CA5 on Acquired Citizenship, Legitimation: Saldana Iracheta v. Holder (Very Old Egg on BIA's Face)

CA5 on Acquired Citizenship, Legitimation: Saldana Iracheta v. Holder (Very Old Egg on BIA's Face)

"This appeal is a petition for review from the Department of Homeland Security’s (“DHS”) reinstatement of a previously-issued order of removal against Sigifredo Saldana Iracheta (“Saldana”). On appeal, Saldana asserts that he acquired citizenship from his U.S. citizen father at birth. We hold that under the applicable immigration laws, Saldana has established that he is a U.S. citizen. ... 

At oral argument, the government conceded that Saldana has shown that his father had the required amount of U.S. residency. Thus, we confront only the question of whether Saldana’s paternity was established by legitimation as required by INA § 309. ... 

In Saldana’s case and in others, DHS has relied on the proposition that Article 314 of the Constitution of Mexico provides that children born out of wedlock may be legitimated solely by the subsequent marriage of their parents. See Matter of Reyes, 16 I. & N. Dec. 436 (BIA 1978) (citing Article 314 of the Constitution of Mexico for this proposition) .... At oral argument, however, the government conceded that Article 314 of the Constitution of Mexico does not exist and never did.3

Footnote 3: It is unclear whether the government has previously acknowledged this error, which originated at the BIA in 1978, nearly three decades ago. See Reyes, 16 I. & N. Dec. at 436. However, DHS relied on Reyes as recently as January 2012 and relied explicitly on Article 314 as recently as 2008, in rejecting Saldana’s citizenship claims. Though the government attempted to dismiss this error as a mere “typo,” we cannot agree. It is unclear what legal authority the BIA actually relied on in Reyes. It may have been a provision of the applicable civil code, as opposed to the Constitution of Mexico. The substance of the law may or may not have been correct in Reyes, but the BIA’s mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases. That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals. ...

In denying Saldana’s citizenship claim in the 2012 reinstatement decision, DHS relied on a patchwork of BIA and AAO cases, including Reyes (which relied on the non-existent Article 314), and other cases concerning the validity of marriages in Mexico. The cases seem to contradict each other. Compare Matter of Hernandez, 14 I. & N. Dec. 608 (BIA 1973) (denying citizenship because the “common law” marriage of his parents made the petitioner legitimate), with Matter of Rodriguez-Cruz, 18 I. & N. Dec. 72 (BIA 1981) (denying citizenship because the “religious marriage” of his parents was invalid and made the petitioner illegitimate). In short, the reasoned decisionmaking that we expect from administrative agencies has been lacking at various points in Saldana’s case. In any event, the parties seem to now implicitly agree that the Constitution of Mexico says nothing about the legitimation of children, and do agree that the applicable law is the Civil Code of Tamaulipas. ... 

For the reasons stated above, we GRANT Saldana’s petition for review.  We REMAND to the agency with instructions to vacate or terminate any orders or proceedings as necessary to effectuate this opinion." - Saldana Iracheta v. Holder, Sept. 11, 2013.

Hats way off to Brownsville, Texas solo practitioner Marlene A. Dougherty!