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5th Circuit

Iracheta v. Holder (5th Circuit, September 11, 2013)

GRAVES, Reavley, Elrod

Summary:Petitioner filed a petition for review from the Department of Homeland Security’s (DHS) reinstatement of his prior removal order on the basis that he acquired citizenship from his U.S. citizen father at birth.

Saldana was born in Mexico, out of wedlock, to his U.S. citizen father and Mexican citizen mother. His parents registered his birth when he was 29 months old, and both added their names to his birth certificate.  DHS has denied or dismissed all of Saldana’s previously filed N-600s and is currently attempting to revoke Saldana’s sister’s certificate of citizenship, which is subject to the same laws as Saldana. However, the Fifth Circuit held that “…prior to this appeal, no decisionmaker has clearly applied the correct Mexican statutes to Saldana’s claim of citizenship.” Agencies have cited provisions of the Mexican Constitution that never existed or that do not state what DHS claims they do.. Under the applicable citizenship law, Saldana is required to establish that he was legitimated before age 21 under the laws of the Mexican state where he resided or was domiciled as a child which, in his case, is the state of Tamaulipas, Mexico. Further, Saldana must establish that before his birth, his father had ten years of residence in the United States, at least five of which were after age 14.

The Fifth Circuit found that Saldana acquired full filial rights under the laws of Tamaulipas and therefore paternity was established by legitimation, pursuant to INA § 309. The BIA has held that legitimation is defined as “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” In re Cabrera, 21 I. & N. Dec. 589 (BIA 1996); see also Lau, 563 F. 2d. It is thus the substance that matters rather than the legal label. The Court held that under the laws of Tamaulipas at the time, Saldana was acknowledged when his father put his name on Saldana’s birth certificate before the official registry. This gave Saldana the same rights as any child, and therefore he was legitimated.

At oral argument, the government conceded that Saldana’s father met the residency requirements of INA § 301. Saldana further provided sufficient evidence in support of the residency requirements. Therefore, as Saldana established the requirements of INA §§ 301 and 309, the Fifth Circuit held that he acquired U.S. citizenship from his father at birth and thus granted the petition for review.

Read the full opinion here.

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