5 Cir: Failure to investigate plausible derivative citizenship claim is ineffective assistance

The U.S. Court of Appeals for the Fifth Circuit granted an ineffective assistance of counsel claim where the defense attorney failed to investigate a defendant’s plausible derivative citizenship claim. United States v. Juarez, No. 09-20764, slip op. (5th Cir. Feb. 24, 2012) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s opinion.

This case involves an individual who was born in México and entered the United States with his mother as a six-year-old. Prior to the defendant’s eighteenth birthday, his mother naturalized. In addition, he married a U.S. citizen prior to turning eighteen. Complicating matters, he was convicted of drug possession soon thereafter as a result of which he was deported. Juarez, No. 09-20764, slip op. at 3.

Less than three years later he was found in the United States when he tried to buy a gun. In 2006 he pleaded guilty to lying about his U.S. citizenship status on a “firearms transaction record” form, 18 U.S.C. § 911, and illegal reentry following an aggravated felony conviction, INA § 276(a), (b)(2). Juarez, No. 09-20764, slip op. at 2.

Sixteen months later Juárez sought to vacate those convictions claiming that his defense attorney violated his Sixth Amendment right to effective assistance of counsel by failing to raise an alienage defense—that is, “Juárez contended that he derived U.S. citizenship through his mother under 8 U.S.C. § 1432(a) (1999), and therefore he had a valid defense to both offenses.” Juarez, No. 09-20764, slip op. at 2.

In what came as a surprise to me, the Fifth Circuit agreed. His mother, the court explained, naturalized while Juárez was sixteen and, through the U.S. citizen who he married while under eighteen years old, sought LPR status. Juarez, No. 09-20764, slip op. at 3. Combined, these facts created a “plausible” argument that Juárez obtained derivative citizenship. Juarez, No. 09-20764, slip op. at 7.

Under 8 U.S.C. § 1432 as it existed at the time Juárez’s mother naturalized (it has since been repealed by the Child Citizenship Act of 2000), an individual born abroad to non-USC parents whose parent naturalizes prior to the child turning eighteen years old, whose other parent dies, and who “thereafter begins to reside permanently in the United States while under the age of eighteen years,” automatically acquires citizenship. Juarez, No. 09-20764, slip op. at 5-6 (quoting 8 U.S.C. § 1432 (1999)).

The only question here was whether Juárez satisfied the permanent resident prior to age eighteen requirement. No Fifth Circuit case law existed at the time Juárez pleaded guilty and in this case the court declined to interpret § 1432. The court did, however, note that “[b]ased on the legal authority available at the time [the defense attorney] advised Juárez on his pleas, a derivative citizenship defense was plausible.” Juarez, No. 09-20764, slip op. at 7. Interestingly, for this proposition the court cited dicta from a Second Circuit decision, an unpublished Ninth Circuit decision, and Kurzban’s Immigration Law Sourcebook. Juarez, No. 09-20764, slip op. at 7.

These authorities, the court concluded, “suggested that he did not need LPR status to become a citizen” upon his mother’s naturalization. Juarez, No. 09-20764, slip op. at 6. Rather, “Juárez may have derived citizenship as he would only need to show actual residence.” Juarez, No. 09-20764, slip op. at 7 (discussing Kurzban’s Immigration Law Sourcebook 1302 (11th ed. 2008-2009)).

The defense attorney’s critical flaw was in failing to conduct a reasonable investigation of this plausible defense strategy. Juarez, No. 09-20764, slip op. at 7. “As Juárez’s attorney,” the court explained, “Izaguirre had a duty to independently research the law and investigate the facts surrounding Juárez’s case.” Juarez, No. 09-20764, slip op. at 8. Instead, the defense attorney admitted to having “never heard of derivative citizenship until after Juárez filed his [post-conviction relief 28 U.S.C.] § 2255 motion.” Juarez, No. 09-20764, slip op. at 9. “[F]ailure to investigate [this plausible defense strategy,]” the court held, “was unreasonable.” Juarez, No. 09-20764, slip op. at 9.

This deficient performance prejudiced the defendant, the court went on to hold. Had Juárez’s attorney researched this plausible defense strategy and informed him of it, “there is a reasonable probability that Juárez would have been dissuaded from pleading guilty.” Juarez, No. 09-20764, slip op. at 11.

Deficient performance that prejudices the defendant is sufficient to meet the ineffective assistance of counsel test announced in Strickland v. Washington, 466 U.S. 668 (1984). Having concluded that the Strickland standard was met here, the court reversed the district court’s denial of post-conviction relief. Juarez, No. 09-20764, slip op. at 12.

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