wonks Only!
This post reviews the statutory history of a portion of U.S. citizenship law that applies to children born of U.S. citizens out-of-wedlock after January 13, 1941; if interpreted by the statute's plain meaning, Robinson Martinez acquired U.S. citizenship at birth; if adjudicated based on ad hoc assertions about blanket effect dates for citizenship laws at odds with the plain language of the laws and code, he is not a U.S. citizen .
"The Board," aka a single adjudicator, Roger Pauley, wrote two contradictory rulings, one on February 12, 2014 and another on December 4, 2014, based on the exact same facts.
Which one is right and why does this matter?
If you read the relevant statutes, as did Robinson Martinez, it would appear he acquired U.S. citizenship at birth by operation of law. "The law" producing this status requires a close reading of several statutes and underlying bills (and the effective dates). The single-authored Board of Immigration Appeals decision, relying on the plain meaning of the statute (8 U.S.C 1409 (b)) seems to have made the right determination in its February 12, 2014 decision, reiterating Robinson's reading of the law, pointing out the absence of a DHS objection to this, and remanding the case for evidentiary review and supporting Robinson's request for a change of venue for that purpose.
But on April 3, 2014, instead of implementing the order, Houston CCA immigration judge Saul Greenstein stood by his reversed order and, under a seemingly invented jurisdiction, sent the case back to his supervisors for review, depriving Robinson of his day in immigration court as previously ordered.
(I regret having to report this: IJ Greenstein was gracious in allowing my research assistant and me to observe hearings in his court at Houston CCA in 2013. His colleagues in that area thumbed their nose at the law requiring access. Richard Walton told the guards not to allow my assistant to enter. Mimi Yam cancelled hearings. And Clarease Yates locked us out. Greenstein made a genuine and much-appreciated effort to keep his courtroom open.)
This is a tough case, not because of the plain meaning of the statute, but because of erroneous statutory interpretations inferred by the Board and various agencies. They have been inventing a rule whereby the statute effective at the time of birth invariably determines one's citizenship status. This is demonstrably not true, and the echo chamber of administrative adjudicators and federal judges does not change this.
Some statutes confer citizenship at birth retroactively, discussed below; others exclude this. In Robinson's case, the statute in 1986 specifically referenced the earlier time frame for his mother's date of birth, thus rendering her and in turn, Robinson citizens at birth, provided the evidentiary record supports this.
The principle advancing the analysis here follows the plain meaning jurisprudence favored for statutory analysis more generally. I favor it because it is the approach most amenable to government transparency and hence accountability. If statutes mean whatever the DOJ attorneys or even judges believe suits their ideas of proper policy, independent of what the text says, then there is effectively no democracy, and no rule of law: we're stuck with whatever the folks in the robes say even when the plain meaning is entirely different. On balance, the decisions that hurt those in confinement are those that rely on prejudices and not the law in finding "absurd" results in the plain meaning of a text, thus depriving those Davids who are actually using the law to defend themselves any weapons at all against the government's Goliath.
Roger Pauley, BIA, Remand for change of venue and evidentiary hearing, 02-12-2014
Saul Greenstein, IJ, "Certifies" to BIA without hearing, 04-03-2014
Roger Pauley, BIA, Affirms legal analysis of Greenstein, 12-04-2014
Where Things Stand Now
Robinson was deported on December 12, 2014, without notice to his attorney and without time to file an appeal in federal court. The quick action appears to have been retaliation for Robinson's persistent criticisms of CCA, including sharing information with me that was widely circulated in coverage of CCA's exploitation of their ICE detainees. (He had been punished in other ways before this, including guards throwing away his legal documents during a transfer of him to Livingston.)
On February 22, 2015 Border Patrol arrested and charged Robinson with Illegal Reentry (8 USC 1326(a)(1)(b)(1)). He is being held at present in Brownsville, Texas, a classic example of how the prison industry uses deportation law to snare longtime residents for civil violations and then, when they return, fills up the federal prisons with people held on criminal immigration violations, a "crime" that is not only victimless but actually harms the general public. (Mainstream economists agree on the overall benefits of free labor movement and labor markets.)
Admittedly, this is not an easy case; but most cases of people who are long-time residents of the United States are not easy: the government is demanding a biographical profile that fits its arbitrary classifications of borders and documents, and is not responsive to people's actual relationships, a complex web of commitments, dangers, needs, and fantasies. The real problem is our fantasies about the importance of birth and family to membership in a political society, not failures of evidence, legal complexity, or life choices and imperatives.
That said, various components of the government are not up to the complexities of writing or understanding citizenship law. As has been said repeatedly by everyone from the Detention Watch Network to federal judge Richard Posner to immigration judge Dana Marks, the immigration courts are consistently unable to mete out decisions that comport with basic expectations of legality, much less justice.
The Facts: The Family Tree
The basic dispute on which the case hangs is whether Robinson's mother, Sara, was a U.S. citizen at the time of her birth in Mexico on July 4(!), 1952.
Her father, Gregario, was a U.S. citizen at birth in 1934; no one disputes this, nor that he and his descendants grew up in the vicinity of Mercedes, Texas, the site of his mother's birth.
Gregario was 17 years old at the time of Sara's birth in Mexico.
Sara was born out-of-wedlock to her mother, Maria.
Gregario's name is on Sara's birth certificate, and thus he legitimated her.
Maria and Gregario married in Hidalgo County, Texas in 1970.
Sara, then a resident of El Paso, gave birth to Robinson in Mexico in 1971.
She brought him back into the United States with her parents and they adopted him and raised him as their son and Sara's younger brother.
Robinson did not learn any of this until the U.S. government violated its public policy favoring preserving family relations and in 2010 put Robinson into removal proceedings.
The Law: Out-of-Wedlock Citizenship Law: 1941 to Present, Main Texts
Okay, it's a bit of a mess. The key point is that the U.S. Code reflects a 1986 amendment that reduced the time of residence in the United States necessary for a father to convey citizenship to a child born outside the United States from five to two years after the age of 14 and did not restrict its coverage to those born on or after its passage.
Public Law 99-653, passed on November 14, 1986, simply states at Sect. 12 "Section 301 (g) (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two"."
(Public Law 97-116, Dec. 29, 1981, changes the relevant section number of the 1952 INA from 301 (7)(a) to 301(g).)
Thus, according to the plain meaning of the 1952 INA, Public Law 414 (June 27, 1952), as amended by the 1986 Act (Public Law 100-653), anyone born out-of-wedlock from January 13, 1941 through at least November 14, 1986, would have their citizenship status determined by section 301 (g) and in turn by Sect. 12 as stated above.
At present 8 U.S.C 1409(b) states:
Except as otherwise provided in section 405, the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.So Robinson and his attorneys, and Pauley in February of 2014 are reading this and quite sensibly infer that Sara, Robinson's mother, was a U.S. citizen at birth and thus conveyed this status to Robinson, when she left her hometown of El Paso and gave birth to him in Mexico in 1971.
Crucially, the 1986 amendment to the Immigration and Naturalization Act does not restrict coverage of these changes to ONLY those born on or after November 14, 1986.
According to the plain text, therefore, as soon as the President signed PL 100-653, Sara acquired U.S. citizenship via her father Gregario and thereby transmitted U.S. citizenship to her son, Robinson.
The fact that this is the plain meaning of the 1986 text is reinforced by a 1988 INA "technical" amendment, which states that the 1986 amendment at section 12 "shall apply to persons born on or after November 14, 1986." (PL 100-525, "Effective Dates")
Public Law 100-525
October 24, 1988
Congress attempts a do-over.
Section (2) states that "the old section 309(a) shall apply-- (A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and (B) any individual with respect to whom paternity was established by legitimation before such date."
Sara was both well over 18 and also had her paternity established by legitimation before October 24, 1988.
Does this mean that Congress can retroactively apply in 1988 a citizenship rule to Sara that is at odds with the plain meaning of the statute it passed in 1986? If so, then Sara's citizenship status would be determined under the Sec. 301 (7) in effect in 1952, where by Gregario would have to have been been a U.S. resident until he was 19 years old for her to have acquired U.S. citizenship from his paternity. It appears as though someone in either the INS or Congress was seeing people legitimately claiming U.S. citizenship on the basis of the plain text of the 1986 Act and wanted to prevent this.
But they can't do this. Common sense indicates that it would be bizarre for Congress to tell Sara in 1986, we passed a law and now you are a U.S. citizen, and so are your children who may acquire this status from you under our citizenship laws, and then in 1988 to say, "We passed another law and, even though you did nothing wrong, we are retroactively changing the citizenship status of you and your son."
The law behind this common sense head scratcher is called the Ex Post Facto clause of the U.S. Constitution, or perhaps the Due Process clause.
Does it matter that neither Sara nor Robinson had any clue about any of this in this time frame? Not if the courts are going to be consistent with their rulings on Congress's plenary authority more generally. The courts have been very clear on the point that all that matters in citizenship laws is the texts thesmelves, not their coherence, disparate impacts, discrimination, or stupidity. Once Congress passes a 1986 law that makes Sara a U.S. citizen by operation of law, it is unconstitutional to change her status retroactively, regardless of whether she personally knew or did not know about the law. Presumably others did and that's why Congress changed it.
There's a difference between construing a law however one feels like construing it, i.e., ignoring the plain text of the 1986 amendment--and finding the plain text of a law unconstitutional, i.e., the decision to retroactively remove people's citizenship. The claim cannot be that the 1986 amendment always entailed application only to those born before its passage: 1) it does not say that; 2) previous statutes are retroactive and there is no prima facie reason to infer the 1986 bill is not; 3) if the 1986 bill did state it was operative only to those born after its passage, then the 1988 language would not have been introduced. The 1988 bill is itself the best evidence that the 1986 bill included Sara.
IJ Greenstein, April 3, 2014
I am not aware of any Constitutional challenges to the 1988 amendments but the funny part is that Sara and Robinson aren't the only one who fail to attend to the importance of the 1988 amendments: Greenstein also ignores the 1988 Act, as well as the portions of the 1952 Act that, according to the current statute, incorporate the bill's retroactivity to January 13, 1941 for out-of-wedlock foreign births.
Greenstein asserts, without quoting the 1986 law, that it is "first effective in 1986, and thus does not apply to the issue of whether Sarita Martinez acquired U.S. citizenship."
Greenstein cites for this claim Lake v. Reno, 226 F. 3d 141, 144 n. 1 (2d Cir. 2000) and U.S. v. Sandoval-Gonzalez, 642 F. 3d 717, 720 n. 2 (9th Cir. 2011).
Lake v. Reno is irrelevant: the petitioner in that case was born in 1953, and thus not in the Jan. 13, 1941 - Dec. 24, 1952 time frame applicable to Sara and referenced in 8 USC 1409.
Moreover, the petitioner prevailed on the merits of his due process challenge:
Interpreting Supreme Court precedent as authorized by our own precedent, we find that the gender-based distinction mandated by section 309(a) of the INA violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment. We therefore conclude that petitioner Lake holds United States citizenship from birth under section 301(a) (7). The decision of the BIA is reversed.The Supreme Court later overturned the Second Circuit opinion on this, citing its ruling in Nguyen v. INS 533 U.S. 53 (2001) (finding sex discrimination of the different requirements for conveying citizenship through paternity versus maternity constitutional). But that precedent is tailored to claims about the parent/child relationship and not the validity of the longer requirements of U.S. residency for fathers as opposed to mothers. (No doubt this has been challenged as well--if someone knows the case law on this I'd love to hear more about it.)
Likewise, Sandoval was born in 1957, again outside the range of the dispute Martinez has with the government's handline of his case.
Other than ignoring the Acts and current statute on which Robinson based his claim to U.S. citizenship, Greenstein appears to have invented a legal maneuver to bounce the case back to the BIA instead of following the Board's instructions by changing venue and allowing a new hearing (a proposal to which the DHS itself did not object and proposed Port Isabel, closer to Martinez's ailing adoptive mother/grandmother).
Specifically, Greenstein "certifies the case to the Board, given what appears to be significant legal error on the Board's part." That's basically the equivalent of a district court judge telling an appellate panel it's wrong and instead of acting on the remand, sending it back up to the appellate court. The regulation Greenstein cites, 8 CFR 1003.1(c) allows for "certification to the board" under a large number of circumstances bearing on the administration of hearings, bonds, and custody in the immigration courts, but I don't see a criterion for IJ dissatisfaction with a Board decision.
THEN WHAT? December 4, 2014, Self-Reversal Without New Evidence
After Pauley receives the "You-blew-it" memo from Greenstein, a former staff attorney at the Office of Immigration Litigation, Ashcroft appointee, Roger Pauley, folds. Let's say Pauley and Greenstein are both men of integrity and doing their best: the upshot is that the law is so convoluted they can't figure it out. In such a circumstance, the decision in keeping with Due Process would have to be erring on the side of inclusivity, especially when the fact pattern is consistent with the broader policy goals favoring family unity. That is not the direction Pauley takes. Citing Iracheta v Holder, 730 F. 3d 419, 423 (5th Cir. 2013); United States v. Cervantes-Nava, 281 F. 3d 501, 503 n. 2 (5th Cir. 2002) (citing United States v. Gomez-Orozco, 188 F. 3d 422, 426-27 (7th Cir. 1999)); see also Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001), he also affirms the notion that the statute in place at the time of birth controls criteria for citizenship.
First, the EOIR really wants to cite Iracheta, the one where the Fifth Circuit calls out the government for lying about a fake amendment to the Mexican Constitution? Really? More than anything else, Iracheta is a precedent for the proposition that the DHS and EOIR have zero credibility in their statements about citizenship law. To the point, Congress has repeatedly enacted INA laws and amendments that are retroactive and also prospective changes to U.S. citizenship claims, the caveat being these advance a one-way ratchet opening the window to U.S. citizenship, including the portion of the 1952 law that was retroactive to children born on or after January 13, 1941. In short, Greenstein and Pauley have in front of them the plain text of exactly the sort of retroactive laws they claim do not exist.
The law in effect for designating citizenship is whatever law Congress in the time frame of dispute indicates as its citizenship law, including bills passed subsequent to one's birth and that make one a U.S. citizen based on a legal fiction of retroactivity.
Not only 8 USC 1409 (b), which includes dates that retrospectively make citizens of those born out of wedlock between 1941and 1952, but also 8 USC 1407, 8 USC 1406, 8 USC 1405, 8 USC 1404, 8 USC 1403, and 8 USC 1402 also provide U.S. citizenship retroactively (e.g., a June 22, 1952 law stating "All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth").
Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001) references the 2000 Child Citizenship Act, and the federal regulations implementing it, which specify dates of eligibility that exclude the respondent, a clear difference with the 1986 Amendment on which Martinez is basing his legal challenge.
Pauley's citation of United States v. Cervantes-Nava is a case challenging the longer lengths of time required for residence in conferring U.S. citizenship to those born in foreign countries to those who are children of married parents. It notes that the relevant statute is the one in place at the time of birth and ignores the plain text of statutes retroactively affording citizenship to those born decades earlier.
Relevant Portions of Statutes
The Nationality Act of 1940
(October 14, 1940, Public. No. 853)
Sec. 201 The following shall be nationals and citizens of the United States at birth: ...
(c) A person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions prior to the birth of such person;
(g) A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the united States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years; Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes ipossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease...
[Exemption for child born abroad to American parent employed by government or with employment having substantial ties to the United States.]
(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.
Section 205. The provisions of section 201, subsections (c), (d), (e), and (g)...hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjuciation of a competent court.McCarran-Walters Act
In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.
66 Stat. 238
Public Law 414 (June 27, 1952)
Sec. 301 (1) The following shall be nationals and citizens of the United States at birth:...In 1986, Congress passed a law amending 301(g), codified at 8 U.S.C. 1401 (g);An Act To amend the Immigration and Nationality Act, and for other purposes
(3) a person born outside of the United States and its outlying possessions of parents both of hwom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of suh person;
(7) 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...
Sec. 309 (a) The provisions of paragraphs (3), (4), (5), and (7) of section 301 (a)...shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.
(b) Except as otherwise provided in section 405, the provisions of section 301 (a) (7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years of age by legitimation.
(c)Notwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this Act, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the motehr had the nationality of the United States at the time of such person's birth, and if the mother had previously been present in the United States or one of its outlying possessions for a continuous period of one year.
Public Law 99-653(Nov. 14, 1986)
Sec. 12. Section 301 (g) (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two".The 1986 changes to the INA were further revised by a 1988 Act to "make technical corrections in immigration related laws.
Sec. 13. Subsection (a) of section 309 (8 U.S.C. 1409) is amended--
(a) by striking out "paragraphs (3), (4), (5), (and (7) of section 301(a) and inserting in lieu thereof "paragraphs (c), (d), (e), and (g) of section 301"; and
(b) by striking out all after "wedlock", and inserting in lieu thereof "if a blood relationship between the child and the father is established by clear and convincing evidence, provided the father had the nationality of the United States at the time of the child's birth, the father unless deceased has agreed in writing to provide financila support for the child until such child reaches the age of eighteen yeras and if, while such child is under the age of eighteen years, (1) such child is legitimated under the law of the childs residence or comicile, or (2) the father acknowledges paternity of the child in writing under oath, or (3) paternity of the child is established by adjudication of a competent court."
Public Law 100-525
Oct. 24, 1988
The Act states:
"(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.Public Law 8 USC 1409(b) (2012) states:
"(2) The old section 309(a) shall apply --
"(A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and
"(B) any individual with respect to whom ppaternity was established by legitimation before such date.
"(3) An individual who is at least 15 years of age, but under 18 years of age, as of the date of the enactment of this Act, may elect to have the old section 309(a) apply to the individual instead of the new section 309(a).
"(4) In this subection:
"(A) The term 'new section 309(a) means section 309(a) of the Immigration and Naitonality Act as amended by section 13 of this Act and as in effect after the date of the enactment of this Act.
"(B) The term 'old section 309(a)' means section 309(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act.
the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time and while such a child is under the age of 21years by legitimation.Section 301(g) establishes U.S. citizenship for:
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 five years, at least two of which were after attaining the age of fourteen years.