Joseph Romero-Mendoza v. Eric H. Holder Jr.
2011 U.S. App. LEXIS 25071
9th Cir.2011Background
- Romero petitions for review of a BIA decision dismissing his appeal from removal orders.
- BIA found Romero removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for a crime of violence and denied relief.
- Romero claims derivative citizenship through his mother’s 1997 naturalization, which would preclude removal.
- The central issue is whether Romero’s paternity was legitimated under Salvadoran law, affecting derivative citizenship.
- Romero was born in El Salvador out of wedlock in 1979; his mother naturalized in 1997; his birth certificate lists his father; he entered the U.S. as an LPR in 1993.
- The court affirms, holding Romero failed to establish derivative citizenship due to legitimation under Salvadoran law, leaving removal based on the crime of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Derivative citizenship under § 1432 hinges on legitimation. | Romero argues his paternity was not legitimated. | Holder contends Salvadoran law legitimated Romero. | Derivative citizenship not established; Romero removable. |
| Effect of Salvadoran constitutional change on legitimation. | Romero asserts change does not retroactively legitimize him. | Moraga-1983 amendment places out-of-wedlock children in same position. | Salvadoran law changes apply; Romero is legitimated. |
| Role of Ayala-Villanueva in determining derivative citizenship. | Affirmative reliance on Ayala-Villanueva to defeat alienage. | Ayala-Villanueva supports legitimation affecting derivative citizenship. | Ayala-Villanueva applied; derivative citizenship defeated. |
Key Cases Cited
- Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) (derivative citizenship affected by parental legitimation under Salvadoran law)
- Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005) (derivative citizenship determined by law at time of mother’s naturalization)
- Moraga v. Morales, 23 I. & N. Dec. 195 (BIA 2001) (1983 Salvadoran constitutional change eliminating legitimation distinctions)
- Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. 2009) (recognizes effect of Salvadoran law on legitimation and derivative citizenship)
- Matter of Ramirez, 16 I. & N. Dec. 222 (BIA 1977) (pre-1983 rules on legitimation prior to constitutional amendment)