Juan Jose MARTINEZ-MADERA, Petitioner, v. Eric HOLDER, Jr., Attorney General, Respondent.
No. 06-73157.
United States Court of Appeals, Ninth Circuit.
March 16, 2009.
559 F.3d 937
Argued and Submitted April 17, 2008.
Furthermore, in the event that a previously unforeseen cause of action becomes apparent during a trial proceeding pursuant to an order granting relief from the automatic stay, numerous avenues of relief are available to a creditor to ensure that any resulting judgment does not violate the scope of the order. A creditor could petition the bankruptcy court for relief that is broad enough to encompass the cause of action; could seek an order from the bankruptcy court clarifying the relief from stay order, see Alonso v. Summerville (In re Summerville), 361 B.R. 133, 144 (9th Cir. BAP 2007) (stating “[t]he bankruptcy court had jurisdiction to clarify its [relief from stay] order“); or, if a judgment has been entered on a cause of action that was not pending at the time the relief was granted, could seek retroactive relief from the stay that is broad enough to encompass the judgment, see, e.g., Mataya v. Kissinger (In re Kissinger), 72 F.3d 107, 109 (9th Cir. 1995); Schwartz v. United States (In re Schwartz), 954 F.2d 569, 572 (9th Cir. 1992) (stating ”
Thus, because the reasoning of Nugent both furthers the purpose of the automatic stay and leaves creditors with sufficient procedural safeguards to ensure that any judgment that is rendered is either within the intended scope of the order granting relief from the stay or ratified by an order granting retroactive relief, we adopt it and hold that an order granting limited relief from an automatic stay to allow a creditor to proceed to judgment in a pending state court action is effective only as to those claims actually pending in the state court at the time the order modifying the stay issues, or that were expressly brought to the attention of the bankruptcy court during the relief from stay proceedings.
CONCLUSION
For the foregoing reasons, we AFFIRM the BAP judgment.
Andrew Oliveira, U.S. Department of Justice, Washington, D.C., for the respondent.
Before: STEPHEN S. TROTT and SIDNEY R. THOMAS, Circuit Judges, and MICHAEL R. HOGAN,* District Judge.
Opinion by Judge TROTT: Dissent by Judge THOMAS.
TROTT, Circuit Judge:
Is an unnaturalized person (1) born in Mexico, (2) to unwed Mexican citizen parents, (3) whose mother later married in Mexico a United States citizen, who treats that person as his son, and (4) who with his family moves to the United States, a citizen of the United States? The answer according to the law is “no.”
I OVERVIEW
Juan Jose Martinez-Madera petitions for review of a decision of the Board of Immigration Appeals (“BIA“), dismissing
II BACKGROUND
Petitioner was born in Mexico in January 1953. His biological parents were both Mexican citizens and were never married. Six months after Petitioner was born, his mother Thomasa Madera (“Madera“) met and began a relationship with Jesus Gonzalez (“Gonzales“), a United States citizen.
The couple married in February 1960 and, in December 1965 moved with Petitioner and his half-siblings to California. Petitioner has lived there ever since. The record does not contradict Petitioner‘s assertion that since he was six months old, Gonzalez has held Petitioner out and treated him as his son. However, Gonzalez never legally adopted Petitioner. Petitioner‘s mother became a naturalized citizen in 1995. By that time, Petitioner was forty-three years old. There is no evidence Petitioner made any effort to become naturalized.
In October 1996, Petitioner pled nolo contendere to attempted murder under circumstances that involved domestic violence with a firearm. He served an enhanced eight-year criminal sentence. He was released on September 22, 2005. On September 8, 2005, removal proceedings were initiated against Petitioner on the ground that he was deportable as an aggravated felon under
On appeal to the BIA, Petitioner argued that he derived U.S. citizenship when his stepfather, Gonzalez, allegedly legitimated him as his son “in accordance with California‘s legitimation statute.” The BIA reviewed Petitioner‘s case de novo and dismissed his appeal. After reviewing the facts, the relevant statutory framework, and our decisions in Scales v. I.N.S., 232 F.3d 1159 (9th Cir. 2000), and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), the BIA concluded that Petitioner had not carried his burden to establish U.S. citizenship. The BIA provided a thoughtful analysis of Petitioner‘s argument:
The court‘s decision in Scales v. INS, involved a child who was born to a non-citizen woman who was married at the time of the child‘s birth to a United States citizen. That man accepted the child and acted as his father, even though he was not the biological father of the child. The court observed in Scales that while the “blood relationship” requirement in
8 U.S.C. § 1409 applied to an illegitimate child, the requirement applied only to an illegitimate child and that it did not apply to someone who was not born “out of wedlock.” The court determined that the respondent in that case was not illegitimate, since he was “born to parents who were married at the time of his birth,” even though the husband in that married couple was not the child‘s biological father. Thus, the court concluded that§ 1409 did not apply to him, and then determined that the respondent qualified for United States citizenship under§ 1401 ,despite the lack of a blood relationship between the child and the United States citizen parent, since the statute did not require a blood relationship for citizenship, other than the requirement under § 1409 applicable only to a child born out of wedlock. The court further recognized in Solis-Espinoza v. Gonzales, that there should be no distinction on the issue of legitimation, where an individual such as the respondent in the case before us, who was acknowledged and accepted into the family by the mother‘s United States citizen husband, and was otherwise treated as if he were a legitimate child, and adopted as such; and the situation in Scales v. INS, where the father of an illegitimate child acknowledges and with the consent of the United States citizen spouse, brings the child into the family; and concluded that public policy dictates that in both instances such child is deemed for all purposes legitimate from the time of its birth.However, notwithstanding the foregoing discussion, we find the respondent does not benefit from the Ninth Circuit decisions in either Solis-Espinoza v. Gonzales, or Scales v. INS. As noted above, in both Solis-Espinoza and Scales, the court found that there was an existing marital relationship between one of the biological parents and the stepparent at the time the child was born so that the child was not considered to be illegitimate or born out of wedlock and was therefore not barred from establishing citizenship under
8 U.S.C. § 1401(g) . In contrast, in the respondent‘s case, the respondent‘s natural parents were both unmarried and Mexican citizens at the time of the respondent‘s birth, and the respondent‘s mother did not marry his United States citizen stepfather until 1960 seven years after he was born. Consequently, he may not benefit from those decisions. (Internal citations omitted).
The BIA thus concluded that Petitioner was not entitled to derivative citizenship and was therefore removable as an aggravated felon under
III DISCUSSION
Standard of Review
We review de novo a claim of citizenship. Solis-Espinoza, 401 F.3d at 1092. Because the BIA‘s review was de novo, our “review is limited to the decision of the BIA.” Scales, 232 F.3d at 1162.
Analysis
“There are ‘two sources of citizenship, and two only: birth and naturalization.‘” Miller v. Albright, 523 U.S. 420, 423 (1998) (citing United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). “Evidence of foreign birth . . . gives rise to a rebuttable presumption of alienage, and the burden then shifts to the petitioner to prove citizenship.” Scales, 232 F.3d at 1163. “The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child‘s birth.” Id. at 1162 (citing United States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th Cir. 1998)) (quoting Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995)) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990)).
In both Scales and Solis-Espinoza,1 one of the petitioner‘s biological parents was
As recognized by the BIA, Solis-Espinoza and Scales, upon which Petitioner relies, are manifestly distinguishable and thus not controlling. See 401 F.3d 1090; 232 F.3d 1159. In each case, the person claiming citizenship was born into a marital relationship between a citizen and an alien. In contrast, Martinez-Madera was born in Mexico of unwed Mexican parents, neither of whom was married to a United States citizen at the time of Martinez-Madera‘s birth.
We agree with the Fifth Circuit‘s resolution of a case with similar facts. In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006), that court held that a person born of unwed Mexican parents in Mexico did not become a United States citizen by virtue of her later adoption by a United States citizen, who was married to neither of her parents at the time of her birth. Our sister circuit properly distinguished Scales and Solis-Espinoza, and quoted the following from an unpublished decision of our own circuit: “Crider was born of parents neither of whom were or are citizens of the United States. He could not have been a citizen ‘at birth.’ There is no conceivable way to place him within the reach of
Petitioner relies on California‘s legitimation statute,
First, former
Second, Petitioner‘s authority does not hold that an alien parent who is unmarried at the time of the birth of a person who later claims citizenship may be deemed to have been married to a citizen at the time of birth.
As for
The dissent claims that “one would be hard-pressed to come up with a logical reason” to explain this result. Beyond those reasons articulated throughout this opinion, we would add only that one would be even more “hard-pressed” to come up with a logical reason to explain the dissent‘s desired result—that a person born out of the country to two unwed non-citizen parents can derive citizenship “by birth” from a subsequent U.S. citizen stepfather—is not an untenable and paradoxical reading of
IV CONCLUSION
The foregoing leads to the unsurprising conclusion that Petitioner, born to two unwed non-citizen parents, cannot be deemed “born in wedlock” under
As in the case of Tuan Anh Nguyen, Petitioner‘s blocked path to citizenship is “due to the serious nature of his criminal offense[ ], not . . . to any supposed rigidity or harshness in the citizenship laws.” Id. at 71. Among other options, the naturalization door was open to him, but he did not elect to pass through it, choosing in-
Petition DENIED.
THOMAS, Circuit Judge, dissenting:
The majority concludes that a child raised from the age of six months by a non-biological citizen father is not a citizen. Our case law, the governing federal and state statutes, and a proper application of the principles of cooperative federalism compel a different conclusion. Thus, I must respectfully dissent.
I
Juan Jose Martinez-Madera moved to the United States when he was six years old and has now lived here for over forty years. Martinez-Madera‘s mother began a relationship with Jesus Gonzales, the man Martinez-Madera regards as his father, when Martinez-Madera was an infant. The IJ found it undisputed that “since [Martinez-Madera]‘s age of 6 months Mr. Gonzales . . . has held out that [Martinez-Madera] is to be his son and addresses him and adopted him into the family . . . . He has always held [Martinez-Madera] out to be a son and part of the family.” Martinez-Madera‘s parents had six biological children together between 1954 and 1966. They married in 1960. Throughout his entire childhood, Martinez-Madera lived with his parents and siblings as a family unit. Gonzales provided for the entire family and publicly held himself out as Martinez-Madera‘s father.
Now, Martinez-Madera claims derivative citizenship through Gonzales, a United States citizen. He cites our cases Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), which establish that a person of foreign birth may derive citizenship through a non-biological U.S. citizen parent under
Under California law, Martinez-Madera was clearly born in wedlock and thus derives United States citizenship from his father. The majority ignores the precedent set by Scales and Solis-Espinoza and in doing so contradicts established public policy and an express provision of the Immigration and Nationality Act (“INA“).
II
In Scales, we first had the opportunity to consider whether a person of foreign birth may derive U.S. citizenship through a non-biological parent. We examined the two relevant statutory provisions—
In Solis-Espinoza, we confronted “a situation much like [that of Scales], but with the genders of the parents reversed.” Solis-Espinoza, 401 F.3d at 1093. As in Scales, we looked to state law to determine whether the petitioner was born in or out of wedlock. We observed that “[t]he relevant state of domicile for Solis-Espinoza and his father was California,” id. at 1093, and thus applied a California state law in effect at the time. That law provided:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.
The majority attempts to distinguish Scales and Solis-Espinoza on the ground that Martinez-Madera was born “out of wedlock” because his parents were not married at the time of his birth.1 However, this difference does not vitiate the requirement of Scales and Solis-Espinoza that we look to state law to determine whether the petitioner is legitimately the child of the citizen parent.
III
In looking to state law, Scales and Solis-Espinoza adhered to an express provision of the INA. We have previously held:
Legitimacy is a legal concept, and the law determines whether and under what circumstances a child it has denominated illegitimate may become legitimate. The Immigration and Nationality Act provides that a child who is unmarried and under twenty-one years of age can be 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 the time of such legitimation.
Burgess v. Meese, 802 F.2d 338, 340 (9th Cir. 1986) (emphasis added) (citing
IV
Denying Martinez-Madera‘s derivative citizenship claim also contravenes the public policy considerations we have traditionally respected in such cases.
First, as we observed in Solis-Espinoza: “Public policy supports recognition and maintenance of a family unit. The INA was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members.” Solis-Espinoza, 401 F.3d at 1094. See also H.R. Rep. 85-1199, pt. 2, reprinted in 1957 U.S.C.C.A.N. 2016, 2021 (the INA “implements the underlying intentions of our immigration laws regarding the preservation of the family unit.“). Martinez-Madera lived with his parents and siblings as a family unit throughout his entire childhood and has resided in the United States for over forty years. To deny him derivative citizenship and deport him to Mexico is unjust, illogical, and does nothing to further U.S. immigration policy.
Second, the majority‘s interpretation violates the principles of cooperative federalism. “Family relations are a traditional area of state concern.” Moore v. Sims, 442 U.S. 415, 435 (1979); see also H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (noting the importance of the state interest in family relations). Federal courts have no general jurisdiction over domestic relations, Ankenbrandt v. Richards, 504 U.S. 689, 697-701 (1992), while “state courts have a special expertise and experience” in family relations, H.C., 203 F.3d at 613 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)).
The best method of advancing these two policy objectives is to hold—consistent with the INA, Solis-Espinoza, and Scales—that state law governs determinations of legitimacy.
V
For all of these reasons, I would hold that courts should look to state law to determine whether a person may properly be considered “legitimate” or “born in wedlock” for the purposes of
Because the majority has concluded otherwise, I must respectfully dissent.