Anderson v. Holder, No. 2:2009cv02519 - Document 35 (E.D. Cal. 2010)

Court Description: MEMORANDUM and DECISION signed by Judge William B. Shubb on 4/27/10 ORDERING that petitioner's 1 Request for Declaration of US Citizenship is DENIED re USCA case no. 08-73946. Clerk shall forthwith certify the trial record and this order to the USCA for the 9th circuit for further proceedings. CASE CLOSED. (cc: USCA) (Owen, K) Modified on 4/28/2010 (Owen, K).

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 ----oo0oo---12 13 NO. CIV. 2:09-2519 WBS JFM (Court of Appeals No. 08-73946) GARY ANDERSON, 14 Petitioner, 15 MEMORANDUM OF DECISION 16 v. 17 18 19 ERIC H. HOLDER JR., Attorney General, Respondent. / 20 21 ----oo0oo---22 23 Pursuant to 8 U.S.C. § 1252(b)(5)(B), the Ninth Circuit 24 Court of Appeals transferred this matter to this court for a 25 determination of petitioner Gary Anderson s claim that he is a 26 United States citizen. 27 judgment that he obtained United States citizenship at birth. 28 After considering the arguments of counsel, the parties Joint Petitioner asks for a declaratory 1 1 Statement of Facts, and the depositions submitted to the court, 2 the court finds that petitioner has not met his burden of 3 establishing that he is a United States citizen and will 4 therefore deny his request for declaratory relief. 5 This memorandum constitutes the court s findings of 6 fact and conclusions of law pursuant to Federal Rule of Civil 7 Procedure 52(a). 8 1252(b)(5)(B). 9 I. 10 Fed. R. Civ. P. 52(a); see 8 U.S.C. § Procedural History On January 3, 1996, petitioner was convicted for 11 conspiring to distribute and possess with the intent to 12 distribute methamphetamine. 13 Naturalization Service initiated removal proceedings against 14 petitioner on September 7, 2000. 15 immigration judge found that petitioner was a United States 16 citizen and terminated removal proceedings. 17 Immigration Appeals reversed this decision and ordered petitioner 18 removed to England on June 22, 2001. 19 for review with the Ninth Circuit on October 16, 2007, which 20 remains pending. 21 The then-existing Immigration and On January 11, 2001, an The Board of Petitioner filed a petition See Anderson v. Holder, No. 07-74042. On June 26, 2008, petitioner filed a motion to reopen 22 the removal proceedings with the Board of Immigration Appeals. 23 On August 14, 2008, petitioner filed a second petition with the 24 Ninth Circuit, which is also pending, challenging the Board of 25 Immigration Appeals decision to deny his motion to reopen. 26 Anderson v. Holder, No. 08-73946. 27 consolidated on September 16, 2008. 28 at Docket No. 15. See The two petitions were See Anderson, No. 07-74042 On August 17, 2009, the Ninth Circuit severed 2 1 the two petitions, held them in abeyance, and transferred 2 petitioner s second petition to this court for a determination of 3 citizenship pursuant to 8 U.S.C. § 1252(b)(5). 4 (Docket No. 1.) At the scheduled Pretrial Conference on February 8, 5 2010, the parties indicated that they were in agreement on many, 6 if not all, of the facts in this matter. 7 afforded the parties an opportunity submit a joint statement of 8 undisputed facts, which the parties filed on March 1, 2010. 9 (Docket No. 19.) The court accordingly The court held another Pretrial Conference on 10 March 1, 2010, where petitioner identified one potential disputed 11 issue of fact in regard to witness Henry Gitelman s testimony and 12 asked the court for additional time to take another deposition of 13 Gitelman so that he could avoid the inconvenience of coming to 14 Sacramento to testify. 15 request. 16 another deposition of Henry Gitelman and submit it as part of the 17 record. 18 The United States did not oppose this The court accordingly allowed petitioner to take (Docket No. 20.) The court held a hearing on April 26, 2010, to afford 19 the parties an opportunity to call witnesses and submit evidence 20 not already on the record for any disputed issue of material 21 fact. 22 additional evidence at the hearing. 23 II. Neither party elected to call any witnesses or submit any Findings of Fact Petitioner was born on October 1, 1954 in Swindon, 24 25 England. (Joint Statement of Undisputed Material Facts (Docket 26 No. 19) ¶ 1.) 27 her married name as Mavis Anderson, was born in England on 28 November 30, 1936. Petitioner s mother, Mavis Sinclair, also known by (Id. ¶¶ 2-3.) 3 Sinclair became a naturalized 1 United States citizen on February 20, 1974. 2 Petitioner s biological father, Henry Gitelman, is a United 3 States citizen born in Malden, Massachusetts on February 28, 4 1932. 5 remain in Malden, Massachusetts. 6 Gitelman joined the United States Air Force and was stationed in 7 England. 8 the Air Force from 1952 until 1955, when he was honorably 9 discharged. (Id. ¶¶ 5-6.) (Id. ¶ 8.) (Id. ¶ 4.) Gitelman lived and intended to permanently (Id. ¶ 7.) At nineteen, Gitelman lived in England as a member of (Id. ¶¶ 9-10). Gitelman and Sinclair had a sexual relationship in 10 11 England that resulted in the conception of petitioner. 12 11-12.) 13 parents, who did not approve of Gitelman s relationship with 14 their daughter. 15 Gitelman permission to marry Sinclair and their romantic 16 relationship ended after Sinclair became pregnant. 17 Gitelman was not present at the hospital when Sinclair was in 18 labor or during petitioner s birth. 19 visited petitioner shortly after his birth, paid for Sinclair s 20 hospital expenses, and purchased a baby stroller, which he gave 21 to Sinclair. 22 petitioner s birth certificate in part because Sinclair s parents 23 would not give the permission required for Gitelman to put his 24 name on the certificate. 25 Sinclair attempted to amend the birth certificate to add Gitelman 26 as petitioner s biological father. Gitelman learned that Sinclair was pregnant through her (Id. ¶ 17.) (Id. ¶ 16.) Sinclair s parents would not give (Id. ¶ 15.) (Id. ¶ 26.) Gitelman Gitelman s name is not listed on (Id. ¶¶ 23-24.) Neither Gitelman nor (Id. ¶ 23.) Gitelman left England and returned to the United States 27 28 (Id. ¶¶ in 1955. (Id. ¶ 27.) Gitelman landed in New York on a troop 4 1 ship and went to New Jersey for a few days to be discharged. 2 (Id.; Resp t Brief Ex. F. (Jan. 6, 2010 Gitelman Depo.) at 35:23- 3 36:10.) 4 returned to Massachusetts where he lived until at least 1975. 5 (Joint Statement of Undisputed Facts ¶ 27.) 6 claimed petitioner on his tax returns, took a blood test to 7 establish that he is petitioner s biological father, or lived 8 with petitioner. 9 or agreed in writing to provide financial support for petitioner 10 outside of paying for Sinclair s hospital expenses and purchasing 11 a baby stroller. After his discharge from the Air Force, Gitelman (Id. ¶¶ 18-21.) Gitelman never Gitleman also never provided (Id. ¶ 22.) 12 Gitelman had no contact with petitioner from the time 13 he visited petitioner in the hospital shortly after birth until 14 1999 or 2000, when petitioner was forty-five or forty-six years 15 old. 16 that he is petitioner s biological father. 17 Gitelman also provided telephonic testimony at petitioner s 18 hearing in immigration court that he is petitioner s biological 19 father. 20 biological father and has told a number of friends over the years 21 that he had a son in England. 22 (Mar. 25, 2010 Gitelman Depo.) at 5-8, 11-14.) 23 (Id. ¶ 20.) (Id.) In 2000, Gitelman signed an affidavit stating (Id. ¶ 28.) In 2001, Gitelman has never denied that he is petitioner s (Id. ¶ 14; Resp t Brief Ex. A Sinclair married Ted Anderson in Detroit, Michigan on 24 May 23, 1964. (Joint Statement of Undisputed Facts ¶ 31.) 25 Anderson is a United States citizen, born in North Carolina on 26 September 4, 1936. 27 Carolina from his birth until April 6, 1956. 28 petitioner was twelve years old, he moved from England to the (Id. ¶ 29.) Ted Ted Anderson lived in North 5 (Id. ¶ 30.) When 1 United States on January 10, 1966 to live with Ted Anderson and 2 his mother. 3 petitioner began living with Ted Anderson and Sinclair in 4 Pontiac, Michigan. 5 Anderson adopted petitioner. 6 notified that petitioner was living in the United States or that 7 Ted Anderson adopted him until Gitelman spoke with Sinclair in 8 2000. 9 (Id. ¶¶ 36-37.) Upon arriving in the United States, (Id. ¶¶ 38-39.) On March 16, 1967, Ted (Id. ¶ 31.) Gitelman was not (Id. ¶¶ 32-34.) Petitioner lived continuously, and intended to 10 permanently remain in, Michigan from January 1966 until 1971 or 11 1972, when he moved to Minnesota with Ted Anderson and Sinclair. 12 (Id. ¶¶ 39, 41.) 13 where he intended to permanently remain, until July 1975. 14 41.) 15 they moved to Arizona. 16 petitioner also moved to Arizona in July 1975. 17 Petitioner lived with Sinclair and Ted Anderson in Arizona for a 18 year, until Sinclair and Anderson moved into their own home while 19 petitioner stayed in an apartment on his own. 20 Petitioner became a Lawful Permanent Resident of the United 21 States on July 1, 1976, when he was twenty-one years old. 22 40.) 23 when he was incarcerated for various criminal sentences in 24 Arizona and Florida. 25 III. Analysis and Conclusions of Law 26 Petitioner continuously lived in Minnesota, (Id. ¶ He lived with Sinclair and Ted Anderson in Minnesota until (Id.) Six to nine months later, (Id. ¶¶ 41-2.) (Id. ¶ 42.) (Id. ¶ Petitioner lived in Arizona until 1995, except for the time (Id. ¶ 43.) In a proceeding under 8 U.S.C. § 1252(b)(5), the 27 petitioner bears the burden of proving citizenship by a 28 preponderance of the evidence. See Sanchez-Martinez v. I.N.S., 6 1 714 F.2d 72, 74 (9th Cir. 1983). There are two sources of 2 citizenship, and two only: birth and naturalization. 3 Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong 4 Kim Ark, 169 U.S. 649, 702 (1898)). 5 acquired by being born in the United States. 6 born in the United States, he or she can acquire citizenship at 7 birth only as provided by Congress. 8 applicable law for transmitting citizenship to a child born 9 abroad when one parent is a U.S. citizen is the statute that was Miller v. Citizenship at birth can be If a person is not See id. at 423-24. The 10 in effect at the time of the child s birth. Id. at 1162 11 (citing United States v. Viramontes-Alvarado, 149 F.3d 912, 915 12 (9th Cir. 1998)) (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th 13 Cir. 1995)) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th 14 Cir. 1990)). 15 At the time of petitioner s birth in 1954, former 8 16 U.S.C. § 1401(a)(7) of the Immigration and Nationality Act of 17 1952 ( INA ) conferred United States citizenship at birth to: 18 19 20 21 22 23 a person born outside of 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: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph. 24 25 8 U.S.C. § 1401(a)(7) (June 27, 1952). 26 INA provided that § 1401(a)(7) could provide citizenship to 27 children born out-of-wedlock only if the paternity of such child 28 is established while such child is under the age of twenty-one 7 Section 1409(a) of the 1 years by legitimation. 2 statute, the method by which an out-of-wedlock child can 3 establish his paternity is through being legitimated. 4 5 6 7 8 9 10 11 Id. § 1409(a). Accordingly, under the In addition, § 1101(c)(1) provided that the term child meant: an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child s residence or domicile, or under the law of the father s residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431-1434 of this title, a child adopted in the United States, if such legitimation or adoption takes-place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption. 12 Id. § 1101(c)(1). Former § 1101(c)(1) therefore established that 13 a court must look to the law of the U.S. state or country of the 14 child and father s residence to determine if a child was 15 legitimated. See Solis-Espinoza v. Gonzales, 402 F.3d 1090, 16 1093-94 (9th Cir. 2005); Scales v. I.N.S., 232 F.3d 1159, 1163 17 (9th Cir. 2000). Thus, for an out-of-wedlock child to obtain 18 citizenship, he or she must prove that he or she was legitimated 19 under the law of a U.S. state or country of his or her father s 20 residence before the age of twenty-one. See Burgess v. Meese, 21 802 F.2d 338, 340 (9th Cir. 1986). 22 A. Born Out-of-Wedlock 23 Petitioner claims that he can establish citizenship at 24 birth through both his biological father, Gitelman, and his 25 adoptive father, Ted Anderson. Before addressing these specific 26 contentions, the court must first determine whether petitioner 27 should be considered born out-of-wedlock for purposes of the 28 8 1 statute. Petitioner s biological parents never married. 2 Petitioner argues, however, that his adoption by Ted Anderson at 3 age twelve legitimated him and entitles him to all the rights and 4 privileges of being born in wedlock and that accordingly he 5 should be treated as having been born in wedlock from birth under 6 § 1407(a)(7). In Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 7 8 2009), the Ninth Circuit addressed a theory very similar to that 9 advanced by petitioner. The Martinez-Madera court specifically 10 rejected the argument that an alien parent who is unmarried at 11 the time of the birth of a person who later claims citizenship 12 may be deemed to have been married to a citizen at the time of 13 birth. 14 Circuit followed the Fifth Circuit s ruling in Marquez-Marquez v. 15 Gonzalez, 455 F.3d 548 (5th Cir. 2006), finding the theory that a 16 child can derive citizenship by birth from a subsequent U.S. 17 citizen stepfather . . . [is] an untenable and paradoxical 18 reading of § 1401 s requirement that one be born in wedlock to a 19 U.S. citizen to derive citizenship from that parent. 20 Madera, 559 F.3d at 942 (emphasis added). 21 court in Marquez-Marquez: 22 23 24 Martinez-Madera, 559 F.3d at 942. Instead, the Ninth Martinez- As explained by the [Section 1401] does not address citizenship through adoption, and its text explicitly addresses only citizenship at birth ( [t]he following shall be nationals and citizens of the United States at birth ). Moreover, [§ 1401(g)]1 requires that the person be 25 26 27 28 1 Under the 1986 amendments to the INA, § 1401(a)(7) became § 1401(g). See 8 U.S.C. § 1401(g)(1986). Although Marquez-Marquez and Martinez-Madera were both interpreting the 1986 version of § 1401, [t]he text of 8 U.S.C. §§ 1401 and 1409 was not amended in any relevant way between 1952 and 1986 that 9 1 2 3 4 born . . . of a citizen parent, obviously reflecting a relationship when born. That reading is likewise enhanced by [§ 1401(g) s] express requirement that the citizen parent s United States residency prerequisites be all fulfilled prior to the birth of such person, a requirement that would be pointless if the citizen parent could first become the parent of such person more than a decade after the person s birth. 5 Marquez-Marquez, 455 F.3d at 556-57. 6 Petitioner argues that the Ninth Circuit s decision in 7 Solis-Espionza supports his contention that petitioner can be 8 considered born in wedlock due to his subsequent adoption. 9 Solis-Espionza is easily distinguishable. In Solis-Espinoza, the 10 petitioner s biological father was married to a citizen 11 stepmother at the time of the child s birth. Solis-Espinoza, 401 12 F.3d at 1091-92. The Ninth Circuit found that the person 13 claiming citizenship was a legitimate child born in wedlock 14 because his parents were married at the time of her birth, even 15 though his father s wife was not his biological mother. See id. 16 at 1093-94. Here, like the petitioners in Martinez-Madera and 17 Marquez-Marquez, petitioner was not born into any marital 18 relationship. See Martinez-Madera, 559 F.3d at 941 19 (distinguishing Solis-Espinoza and Scales because both involved 20 children born into a marriage). Accordingly, Solis-Espinoza is 21 not controlling. 22 Petitioner s position conflates legitimacy with the 23 state of being born in wedlock. None of the authority under 24 English or Massachusetts law cited by petitioner stands for the 25 proposition that an adopted child is considered born in wedlock 26 27 28 would change the outcome in this case. at 941 n.1. 10 Martinez-Madera, 559 F.3d 1 for immigration purposes. Rather, the authority simply indicates 2 that under English and Massachusetts law, an adopted child is 3 treated as though he or she was legitimate at birth. 4 Minor Child v. Mich. State Health Comm r, 16 Mich. App. 128 5 (1969); Adoption Act, 1926, 16 & 17 Geo. 5, c. 20, § 5 (Eng.). 6 Being born out-of-wedlock is a factual condition distinct from 7 the legal state of being considered illegitimate. 8 Kiley, 562 F.2d 543, 548 (2d Cir. 1977) ( Legitimacy is a legal 9 concept. See, e.g., See Lau v. The law makes a child legitimate or illegitimate . . . 10 Indeed the term illegitimate means (t)hat which is contrary to 11 law(.) (internal citation omitted)). 12 retroactive to a child s birth, it is clear the Ninth Circuit has 13 held that a child cannot be considered retroactively born in 14 wedlock because of a subsequent adoption and marriage by one of 15 the child s parents. 16 While legitimacy may be See id. at 941-42. Under this interpretation of § 1409 it would not be 17 impossible for a child born out-of-wedlock to gain citizenship 18 unless his parents subsequently married under the statute. 19 child born out-of-wedlock initially could be subsequently 20 legitimated before his or her twenty-first birthday and obtain 21 all the rights of citizenship. 22 previously explained, § 1101(c)(1) of the INA mandates that a 23 court must look to the law of the residence of the child or 24 father to determine if a child was legitimated. 25 Espinoza, 402 F.3d at 1093-94; Scales, 232 F.3d at 1163. 26 variety of legitimation requirements across domiciles ensures 27 that it will not always be necessary for a child s biological 28 parents to marry to confer citizenship on an out-of-wedlock See 8 U.S.C. § 1409(a). 11 A As See SolisThe 1 child. Petitioner s argument that the statute excludes 2 illegitimate children entirely from citizenship is therefore 3 clearly false. 4 The Supreme Court has held that § 1409(a) is 5 consistent with the constitutional guarantee of equal 6 protection. 7 Although the Supreme Court was ruling on the contemporary version 8 of § 1409(a), the current version of the statute arguably creates 9 a higher hurdle for illegitimate children to obtain citizenship 10 because in addition to establishing legitimacy, paternity in a 11 competent court, or an acknowledgment of paternity in writing, 12 the child must establish that a (1) blood relationship exists 13 with the father, (2) the father was a national at the child s 14 birth and (3) the father agreed to provide financial support in 15 writing. 16 court to disturb the rulings of the Ninth Circuit and the Supreme 17 Court on a limited hearing to determine whether petitioner is a 18 United States citizen. 19 out-of-wedlock, he must meet the requirements of § 1409(a) to be 20 a United States citizen. 21 22 B. Nguyen v. I.N.S., 533 U.S. 53, 58-59 (2001). 8 U.S.C. § 1409(a) (1986). It is not the place of this Accordingly, since petitioner was born Citizenship Through Gitelman Petitioner argues that he acquired citizenship at birth 23 through Gitelman. It is undisputed that petitioner has fulfilled 24 the requirements of § 1401(a)(7), since Gitelman was born a 25 United States citizen and fulfilled the physical presence 26 requirements by living in Massachusetts from his birth until he 27 left to serve in the Air Force and then returning to live in 28 Massachusetts after his service. 12 See 8 U.S.C. § 1401(a)(7) 1 (1952). The remaining question is whether the paternity of 2 petitioner was established by legitimation before petitioner 3 turned twenty-one years old. 4 See id. § 1409. Legitimacy is a legal concept, and a state has the 5 power to define what constitutes it, how to regulate it, or even 6 to abolish it altogether. 7 have the power to determine what constitutes legitimacy under 8 former § 1101(c)(1), a person who is legitimated under the law of 9 one state does not become illegitimate under § 1409 if the child 10 moves to another state with a different definition of legitimacy. 11 See Lau, 563 F.2d at 551; see also Solis-Espinoza, 402 F.3d at 12 1093-94; Scales, 232 F.3d at 1163; O Donovan-Conlin v. U.S. 13 Dep t. of State, 255 F. Supp. 2d 1075, 1082 (N.D. Cal. 2003). 14 is undisputed that petitioner was a resident of England and the 15 states of Michigan, Minnesota, and Arizona before the age of 16 twenty-one. 17 petitioner turned twenty-one.2 18 United States citizen if he established his paternity by 19 legitimation under the laws of either Arizona, Michigan, 20 Minnesota, England, or Massachusetts before his twenty-first Lau, 563 F.2d at 549. Because states It Gitelman was a resident of Massachusetts before Accordingly, petitioner is a 21 22 23 24 25 26 27 28 2 While petitioner claims that Gitelman was also a resident of New Jersey, Gitelman only briefly stopped in New Jersey for a few days at Camp Kilmer waiting to be discharged from the Air Force. (See Jan. 6, 2010 Gitelman Depo. at 35:2336:10.) Such a brief, temporary stay in New Jersey at a military base is insufficient to establish New Jersey as Gitelman s domicile or residence. See 8 U.S.C. § 1101(a)(33) (defining residence as principal actual dwelling place ); Charles Alan Wright, Arthur R. Miller. & Edward H. Cooper, 13 E Federal Practice and Procedure § 3617 at 567 (3d ed.) ( Service personnel are presumed not to acquire a new domicile when they are stationed in a place pursuant to orders; they retain the domicile they had at the time of entry into the service. ). 13 1 birthday. See 8 U.S.C. § 1101(c)(1) (1952). 2 1. Arizona 3 Petitioner primarily stresses that he has established 4 paternity by legitimation under the laws of Arizona. (See 5 Pet r s Reply at 5-14.) 6 1975, three months before his twenty-first birthday, and remained 7 a there until 1995. 8 petitioner was a resident of Arizona before his twenty-first 9 birthday. Petitioner moved to Arizona in July The United States does not dispute that Beginning in 1921, Arizona state law has provided 10 that, [e]very child is . . . the legitimate child of its natural 11 parents and as such is entitled to support and education to the 12 same extent as if it had been born in lawful wedlock. 13 Ariz. Sess. Laws Ch. 114; see In re Silva s Estate, 32 Ariz. 573, 14 575-76 (1927); Moreno v. Sup. Court of Pima County, 3 Ariz. App. 15 361, 363 (1966). 16 every child is the legitimate child of its natural parents. 17 Ariz. Rev. Stat. § 8-601, amended by Laws 1975, Ch. 117 § 2. 18 Petitioner claims that because Gitelman has admitted that he is 19 petitioner s biological father he is legitimate under the law of 20 Arizona and therefore Gitelman established his paternity by 21 legitimation. 22 1921 In 1975, Arizona law specifically stated that See In Flores-Torres v. Holder, Nos. C 08-01037 WHA, C 23 09-03569 WHA, --- F. Supp. 2d ----, 2009 WL 5511156 (N.D. Cal. 24 Dec. 23, 2009), the District Court for the Northern District of 25 California addressed the meaning of the term paternity by 26 legitimation under former § 1432(a), a statute dealing with 27 naturalization of a child born outside the United States. 28 facts are almost identical to those in this case. 14 The The petitioner 1 in Flores-Torres was born in El Salvador, which, like Arizona, 2 abolished the concept of illegitimacy. 3 5511156, at *6. 4 phrase paternity . . . by legitimation in § 1432(a) meant that 5 the only means by which paternity could be established was 6 through the act of legitimation. 7 word by in the phrase and concluded that the petitioner could 8 not show that his paternity was established by legitimation 9 because even though his parents demonstrated paternity by other 10 means, they did not engage in an affirmative act of legitimation 11 since El Salvador lacked such a procedure all together. 12 at *5-6. 13 Flores-Torres, 2009 WL The Flores-Torres court concluded that the Id. The court emphasized the See id. Petitioner s argument, like the petitioner s claim in 14 Flores-Torres, ignores the distinction between legitimation and 15 legitimacy in general. 16 act or occurrence that makes a child born out-of-wedlock 17 legitimate under the law. 18 hand, could be either a child born into wedlock or a child born 19 out-of-wedlock who has been legitimated or whom the law deems to 20 be legitamate. 21 whether a child was legitimated in general and whether a child s 22 paternity was established by legitimation (emphasis in 23 original)). 24 phrase paternity by legitimation stated that establishment of 25 legitimation is a matter of complying with the laws of the place 26 of legitimation . . . [a]s a general proposition, legitimation is 27 accomplished by the marriage of the parents with acknowledgment 28 of paternity by the putative father. Legitimation denotes a procedure--an A legitimate child, on the other See id. at *6 (noting the distinction between In fact, a Senate report from 1950 discussing the 15 Sen. Rep. No. 1515, at 1 692-93 (1950). 2 compliance with a legal process and believed that a step as 3 strong as marriage of a child s biological parents would be 4 necessary to accomplish it. 5 Congress s intent was to require the child s parents to go 6 through some process to acknowledge paternity in order to 7 transfer citizenship to their child. 8 9 Congress recognized that legitimation involved It is therefore clear that This distinction is important because it goes directly to one of the purposes of § 1409--to deter fraud. In requiring 10 that a petitioner s father establish paternity by legitimation, 11 Congress was expressing the belief that it was preferable to 12 require some formal legal act to establish paternity . . . to 13 deter fraud. 14 statute requires the additional affirmative step of legitimation 15 to ensure that the state establishes a real, lasting, and legal 16 link between parent and child before granting citizenship on the 17 basis of that biological relationship. 18 akin to a formal legal act of legitimation is not required, the 19 government can not ensure that a true connection exists between a 20 putative parent and child born out-of-wedlock that entitles that 21 child to citizenship. 22 an affidavit, written decades after his or her birth, stating 23 that he or she is the biological child of a United States citizen 24 and demand citizenship. 25 opportunities for fraud. 26 Miller, 523 U.S. at 437 (emphasis added). The If something at least Otherwise, a person could simply provide Such a system would be rife with It would be a strange result contrary to the intent of 27 Congress for petitioner to obtain United States citizenship by 28 birth simply because he was fortunate enough to move to Arizona 16 1 before the age of twenty-one without his father taking any 2 affirmative steps to acknowledge a paternal relationship with 3 him. 4 establish the duty of natural parents to support their 5 children. 6 legislative intent was to . . . require the father to support and 7 educate and give a home to, or otherwise provide for, his 8 children born out of wedlock, who, by reason of their tender 9 years, need such care . . . . ); Moreno, 3 Ariz. App. At 363. 10 The statute affords all children rights, but does not create a 11 procedure for establishing paternity by legitimation. 12 Arizona law, being legitimate does not establish a paternal link 13 between a child and a particular parent. 14 legitimation to a legal establishment of paternity, as envisioned 15 by Congress, Arizona law declares all children legitimate and 16 makes a determination of paternity of a child a separate inquiry. Arizona s legitimacy statute appears to have been meant to See In re Silva s Estate, 32 Ariz. at 577-78 ( [T]he Under Instead of linking Even though petitioner was legitimate under Arizona 17 18 law, Gitelman took no steps to establish his paternity, by 19 legitimation or otherwise, before petitioner s twenty-first 20 birthday. 21 paternity because he did not deny that he was petitioner s father 22 before petitioner was twenty-one years old. 23 attempt to establish his paternity or formally acknowledge it in 24 any fashion until petitioner was at risk of deportation in 2000 25 and Sinclair asked for his help in petitioner s deportation 26 proceedings. 27 references to friends that he had a son in England are not the 28 same as legally establishing his paternity of petitioner. Petitioner argues that Gitelman established his Gitelman did not Gitelman s failure to deny paternity and occasional 17 It is 1 highly doubtful that Congress envisioned that a child could 2 receive citizenship by virtue of a blood relationship with a 3 father that had no contact with his child and who was not even 4 aware that his child was in the United States. 5 a citizen by virtue of his Arizona residency because his 6 paternity was not established by legitimation. 7 go through any procedure, let alone legitimation as required by § 8 1409(a), to establish his paternity before petitioner s twenty- 9 first birthday. Petitioner is not Gitelman did not In support of his position, petitioner urges the court 10 11 to follow two cases, O Donovan-Conlin and Lau. 12 cases are distinguishable, because neither interpreted the phrase 13 paternity by legitimation and instead found that a child was 14 legitimate for immigration purposes under the law of a state 15 that had abolished legitimacy. 16 Supp. 2d at 1082 (finding that the child was legitimate under the 17 law of Arizona for immigration purposes by virtue of his 18 biological tie); Lau, 563 F.3d at 551 (holding that because 19 Chinese law makes all children legitimate the petitioner was a 20 legitimate child for purposes of 8 U.S.C. § 1101(b)(1)3). However, these See O Donovan-Conlin, 255 F. The 21 22 23 24 25 26 27 28 3 8 U.S.C. § 1101(b)(1) defines a child for the purposes of Chapters I and II of the INA as: an unmarried person under twenty-one years of age who is(A) a legitimate child; or . . . (C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at 18 1 court agrees with the reasoning of Flores-Torres, that to hold 2 that petitioner had his father s paternity established by 3 legitimation when he took no affirmative legal steps to connect 4 himself to his child in any manner would read the words by 5 legitimation out of the statute. 6 language of the statute and Congress s intent to avoid fraud. 7 Accordingly, petitioner does not meet the requirements of § 8 1409(a) under Arizona law. 9 10 2. This is contrary to the plain Michigan Petitioner was at one time a resident of Michigan. 11 Petitioner argues that Gitelman s paternity was established by 12 legitimation because under Michigan law (1) a presumption of 13 paternity exists until rebutted by the father; (2) a father can 14 legitimate a child by acknowledging paternity in writing; and (3) 15 discrimination against illegitimate children is prohibited. 16 presumption of paternity petitioner identifies appears in section 17 29 of Michigan s Divorce Act, Mich. Comp. Laws § 552.29. 18 29 states that [t]he legitimacy of all children begotten before 19 the commencement of any action under this act shall be presumed 20 until the contrary be shown. 21 Divorce Act therefore provides for a presumption of legitimacy 22 for children born into a marriage in a divorce action. 23 Shepherd v. Shepherd, 81 Mich. App. 465, 469 (1978) ( By statute 24 and case law, it is presumed that any child conceived or born to Mich. Comp. Laws § 552.29. The Section The See 25 26 27 28 the time of such legitimation[.] The difference in the statue between a legitimate child under subsection (A) and a child legitimated through legitimation in subsection (B) further reinforces the notion that there is a distinction between legitimacy and legitimation. 19 1 a married couple prior to the commencement of a suit for divorce 2 is legitimate. ) 3 because his parents never married. 4 This presumption is inapplicable to petitioner Petitioner next argues that he was legitimated under 5 former Michigan Compiled Laws section 702.83 when Gitelman signed 6 an affidavit in 2000 stating that he is petitioner s biological 7 father. 8 that a child born out-of-wedlock could be legitimated with the 9 identical status, rights and duties of a child born in lawful 10 wedlock, effective from its birth upon either the marriage of 11 its parents or if the father and mother filed a written 12 acknowledgment of paternity with the probate court. 13 Laws § 702.83 (1965); see In re Estate of Jones, 207 Mich. App. 14 544, 550 (1994). 15 Section 702.83, which was repealed in 1979, provided Mich. Comp. Gitelman did not fulfill the requirements of section 16 702.83 for two reasons. First, the Gitelman s affidavit was 17 written in 2000, twenty-five years after petitioner s twenty- 18 first birthday. 19 retroactively from birth, the plain language of § 1409(a) clearly 20 states that the establishment of paternity by legitimation must 21 occur before the child reaches the age of twenty-one. 22 means that the act of legitimation must occur before the 23 petitioner reaches twenty-one years of age. 24 Cortez, 16 I. & N. Dec. 289, 289 (1977). 25 effectively nullify the twenty-one year period for legitimation 26 in § 1409(a). 27 failed to establish petitioner s legitimation because his 28 affidavit of paternity was not signed before petitioner became While section 702.83 legitimates a child This See Matter of To hold otherwise would Therefore, under the terms of § 1409(a), Gitelman 20 1 twenty-one years old. 2 was timely, petitioner was not legitimated under section 702.83 3 because Gitelman did not file his written acknowledgment of 4 paternity with the Michigan probate court in contravention of the 5 statute. 6 Second, even assuming Gitelman s affidavit Petitioner s final argument is that Michigan has found 7 arbitrary classifications of illegitimate children to be 8 unconstitutional. 9 (1979). See Smith v. Robbins, 91 Mich. App. 284 However, petitioner has no authority that indicates that 10 Michigan abolished the concept of legitimacy and has not 11 explained why Michigan s legitimation procedure is an arbitrary 12 classification. 13 the Michigan Paternity Act must be interpreted so as not to 14 create a distinction between illegitimate children of unwed 15 mothers and illegitimate children of wed mothers. 16 Mich. App. at 291. 17 legitimation law as applied to petitioner at the time was 18 unconstitutional, petitioner cannot succeed in claiming that 19 Gitelman could have established paternity by legitimation. 20 if petitioner is correct and Michigan has abolished the concept 21 of legitimacy, he cannot identify a statue that legitimated him. 22 If there is no possible mechanism for Gitelman s paternity to be 23 established by legitimation, then petitioner cannot acquire 24 citizenship under the clear language of § 1409(a). 25 Torres, 2009 WL 5511156, at *6. The only case petitioner cites merely holds that See Smith, 91 Without any explanation as to why Michigan Even See Flores- 26 3. 27 Petitioner was also a resident of Minnesota from 1971 28 Minnesota or 1972 until July 1975. Petitioner argues that he was 21 1 legitimated under Minnesota law in accordance with former 2 Minnesota Statutes section 517.19 (1976), which provided that 3 children of prohibited marriages were legitimate. 4 English law permitted marriage between persons who were not 5 widows or widowers and were between the ages of sixteen and 6 twenty-one only with the consent of the parties parents or 7 guardians. 8 3, 78 (Eng.). 9 apply to a court to grant consent for the marriage. In 1954, Marriage Act, 1949, 12, 13, & 14 Geo. 6, c. 76 §§ 2If consent was not given, the parties could then Id. § 3. At 10 the time of petitioner s residency in Minnesota, section 517.19 11 provided that [i]llegitmate children shall become legitimated by 12 the subsequent marriage of their parents to each other, and the 13 issue of marriages declared null in law shall nevertheless be 14 legitimate. 15 legislature then amended section 517.19 in 1978, after 16 petitioner s twenty-first birthday, to add that [c]hildren born 17 of a prohibited marriage are legitimate. 18 (1978). 19 marriage because Sinclair was seventeen at the time of his birth, 20 and thus unable to marry twenty-one year old Gitelman without the 21 permission of Sinclair s parents. 22 Minn. Stat. § 517.19 (1976). The Minnesota Minn. Stat. § 517.19 Petitioner argues that he was born of a prohibited Under either version of the statute, petitioner has not 23 been legitimated under Minnesota law. 24 applies, section 517.19 did not allow for children of prohibited 25 marriages to become legitimated. 26 that a child could be legitimated only when his or her parents 27 married each other or were in a marriage that was nullified. 28 Since petitioner s parents were never married, he was not 22 If the pre-1978 statute Instead, the statute provided 1 legitimated under the pre-1978 version of section 517.19. 2 If the post-1978 version of the statute applies, 3 petitioner has not established that he was born of a prohibited 4 marriage. 5 marriage entered into prior to the dissolution of an earlier 6 marriage of one of the parties and various incestuous marriages. 7 See Minn. Stat. § 517.03 (1978). 8 children born into marriages which Minnesota refuses to recognize 9 at law will nonetheless be considered legitimate. Section 517.03 defines prohibited marriages as a The section implies that Petitioner s 10 parents never entered into a marriage at all, let alone one of 11 the types of prohibited marriages prescribed by Minnesota law. 12 Sinclair and Gitelman were not completely prohibited from 13 marrying. 14 marry, which neither attempted to do, or married after Sinclair s 15 twenty-first birthday under English law. 16 12, 13, & 14 Geo. 6, c. 76 §§ 2-3, 78 (Eng.). 17 petitioner has not established that he is a child of a prohibited 18 marriage and was not legitimated under Minnesota law. They could have either obtained court consent to See Marriage Act, 1949, Accordingly, 19 4. 20 Petitioner could also be legitimated under the law of Massachusetts 21 Massachusetts, since it was his father s domicile. 22 Gitelman s presence in England for military service, 23 Massachusetts remained his domicile because [s]ervice personnel 24 are presumed not to acquire a new domicile when they are 25 stationed in a place pursuant to orders; they retain the domicile 26 they had at the time of entry into the service. 27 Wright, Arthur R. Miller. & Edward H. Cooper, 13 E Federal 28 Practice and Procedure § 3617 at 567 (3d ed.). 23 Despite Charles Alan Petitioner argues 1 that he was legitimated under Massachusetts law because the 2 Massachusetts Supreme Court s holding in Lowell v. Kowlaski, 380 3 Mass. 663 (1980), which held that an acknowledged illegitimate 4 child has the same legal rights of inheritance as a legitimate 5 child, proves that he was legitimated. 6 The scope of the Lowell decision, however, is not as Prior to Lowell, a child born 7 expansive as petitioner argues. 8 out-of-wedlock could only be legitimated by marriage of his or 9 her natural parents together with an acknowledgment of paternity 10 by his or her father. Mass. Gen. Laws ch. 190 § 7 (1943). The 11 Lowell court determined that an illegitimate child is permitted 12 to inherit his or her biological father s estate if the father 13 has acknowledged his paternity to the same extent as he has to 14 any of his other children and struck down the previous version of 15 Massachusetts General Laws chapter 190 section 7. 16 380 Mass. at 670-71. 17 rule was limited only for the purposes of inheritance. 18 Matter of Oduro, 18 I. & N. Dec. 421, 424 (1983). 19 version of chapter 190 section 7 still maintained the previous 20 legitimation standard that existed before Lowell, stating: An 21 illegitimate person whose parents have intermarried and whose 22 father has acknowledged him as his child or has been adjudged his 23 father . . . shall be deemed legitimate and shall be entitled to 24 take the name of his parents to the same extent as if born in 25 lawful wedlock. 26 statute then went on to state that [i]f a decedent has 27 acknowledged paternity of an illegitimate person or if during his 28 lifetime or after his death a decedent has been adjudged to be See Lowell, This exception to the general legitimacy The amended Mass. Gen. Laws ch. 190 § 7 (1980). 24 See The 1 the father of an illegitimate person, that person is heir of his 2 father . . . . Id. 3 It is therefore clear that Massachusetts carved out an 4 exception that permitted a simple acknowledgment of paternity to 5 be sufficient for inheritance purposes, but not to legitimate a 6 child for all other purposes under Massachusetts law. 7 Accordingly, Lowell does not apply to petitioner s case, since he 8 is attempting to show legitimation for a purpose other than 9 inheritance. Gitelman did not marry petitioner s biological 10 mother and acknowledge his paternity. 11 Petitioner thus was not legitimated under Massachusetts law. 12 5. England 13 English law is also relevant to petitioner s 14 citizenship claim, since he resided in England from 1954 until 15 moving to the United States in 1965. 16 time of petitioner s birth, a child born out-of-wedlock could be 17 legitimated through the subsequent marriage of the child s 18 parents, adoption, a special act of Parliament, and in certain 19 instances, if the child s parents were in a voidable marriage. 20 See Legitimacy Act, 1926, 16 & 17 Geo. 5, ch. 60 (Eng.); 21 Legitimacy Act, 1959, 7 & 8 Eliz. 2, ch. 73 (Eng.). 22 clearly did not adopt petitioner or marry Sinclair, and 23 accordingly he was not legitimated under the English legitimacy 24 laws in existence before petitioner was twenty-one years old. 25 Under English law at the Gitelman However, petitioner contends that he was legitimated 26 under the English law because the concept of illegitimacy no 27 longer exists in England due to the enactment of the Human Rights 28 Act, 1998, ch. 42 (Eng.). The Human Rights Act implemented the 25 1 European Convention on Human Rights ( ECHR ) into English law. 2 Article 14 of the ECHR includes language prohibiting 3 discrimination based on birth or other status. 4 argues that the Human Rights Act was retroactive in effect and 5 that he was legitimated before the age of twenty-one under 6 English law because the concept of illegitimacy was retroactively 7 abolished. 8 proposition, that the Human Rights Act is not retrospective in 9 English courts. Petitioner However, it is now settled, as a general Re: McKerr, [2004] UKHL 12, 16; see also Wilson 10 v. Sec y of State for Trade & Industry, [2003] UKHL 40 ( to apply 11 [the Human Rights Act] in such cases, and thereby change the 12 interpretation and effect of existing legislation, might well 13 produce an unfair result for one party or the other. 14 Rights Act was not intended to have this effect. ); Reginia v. 15 Lambert, [2001] UKHL 31. 16 legitimated by Gitelman under English law because the Human 17 Rights Act s changes to legitimacy law were not retrospective and 18 enacted well after petitioner s twenty-first birthday.4 19 C. The Human Petitioner therefore was not Citizenship Through Ted Anderson Petitioner also argues that he can obtain citizenship 20 21 through Ted Anderson as his adoptive father because Ted should be 22 treated as petitioner s biological father from the moment of 23 adoption. 24 clearly stated that an adoptive father cannot transmit The Supreme Court and Ninth Circuit, however, have 25 26 27 28 4 Although petitioner objects to the qualifications of the United States s expert under Federal Rule of Evidence 702, the objection is irrelevant, since the court did not rely upon either expert s opinion in reaching its decision, but rather independently interpreted the laws of England. 26 1 citizenship at birth to his adoptive child as a biological 2 father can under § 1409(a). 3 majority of the court indicated that the 1952 version of § 4 1409(a) requires a biological relationship between the out-of- 5 wedlock child and a father to transfer citizenship at birth. 6 Justice Stevens, writing for himself and Chief Justice Rehnquist, 7 noted that, [a]s originally enacted in 1952, § 1409(a) required 8 simply that the paternity of such child [born out-of-wedlock] is 9 established while such child is under the age of twenty-one years In Miller, 523 U.S. 420 (1998), a 10 by legitimation. . . . The section offered no other means of 11 proving a biological relationship. 12 (citation omitted). 13 Ginsburg and Souter, similarly stated that American statutory 14 law has consistently recognized the rights of American parents to 15 transmit their citizenship to their children. 16 (Breyer, J., dissenting) (citations omitted). 17 further noted that ever since the Civil War, the transmission of 18 American citizenship from parent to child, jus sanguinis, has 19 played a role secondary to that of the transmission of a 20 citizenship by birthplace, jus soli. 21 understanding of the nature of the transmission of citizenship at 22 birth therefore indicates an understanding of the existence of a 23 biological relationship between parent and child. 24 Miller, 523 U.S. at 435 Justice Breyer, writing for Justices Id. at 477 Justice Breyer Id. at 478. The Justices The Ninth Circuit confirmed this interpretation of § 25 1409(a) in Martinez-Madera, where it held that the theory that a 26 child can derive citizenship by birth from a subsequent U.S. 27 citizen stepfather . . . [is] an untenable and paradoxical 28 reading of § 1401 s requirement that one be born in wedlock to a 27 1 U.S. citizen to derive citizenship from that parent. Martinez- 2 Madera, 559 F.3d at 942 (citation omitted). 3 reiterated this interpretation in United States v. Marguet- 4 Pillado, 560 F.3d 1078 (9th Cir. 2009), finding that § 1409(a) s 5 reference to paternity and to the requirement that a person be 6 born . . . of a United States citizen along with the 7 application of the section to children born out-of-wedlock made 8 it difficult to see how a man could have a child out of 9 wedlock if he was not that child s biological father. The Ninth Circuit Marguet- 10 Pillado, 560 F.3d at 1083. 11 a blood relationship is not required when a child is born during 12 marriage and at least one parent is a United States citizen, the 13 law of the circuit is clear that when a child is born out-of- 14 wedlock a biological relationship must exist between a citizen 15 parent and the child to transmit citizenship at birth. 16 Scales, 232 F.3d at 1166; Solis-Espinoza, 401 F.3d at 1099 with 17 Marguet-Pillado, 560 F.3d at 1083; Martinez-Madera, 559 F.3d at 18 942. 19 While the Ninth Circuit has held that Compare Furthermore, the construction of the 1952 version of 20 the INA reveals that Congress intended a biological relationship 21 exist between an out-of-wedlock child and a United States citizen 22 parent to transmit citizenship at birth. 23 interpretation of the statue is correct, there would have been no 24 need for the naturalization provision of former § 1434, entitled 25 Children Adopted by United States Citizens, which allowed a 26 child adopted by a United States citizen to naturalize before 27 turning eighteen years-old if the adopting citizen complied with 28 the section s requirements. If petitioner s See 8 U.S.C. § 1434 (repealed 1978). 28 1 While a title alone is not controlling, I.N.S. v. St. Cyr, 533 2 U.S. 289, 308 (2001), the separate naturalization provisions for 3 adopted children along with the language of § 1409(a) indicate 4 that Congress intended that a biological relationship exist 5 between a citizen parent and child for a child to be entitled to 6 birthright citizenship. See Marquez-Marquez, 455 F.3d at 557. Congress debated amending the citizenship at birth 7 8 provisions in 2000 to allow foreign born children who were 9 adopted by United States citizens to become citizens 10 retroactively at the moment of adoption, as if citizenship was 11 transferred to them at birth. 12 the provisions because: 13 14 15 16 However, Congress did not amend Both the Departments of Justice and State objected to the bill as originally drafted because it confused the fundamental distinction between acquisition of citizenship at birth and through naturalization . . . In response to the Administration s concerns, the Committee modified the bill to amend the naturalization provisions and grant automatic citizenship, retroactive to the date that the statutory requirements are met. 17 18 Matter of Rodriguez-Tejedor, 23 I & N Dec. 153, 161-62 (2001). 19 Congress continues to recognize a distinction between acquisition 20 of citizenship at birth, which requires a biological tie, and 21 naturalization, which serves as a mechanism for adopted children 22 to acquire citizenship. 23 Congress did not intend for the citizenship at birth provisions 24 to apply retroactively to adopted children born out-of-wedlock. This serves as a clear signal that 25 Under the laws as they existed at the time of 26 petitioner s birth, Ted Anderson could not transmit his 27 citizenship to petitioner at birth as if he was his biological 28 father. While petitioner could have obtained citizenship through 29 1 the INA s naturalization provisions, he chose not to do so. 2 Accordingly, petitioner is not a United States citizen by virtue 3 of his adoption by Ted Anderson. 4 IT IS THEREFORE ORDERED that petitioner s request for a 5 declaration that he is a United States citizen be, and the same 6 hereby is, DENIED. 7 The Clerk shall forthwith certify the trial record and 8 this order to the United States Court of Appeals for the Ninth 9 Circuit for further proceedings. 10 DATED: April 27, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30

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