Solis-Espinoza v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDUARDO SOLIS-ESPINOZA, 

Petitioner, No. 03-70625

v.

 Agency No.

A35-620-773

ALBERTO GONZALES, Attorney

General,* OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 4, 2004—Pasadena, California

Filed March 23, 2005

Before: Stephen Reinhardt, John T. Noonan, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as

Attorney General. See Fed. R. App. P. 43(c)(2).

3567

SOLIS-ESPINOZA v. GONZALES 3569

COUNSEL

Thomas A. Lappin, Aguirre & Cotman A.P.C., San Diego,

California, for the petitioner.

Joan E. Smiley, Office of Immigration Litigation, U.S.

Department of Justice, Washington, D.C., for the respondent.

OPINION

CLIFTON, Circuit Judge:

Eduardo Solis-Espinoza petitions for review of a decision

of the Board of Immigration Appeals (“BIA”) affirming with-

3570 SOLIS-ESPINOZA v. GONZALES

out opinion a final order of removal to Mexico. Petitioner

contends that he is not removable because he is a United

States citizen.

Though born in Mexico, Solis-Espinoza claims citizenship

by virtue of the U.S. citizenship of the woman he knew as his

mother. That woman, who was married to petitioner’s biologi-

cal father at the time of petitioner’s birth, acknowledged peti-

tioner from his infancy as a member of her family and raised

him as his mother, though he did not in fact have a biological

connection with that woman. In Scales v. INS, 232 F.3d 1159,

1166 (9th Cir. 2000), we previously held that a blood relation-

ship between a child and a U.S. citizen was not required to

establish citizenship under 8 U.S.C. § 1401(g), if the child in

question was not born out of wedlock. The primary issue

posed in this case is whether Solis-Espinoza was “born out of

wedlock,” such that the blood relationship requirement set

forth in 8 U.S.C. § 1409 applies to him and bars his claim to

citizenship. We conclude that he was not illegitimate or born

out of wedlock. He thus qualified for citizenship under the

applicable statute, and as a citizen, is not subject to removal.

We grant the petition.

I. BACKGROUND

Solis-Espinoza was born in Tijuana, Mexico in 1967. He

was raised in the United States by his biological father,

Refugio Solis, a Mexican citizen and lawful permanent resi-

dent of the United States, and his father’s wife, Stella Cruz-

Dominguez, a natural-born United States citizen. Solis and

Cruz-Dominguez were married at the time of Solis-

Espinoza’s birth. Solis-Espinoza’s biological mother was

Maria Luisa Cardoza, a Mexican citizen, who abandoned him.

Cruz-Dominguez accepted the infant as her own child, and the

couple raised him to adulthood as part of their family. Indeed,

Cruz-Dominguez is listed as Solis-Espinoza’s mother on his

birth certificate, although petitioner concedes that she is not

his biological mother.

SOLIS-ESPINOZA v. GONZALES 3571

In 2001, when he was 33 years old, Solis-Espinoza was

convicted in California state court of a felony, possession of

methamphetamine for sale. The Immigration and Naturaliza-

tion Service then charged Solis-Espinoza as removable from

the United States as an alien convicted of an aggravated fel-

ony, under 8 U.S.C. § 1227(a)(2)(A)(iii).

The Immigration Judge (“IJ”) originally determined that

Solis-Espinoza had acquired United States citizenship through

his connection to Cruz-Dominguez and thus was not subject

to removal. Relying on 8 U.S.C. § 1401(g) and our decision

in Scales, the IJ reasoned that the term “legitimate” simply

required that the person be “born during the course of a mar-

riage to a couple, even where one of the couple was not the

biological parent.” Thus the IJ concluded that Solis-Espinoza

had acquired derivative citizenship at birth because a blood

relationship was not necessary to legitimate a child born to a

couple during the course of marriage.

The INS appealed the IJ’s decision to the BIA, and the BIA

reversed, in a decision entered in 2002. The BIA determined

that Solis-Espinoza “was born out of wedlock,” because his

biological father was not married to his biological mother at

the time of his birth. That meant, according to the BIA, that

Solis-Espinoza was subject to 8 U.S.C. § 1409, which “re-

quires that a person born out of wedlock who claims citizen-

ship by birth actually shares a blood relationship with an

American citizen. See Miller v. Albright, 523 U.S. 420, 435

(1998); see also Scales v. INS, 232 F.3d 1159, 1166 (9th Cir.

2000) (an illegitimate child must establish a blood relation-

ship with a citizen parent to establish citizenship).” Since nei-

ther of Solis-Espinoza’s biological parents were United States

citizens, he did not share a blood relationship with a U.S. citi-

zen and did not, according to the BIA, qualify for citizenship.

On remand, the IJ ordered Solis-Espinoza removed to Mex-

ico in accordance with the BIA’s instructions. The BIA subse-

3572 SOLIS-ESPINOZA v. GONZALES

quently affirmed that order of removal, without opinion, in

2003. Solis-Espinoza seeks review of that order.

II. DISCUSSION

We review legal questions, including claims of citizenship,

de novo. Scales, 232 F.3d at 1162. Factual determinations are

reviewed under the substantial evidence standard and are

upheld “unless the evidence compels a contrary conclusion.”

Id. (quoting Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.

1999)). As the BIA summarily affirmed the second decision

of the IJ, we review the decision as if it were that of the BIA.

See Al-Harbi v. INS, 242 F.3d 882, 887-88 (9th Cir. 2001).

[1] “ ‘The applicable law for transmitting citizenship to a

child born abroad when one parent is a U.S. citizen is the stat-

ute that was in effect at the time of the child’s birth.’ ” Scales,

232 F.3d at 1162-63 (quoting United States v. Viramontes-

Alvarado, 149 F.3d 912, 915 (9th Cir.), cert. denied, 525 U.S.

976, (1998)). When Solis-Espinoza was born in 1967, the cat-

egories of persons recognized as nationals and citizens of the

United States at birth, set forth in 8 U.S.C. § 1401, included:

a person born outside 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 per-

son, 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 . . . .

8 U.S.C. § 1401(a)(7) (1964) (redesignated in 1978 as

§ 1401(g)). “Child,” as used in the subchapter concerning

nationality, including § 1401, was defined as follows:

The term “child” means an unmarried person

under twenty-one years of age and includes a child

SOLIS-ESPINOZA v. GONZALES 3573

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 else-

where, 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 legiti-

mation or adoption.

8 U.S.C. § 1101(c)(1) (1964).1 Our decision in Scales con-

cerned the same statutes, since they were in the same form ten

years later, in 1977, when the petitioner in that case was born.

That precedent thus controls our interpretation of these stat-

utes.

Although the first decision by the IJ, which favored peti-

tioner, explicitly relied upon this court’s decision in Scales,

the only reference in the BIA’s 2002 opinion to our decision

was the “see also” citation quoted above. A more careful

review of that precedent is in order.

Scales involved a child who was born to a non-citizen

woman who was married at the time of the child’s birth to a

U.S.-citizen man. That man accepted the child and acted as

his father, even though he was not the biological father of the

child. In short, it presented a situation much like the current

case, but with the genders of the parents reversed. In both

cases, neither of the biological parents of the petitioner was

a U.S. citizen, so there was no blood relationship between the

child and a U.S. citizen.

1

The definitions section of the statute referenced the terms “parent,”

“father,” and “mother,” but did not specifically define those terms, except

to note that they include a deceased parent in the case of a posthumous

child. 8 U.S.C. § 1101(c)(2) (1964).

3574 SOLIS-ESPINOZA v. GONZALES

[2] While we observed in Scales that the “blood relation-

ship” requirement in 8 U.S.C. § 1409 applied to an illegiti-

mate child, we held that the requirement applied only to an

illegitimate child and that it did not apply to someone who

was not born “out of wedlock.” 232 F.3d at 1164. The peti-

tioner in that case was not illegitimate, we determined, 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 we concluded that

§ 1409 did not apply to him. We then determined that the

petitioner qualified for citizenship under § 1401, despite the

lack of a blood relationship between the child and the U.S.

citizen parent, since the statute did not require a blood rela-

tionship for citizenship, other than the requirement under

§ 1409 applicable only to a child born out of wedlock.

The BIA concluded that Solis-Espinoza was born out of

wedlock because his father was not married to his birth

mother. No authority was cited to support that conclusion.

[3] The relevant state of domicile for Solis-Espinoza and

his father was California. In 1967, California Civil Code § 2302

provided specifically that a child, such as Solis-Espinoza, who

was acknowledged by the father and accepted into the family

by the father’s wife, was legitimate:

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 legiti-

mate child, thereby adopts it as such; and such child

is thereupon deemed for all purposes legitimate from

the time of its birth.

2

Cal. Civ. Code § 230 was enacted in 1872 and repealed by the enact-

ment of the 1976 Uniform Parentage Act, Cal. Civ. Code §§ 7000-7018.

SOLIS-ESPINOZA v. GONZALES 3575

Id. There appears to be no dispute that petitioner was

acknowledged by Solis and was accepted into and raised as a

member of the Solis family, with the consent of Cruz-

Dominguez. Under the law of California at the relevant time,

therefore, Solis-Espinoza was “for all purposes legitimate”

from the time of his birth. Since he was not “born out of wed-

lock,” under our decision in Scales the blood relationship

requirement of § 1409 does not apply to him and he is entitled

to be recognized as a citizen under § 1401.

That result is logical. In every practical sense, Cruz-

Dominguez was petitioner’s mother and he was her son.

There is no good reason to treat petitioner otherwise. Public

policy supports recognition and maintenance of a family unit.

The Immigration and Nationality Act (“INA”) was intended

to keep families together. It should be construed in favor of

family units and the acceptance of responsibility by family

members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214,

217 (9th Cir. 1980) (discussing the “humane purpose” of the

INA and noting that a “strict interpretation” of the Act,

including an “arbitrary distinction” between legitimate and

illegitimate children, would “detract from . . . the purpose of

the Act which is to prevent continued separation of fami-

lies.”); H.R. Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957

U.S.C.C.A.N. 2016, 2020 (observing that the “legislative his-

tory of the Immigration and Nationality Act clearly indicates

that Congress intended to provide for a liberal treatment of

children and was concerned with the problem of keeping fam-

ilies of United States citizens and immigrants united.”).

III. CONCLUSION

[4] We thus grant the petition. Solis-Espinoza was a legiti-

mate child, not born out of wedlock, and is thus a United

States citizen pursuant to 8 U.S.C. § 1401(g). As such, he is

not removable as an alien.

PETITION GRANTED.