In a harsh rebuke to roughly thirty-five years of government practice, the U.S. Court of Appeals for the Fifth Circuit exposed the government’s repeated reliance on a non-existing constitutional provision to deny U.S. citizenship claims by children born out of wedlock in México. Saldana Iracheta v. Holder, No. 12-60087, slip op. (5th Cir. September 11, 2013) (Reavley, Elrod, and Graves, JJ.). Judge Graves wrote the panel’s decision.
This case involved an individual who was born in México to a U.S. citizen father and Mexican citizen mother who were not married to each other. As an adult, Saldaña accumulated an extensive immigration and criminal history, including at least three deportations and one illegal reentry conviction. On roughly four occasions he claimed to be a U.S. citizen, but each time he either withdrew the claim or was denied by DHS. The case that finally made its way to the Fifth Circuit stemmed from a 2012 arrest for a traffic violation after which DHS sought to reinstate a prior order of removal. Saldana Iracheta, No. 12-60087, slip op. at 3. While in immigration detention, Saldaña again asserted that he was a U.S. citizen and again DHS denied his claim. Saldana Iracheta, No. 12-60087, slip op. at 3.
As the court noted, U.S. citizenship status is an absolute defense to illegal reentry and would prevent DHS from reinstating its removal order. Saldana Iracheta, No. 12-60087, slip op. at 4. Because these immigration law violations apply only to noncitizens, the court considered Saldaña’s citizenship claim to be jurisdictional. Saldana Iracheta, No. 12-60087, slip op. at 5.
The basis of his U.S. citizenship, Saldaña claimed, is his relationship with his father who is indisputably a U.S. citizen. At the time of Saldaña’s birth, the applicable law for transmitting citizenship to a child born abroad out of wedlock—as Saldaña was—required that the child “show: (1) he was legitimated before the age of 21 under the laws of the Mexican state where he resided or was domiciled as a child, see 8 U.S.C. § 1409(a) (1964) (hereinafter INA § 309)2; 8 U.S.C. § 1101(c)(1) (1952); and (2) before his birth, his father had ten years of residence in the U.S., at least five of which were after the age of 14, see 8 U.S.C. § 1401(a)(7) (1964) (hereinafter INA § 301).” Saldana Iracheta, No. 12-60087, slip op. at 5-6. The government conceded that Saldaña showed that his father met the residency requirement, thus the only question was whether Saldaña showed that he was legitimated prior to turning 21 years old. Saldana Iracheta, No. 12-60087, slip op. at 6.
Here the Fifth Circuit called out the government for its decades-long pattern of flagrantly violating standard legal practices by relying on non-existent legal provisions. It first began with an understated explanation that “prior to this appeal, no decisionmaker has clearly applied the correct Mexican statutes to Saldaña’s claim of citizenship.” Saldana Iracheta, No. 12-60087, slip op. at 6. Then it explained that DHS applied to Saldaña a provision of the Mexican Constitution, Article 314, that the BIA and the Administrative Appeals Office (AAO) of DHS had applied at least as far back as 1978. In Matter of Reyes, 16 I&N Dec. 436 (BIA 1978), the court noted, the BIA cited Article 314 for the proposition that “the Constitution of Mexico provides that children born out of wedlock may be legitimated solely by the subsequent marriage of their parents.” Saldana Iracheta, No. 12-60087, slip op. at 6. The court cited several cases in which the BIA or AAO used the same argument over the decades that have transpired, including as recently as 2008 in a case involving someone else and as recently as 2012 in Saldaña’s case.
The only problem with this line of argument is that Article 314 of the Mexican Constitution “does not exist and never did.” Saldana Iracheta, No. 12-60087, slip op. at 6-7. The government tried to portray this error as “a mere ‘typo’,” but the court disagreed. Saldana Iracheta, No. 12-60087, slip op. at 7 n.3. This was an error of significant consequence to many individuals, including Saldaña, the court explained, that “wound its way through multiple agency decisions.” Saldana Iracheta, No. 12-60087, slip op. at 7 n.3
As if this weren’t enough, in denying Saldaña’s citizenship claim in 2004 the government “also cited Article 130 of the Constitution of Mexico for the same proposition that the Constitution requires that parents be married in order for children to be legitimated.” Saldana Iracheta, No. 12-60087, slip op. at 7. While Article 130 does exist, the problem here, the court explained, is that it “provides only that marriage is a civil contract, as opposed to a religious one, and says nothing about legitimation or children.” Saldana Iracheta, No. 12-60087, slip op. at 7.
Turning to the correct source of legitimation law—the law of the Mexican state of Tamaulipas where Saldaña was born—the court ultimately concluded that his father legitimated him well before turning twenty-one years old. Saldana Iracheta, No. 12-60087, slip op. at 10, 12. Consequently, Saldaña meets the requirements for having acquired U.S. citizenship from his father at birth. Saldana Iracheta, No. 12-60087, slip op. at 12.
While it’s not difficult to find instances in which courts strongly criticize the reasoning that the BIA or other immigration officials apply as shoddy or worse, this case strikes me as of a different magnitude. It’s possible that multiple immigration officials over the course of several decades conspired to deny U.S. citizens born in México to parents who weren’t married to each other their rightful claim to citizenship. But I doubt that’s what happened here.
Instead, this seems to me a more likely instance of laziness. Immigration adjudicators seem to have overlooked a basic tenet of legal analysis—the need to do original legal research. It is simply not enough to rely on someone else’s research. Turning to the work that others have done—whether memorialized in a treatise, a blog (including this one), or case law—is a great way to start legal research. But it should never be a substitute for doing the research for oneself. The likelihood of error is too high and the consequences, as this case illustrates, far too significant. Interestingly enough, the first citation to non-existent Article 314 that the Fifth Circuit lists, the BIA’s 1978 decision in Matter of Reyes, doesn’t even cite to the Mexican Constitution; it merely references a description provided by the Library of Congress. This makes me wonder whether anyone at the BIA back then even bothered to look at the Mexican Constitution.
The court doesn’t mention it, but I wonder where the attorneys were in the cases where the government cited the non-existent Article 314 in the past. I won’t speculate, but I hope that someone pointed out that this provision didn’t exist before Saldaña’s attorneys got around to it (though I’m glad that they finally did).
Another lesson that this case reminds me of is that the immigration agencies are simply overtaxed. I don’t have enough of a sense of their workload stretching back to 1978, but these days there is little doubt that the immigration courts in particular do not have the resources necessary to do their work properly. This is not to excuse their failure to perform basic legal research, but it is an attempt to understand how an error of this magnitude could have gone uncorrected for so long. Here’s hoping that there aren’t more such errors out there.