UNITED STATES оf America, Plaintiff-Appellee, v. Ricardo AHUMADA-AGUILAR, aka Ricardo Ahumada; aka Ricardo Alfonso Hernandez, Defendant-Appellant.
No. 96-30065
United States Court of Appeals, Ninth Circuit
Argued and Submitted Aug. 5, 1996. Memorandum Decided Sept. 19, 1997. Withdrawn Oct. 2, 1998. Decided Sept. 2, 1999.
189 F.3d 1121
Jay W. Stansell and Michael Filipovic, Assistant Federal Public Defenders, Seattle, WA, for defendant-appellant. Donald M. Reno, Jr., Assistant U.S. Attorney, Seattle, WA, for plaintiff-appellee.
Opinion by Judge SCHROEDER; Dissent by Judge KLEINFELD.
ORDER
SCHROEDER, Circuit Judge:
The panel as constituted above has voted to grant the petition for rehearing and the attached opinion is ordered filed.
OPINION
Ricardo Ahumada-Aguilar appeals his conviction on two counts of illegal reentry by an alien with prior felony convictions,
A panel consisting of Judges Alarcon, Norris, and Kleinfeld initially filed an unpublished disposition in this case affirming the district court on September 19, 1997. Following a petition for rehearing, the panel withdrew submission of the case to await the Supreme Court‘s decision in Miller. In the meantime, Judge Norris retired from the court, and Judge Schroeder was drawn to take his place on the panel. Having now considered the separate opinions in Miller, we reverse Ahumada-Aguilar‘s conviction. Becausе we resolve Ahumada-Aguilar‘s equal protection claim in his favor, we need not reach the other issues he raises on appeal.
FACTS
According to her affidavit that is not contested, Ahumada-Aguilar‘s mother, Genoveva Hernandez, met Frederick J. Deutenberg in a restaurant in Nogales, Mexico in late December 1970. At that time, she was 19 years old and a citizen of Mexico. Deutenberg was 50 years old and a citizen of the United States of America. Hernandez and Deutenberg traveled throughout the United States from January to June 1971.
Sоmetime during the spring of 1971, Hernandez became pregnant. Deutenberg was the only person with whom she had sexual relations in 1971. When she told him that she was pregnant, Deutenberg became angry. Hernandez told Deutenberg that she could not continue to travel from place to place and that she would run away when she had the opportunity. Sometime thereafter, he gave Hernandez a small suitcase and $75.00 to purchase a ticket to Mexico.
Hernandez returned to Mexico late that summer. Ahumada-Aguilar was born on December 22, 1971 in Guadalajara, Mexico. In late 1972 or 1973, Hernandez went to the American consulate in Guadalajara to seek help in locating Deutenberg, but did not receive any assistance in her search. Hernandez entered the United States in 1976 accompanied by Ahumada-Aguilar. She continued in her attempts to find Ahumada-Aguilar‘s father by scanning phone
In 1985, Hernandez married a United States citizen and gained legal residency. She assisted Ahumada-Aguilar in obtaining а permanent resident alien registration card when he was 13 years old, based on her legal immigration status. Hernandez made a further attempt to locate Deutenberg by contacting the FBI. She was advised the FBI could not help her without a court order.
On July 15, 1987, Hernandez applied for public assistance funds. She listed “Frederick Duttenberg” [sic] as Ahumada-Aguilar‘s father. She also agreed to assist the welfare department in identifying Deutenberg and establishing paternity in order to force him to accept financial responsibility for his son. Hеrnandez and her son did not locate Deutenberg, but eventually learned he had died on April 17, 1994. They obtained a copy of his death certificate that is in this record, as is a copy of the certificate of his birth in Philadelphia.
On December 6, 1990, Ahumada-Aguilar was convicted in a state court in Tulare County, California of the crime of possession of cocaine, a felony. On October 10, 1991, while he was in custody for a traffic offense in Mount Vernon, Washington, Ahumada-Aguilar was interrogated by Darryl Essing, a United States Border Patrol Agent. Agent Essing prеpared and served an order to show cause (“OSC“) on Ahumada-Aguilar. The OSC required Ahumada-Aguilar to demonstrate why he should not be deported as the result of his prior conviction for possession of cocaine.
On November 18, 1991, Ahumada-Aguilar appeared at his deportation hearing. He admitted that he had been convicted of possession of cocaine. The immigration judge ordered that he be deported. He was deported two days later. Ahumada-Aguilar returned to the United States without the prior approval of the Attorney General. He was again deported on or about December 9, 1994. Following that date, Ahumada-Aguilar again reentered the United States without the permission of the Attorney General.
On June 7, 1995, Ahumada-Aguilar was indicted on two counts of illegally entering the United States after deportation as a convicted felon in violation of
The district court denied the motion. The district court held that Ahumada-Aguilar‘s equal protection argument was foreclosed by this court‘s 1995 decision in Ablang v. Reno, 52 F.3d 801 (9th Cir. 1995). The prosecutor then moved in limine to bar the defense from presenting evidence to the jury that Ahumada-Aguilar is a U.S. citizen to rebut the Government‘s evidence that he was an alien when he was deported. The court requested the defense to make an offer of proof regarding whether Ahumada-Aguilar met the evidentiary requirements of
Based on this offer of proof, which included the mother‘s affidavit, the district court granted the Government‘s motion to preclude Ahumada-Aguilar from offering any evidence at trial to support his affirmative defense that he was a U.S. citizen and not an alien. The court found that Deutenberg was a U.S. citizen at the time Ahumada-Aguilar was born and that Deutenberg was Ahumada-Aguilar‘s biological father. Thus, the court concluded that Ahumada-Aguilar satisfied the requirements of
The court ruled, however, that the citizenship defense could not be presented because Ahumada-Aguilar could not produce evidence that Deutenberg had agreed in writing to provide financial support for Ahumada-Aguilar until he reached the age of 18, as required by
“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.” Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990). A child born out of wedlock to a U.S. citizen father and an alien mother is subject to
The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person‘s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years—
(A) the person is legitimated under the law of the person‘s residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.
A. Ninth Circuit Law Before Miller v. Albright
Before the Supreme Court‘s decision in Miller, Ahumada-Aguilar‘s challenge would have failed under this court‘s case law, whether he was asserting his own rights or those of his father. When presented with a child‘s claim that she was denied equal protection, this court held in 1995 that additional proof provisions, like those contained in
Also prior to Miller v. Albright, we held in Wauchope v. United States Department of State, 985 F.2d 1407 (9th Cir. 1993) that it would be inappropriate to apply heightened scrutiny to a parent‘s equal protection claim as well. Appellants in Wauchope challenged a statute that placed additional requirements for citizenship on children born abroad to U.S. citizen mothers. Like Ahumada-Aguilar, but unlike Ablang, Wauchope‘s mother was deceased and thus unable to assert her own equal protection rights.3 We held that Wauchope had third-party standing to challenge the statute on the grounds that it discriminated against her mother on the basis of gender. Id. at 1411. A statute that discriminates on the basis of gender typically is subjected to heightened scrutiny. See United States v. Virginia, 518 U.S. 515, 532-33, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Nevertheless, we concluded in Wauchope that when reviewing an immigration statute, the Supreme Court‘s decision in Fiallo provided the appropriate standard: “a facially legitimate and bona fide reason,” or in equal protection terms, rational basis review. Wauchope, 985 F.2d at 1413-14.
B. The Supreme Court‘s Decision in Miller v. Albright
Considering Ahumada-Aguilar‘s challenge in light of the Supreme Court‘s decision in Miller, we now conclude that heightened scrutiny is appropriate and that
Justice O‘Connor observed that “[w]hile it seems clear that petitioner has a significant stake in challenging the statute and a close relationship with her father, she has not demonstrated a substantial hindrance to her father‘s ability to assert his own rights.” Miller, 118 S.Ct. at 1443 (O‘Connor, J., concurring). Miller‘s father was alive and had even initially filed his own suit. Justice O‘Connor observed that third-party standing has been permitted оnly when more “‘daunting’ barriers deterred the rightholder,” such as when the rightholder is deceased. Id. at 1444, citing Hodel v. Irving, 481 U.S. 704, 711-12, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987).
Thus it is significant for our case that in the view of two Justices, had Miller‘s father been deceased, Miller would have demonstrated third-party standing and they would have held
[L]ike Justice O‘Connor, I “do not share,” and thus I believe a Court majority does not share, “Justice Stevens’ assessment that the provision withstands heightened scrutiny.” I also agree with Justicе O‘Connor that “[i]t is unlikely” that “gender classifications based on stereotypes can survive heightened scrutiny,” a view shared by at least five members of this Court.
Id. at 1457-58 (Breyer, J., dissenting). Therefore, had the facts in Miller been like those in this case, a majority of the Court would have found
Our decision in United States v. Viramontes-Alvarado, 149 F.3d 912 (9th Cir. 1998) is not to the contrary. In that case, the defendant attempted to assert an equal protection claim on behalf of his father, contending that the California law on legitimation treats U.S. fathers differently from U.S. mothers. Id. at 916 n. 2. As in Miller, Viramontes-Alvarado‘s father was alive and, in fact, testified on behalf of his son at trial. Id. at 915. Accordingly, we noted that Viramontes-Alvarado‘s claim was rejected by the Supreme Court in Miller.
There remains a question as to whether Miller also compels the conclusion that
We see no reason to distinguish between the provisions in this case. Both rely on outdated stereotypes. See J.E.B. v. Alabama, 511 U.S. 127, 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (noting that gender-based discrimination is often reflective of outmoded generalizations аbout gender). Section 1409(a)(3) relies on the generalization that mothers are more likely to have close ties to and care for their children than are fathers. By requiring a U.S. citizen father to agree in writing that he will provide financial support to the child until the child reaches the age of 18, (a)(3) presumes that a father will not care for
The evidence in the record sufficiently demonstrates that Ahumada-Aguilar is the child of a U.S. citizen father, satisfying the requirements of
REVERSED AND REMANDED.
KLEINFELD, Circuit Judge, dissenting:
I dissent. The Supreme Court decided the same issue in Miller v. Albright1 a year ago. Yet today we follow the dissent. And we do so in the face of both pre-Miller2 and post-Miller3 Ninth Circuit decisions going the other way. The majority develops a novel interpretation of Miller. But if it were correct, Miller would have gone the other way.
The statute discriminates among illegitimate children according to the sex of the citizen parent. A citizen mother‘s child gets citizenship nearly automatically, but a citizen father‘s child must meet additional requirements.4 It does not matter what sex the child is, just what sex the unmarried citizen parent is.
For many years, lawyers representing children born of such unions, where the father was the non-citizen, have asserted claims that the sex distinction drawn by the statute is unconstitutional under the Equal Protection Clause. The claims were colorable until a solid wall of authority arose rejecting them. We held in Ablang v. Reno5 that the sex distinction was not unconstitutional. Then we held in this case, following Ablang, that it was not.6 We withdrew our disposition because the Supreme Court was about to rule on the question. It rejected the constitutional challenge by a child of a citizen father in Miller v. Albright.7 Then we considered the matter, subsequent to Miller, in Viramontes-Alvarado.8 We held that under Miller, the statute was not unconstitutional. Yet today, we hold that it is. That is a surprising approach to precedent.
In Miller v. Albright, the Supreme Court decision, the litigant was in the same position as Ahumada-Aguilar in all relevant respects (the illegitimate child of a citizen father and non-citizen mother). The litigant made the same Equal Protection argument. And in Miller, the child lost the case.
Figuring out what Miller means is not as complicated as the majority suggests. True, Miller is written in the old English appellate style, with most of the justices writing their own reasons for the decision, instead of a majority agreeing on one rationale. But the facts are simple enough: the child was оf a non-citizen mother and citizen father who were not married. And it is simple enough to count to six. Six is the number of justices who agreed that the child loses on the citizenship claim based on the Equal Protection Clause.
In Miller, the Supreme Court granted certiorari to answer the question:
Is the distinction in
8 U.S.C. § 1409 between “illegitimate” children of United States citizen mothers and “illegiti-mate” citizen fathers a violation of the Fifth Amendment to the United States Constitution?9
The Supreme Court‘s answer was no. We are therefore obligated to give the same answer.
Were the сount to six disputable, the dispute would be ended by our own post-Miller reading of Miller. Addressing the same Equal Protection Clause argument, we held in Viramontes-Alvarado10 that, “this argument has been rejected by the Supreme Court in Miller v. Albright.”11 I do not think there is any room whatsoever, regardless of how impressed we may be with the force of the Equal Protection claim, for us to accept it. We are bound by precedent of our court, the Supreme Court, and our court construing the Supreme Court decision, to reject it.
In Miller, Justice Stevens, joined by Chief Justice Rehnquist, said the distinction drawn by the statute bеtween citizen fathers and citizen mothers was neither arbitrary nor invidious, and did not violate the Equal Protection Clause. Justice O‘Connor, joined by Justice Kennedy, concurred in the judgment, on the ground that because the sex difference was in treatment of fathers and mothers, not male and female children, the child did not have standing to raise the father‘s Equal Protection claim. Justice Scalia, joined by Justice Thomas, concurring in the judgment, said that the Court could not reach the Equal Protection issue, because it lacked power tо grant citizenship to an alien in any event, and could do nothing but strike the whole law and deny relief if it found the distinction to be unconstitutional. Justices Ginsburg, Souter and Breyer dissented. That amounts to six justices agreeing that the child raising the challenge must lose. It leaves no room for us to hold, as the majority does today, that the child wins.
The majority‘s theory today is that because Ahumada-Aguilar‘s father is dead, Ahumada-Aguilar has standing to assert his father‘s claim that he is being discriminated against because of his sex. Even if that distinction made a difference it would be wеak in this case. When Ahumada-Aguilar‘s deportation hearing was held, his father was still alive. So even the thread today‘s majority tugs, that Justice O‘Connor said in Miller that the child “has not demonstrated a substantial hindrance to her father‘s ability to assert his own rights,”12 does not distinguish the cases. And it is only a thread. The Supreme Court has not held that if the parent is dead, then the child can assert the parent‘s right not to be discriminated against on account of sex.
I doubt that there can be standing for purposes of
The law established by Miller is that a child of an alien mother and citizen father is not entitled to constitutional relief from
Wauchope,14 even if it had any force sufficient to overcome a Supreme Court decision and a subsequent Ninth Circuit decision interpreting the Supreme Court decisiоn (of course it does not, and must be treated as overruled to the extent that it may be inconsistent with Miller), would be distinguishable. It says that children can assert their dead mothers’ constitutional claims where “their interests coincide with those of their mothers and are equally as intense.”15 How do we know that Ahumada-Aguilar‘s father had the same interest as Ahumada-Aguilar, held with equal intensity, that Ahumada-Aguilar should be a United States citizen? The only fact in the record bearing on the father‘s interest was that he sent the mother packing. His financial interest was better served by not supporting his son than by supporting him. There is no particular reason to think that, were the father alive now (he was when Ahumada-Aguilar‘s deportation hearing was held, and did nothing about it) he would say, “I intensely want my long lost son to be a United States citizen.”
The majority holds that the statute Congress passed is unconstitutional because it falls into the class of laws that “rely on outdated stereotypes.” According to the majority, the statute “relies on the gener-
There is no particular barrier to the father‘s Equal Protection claim being raised, if some father wants to raise it. Some noncustodial fathers of children born out of wedlock do not care to pay child support if it can be avoided. A fаther might want his illegitimate child to have United States citizenship, yet not want to pay child support as required by the stat-
As two justices said in Miller, Congress had a rational purpose for the law. And as two more said, it would not matter if they did not have a rational purpose, because courts cannot confer citizenship, whether the statute not conferring it is constitutional or not. And as two more said, it would not matter if Congress lacked a rational purpose and courts could confer citizenship, because the child lacks standing to assert that the father was discriminated against by sex. And as we held in Viramontes-Alvarado, the Supreme Court has held in Miller that the child loses this claim.