Anderson v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY ANDERSON, a.k.a. Gary 

Sinclair,

Petitioner, No. 07-74042

v.  Agency No.

ERIC H. HOLDER Jr., Attorney A017-088-680

General,

Respondent.



GARY ANDERSON, 

Petitioner,

No. 08-73946

v.

 Agency No.

ERIC H. HOLDER Jr., Attorney A017-088-680

General,

Respondent.



GARY ANDERSON,  No. 10-16491

Petitioner-Appellant,

D.C. No.

v.

 2:09-cv-02519-

ERIC H. HOLDER Jr., Attorney WBS-JFM

General,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of California (No. 10-16491)

William B. Shubb, District Judge, Presiding

2887

2888 ANDERSON v. HOLDER

On Petitions for Review of Orders of the

Board of Immigration Appeals

(Nos. 07-74042, 08-73946)

Argued and Submitted

October 14, 2011—San Francisco, California

Filed March 12, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt

2890 ANDERSON v. HOLDER

COUNSEL

Cynthia J. Larsen, Stacy E. Don (argued), and Stephanie F.

Zook, Orrick, Herrington & Sutcliffe LLP, Sacramento, Cali-

fornia, for the petitioner.

Tony West, Assistant Attorney General; J. Max Weintraub,

Senior Litigation Counsel, Leslie McKay, Assistant Director,

Kirsten L. Daeubler (argued), Trial Attorney, and Jane T.

Scaffner, Trial Attorney, U.S. Department of Justice, Civil

ANDERSON v. HOLDER 2891

Division, Office of Immigration Litigation, Washington, D.C.,

for the respondent.

OPINION

REINHARDT, Circuit Judge:

This case requires us to apply a 1952 statute to circum-

stances far removed from those that the enacting Congress

imagined. Gary Anderson, born in England to an American

serviceman father and an English mother, is a citizen of the

United States if and only if his “paternity . . . [was] estab-

lished while [he was] under the age of twenty-one years by

legitimation.” 8 U.S.C. § 1409(a) (1952) (“Former

§ 1409(a)”). When Congress enacted this law, it believed that

“[a]s a general proposition, legitimation is accomplished by

the marriage of the parents with acknowledgment of paternity

by the putative father.” S. Rep. No. 81-1515, at 692-93

(1950). The law of Arizona—one of the states in which

Anderson resided before the age of twenty-one—lacked any

such requirement, however. Instead, it provided that “[e]very

child is . . . the legitimate child of its natural parents.” 1975

Ariz. Sess. Laws ch. 117, § 2 (codified at Ariz. Rev. Stat. § 8-

601). The question we face is how to reconcile the language

of Former § 1409(a) with a state statutory scheme in which it

makes little sense.

Although Anderson’s biological father had no contact with

him for more than four decades after his birth, there is no

question that he is one of Anderson’s “natural parents.”

Because Anderson was a legitimate son of his natural parents

under Arizona law, and because the identity of his natural

father is and has always been undisputed, he appears to have

met the requirements of Former § 1401(a)(7). We must, how-

ever, address two questions of law before arriving definitively

at this conclusion: first, whether “legitimation” requires an

2892 ANDERSON v. HOLDER

affirmative act, as the district court held, rather than simply

the status of being legitimate; and second, whether Ander-

son’s paternity was “established” under Arizona law. Answer-

ing the first question in the negative and the second in the

affirmative, we hold that Anderson is a citizen of the United

States and remand to the agency to vacate the removal order.

I

On October 1, 1954, Gary Anderson was born in England

to Mavis Sinclair, a citizen of that country, and Henry Gitel-

man, a U.S. citizen serving there as a member of the U.S. Air

Force. Sinclair’s parents refused to permit their daughter to

marry Gitelman, and Gitelman’s name did not appear on

Anderson’s birth certificate. Nor was Gitelman present for

Anderson’s birth, although he subsequently visited the mother

and child in the hospital and paid for the birth expenses. Gitel-

man eventually returned to Massachusetts, where he lived at

least until Anderson’s twenty-first birthday. He had no subse-

quent contact with Anderson until 1999 or 2000, when he

signed an affidavit stating that he was Anderson’s father. He

later testified to that effect in Immigration Court. At no time

has Gitelman ever denied being Anderson’s father.

In 1964, meanwhile, Sinclair married another U.S. citizen

—Ted Anderson. Two years later, Sinclair’s son, Gary,

moved from England to the United States to live with his

mother and her husband in Michigan. A year after that, Ted

Anderson adopted Gary, who became a lawful permanent res-

ident of the United States and took his stepfather’s name.

Gary Anderson resided in Michigan from 1966 until 1971 or

1972 and Minnesota from then until July 1975, three months

before his twenty-first birthday, when he moved to Arizona.

He remained in Arizona through his twenty-first birthday and

beyond.

In 1996, Anderson was convicted by plea in the U.S. Dis-

trict Court for the District of Minnesota of conspiracy to dis-

ANDERSON v. HOLDER 2893

tribute and possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A),

846. In September 2000, the former Immigration and Natural-

ization Service (“INS”) served him with a Notice to Appear

(“NTA”) on the basis of the conviction, charging him with

removability under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien

convicted of a controlled substance offense, and under 8

U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggra-

vated felony offense of drug trafficking. In removal proceed-

ings, Anderson admitted the fact of his conviction. On

January 11, 2001, however, an Immigration Judge (“IJ”) ter-

minated the proceedings, finding that Anderson had acquired

U.S. citizenship through his natural father, Gitelman. The IJ

did not address whether Anderson would be removable if he

were not a citizen.

The INS appealed, and on June 22, 2001, the Board of

Immigration Appeals (“BIA”) reversed. Rather than remand-

ing for the IJ to address whether Anderson was removable,

the BIA simply found that he was and ordered that he be

removed to England. Although Anderson asserts that he

believed that his then-counsel had filed a petition for review,

none was filed until October 16, 2007. This petition for

review, No. 07-74042, is the first of those consolidated here.

In the meantime, on October 19, 2001, Anderson filed a

petition for a writ of habeas corpus in the U.S. District Court

for the Eastern District of California. On March 11, 2003, the

district court dismissed the petition without prejudice, holding

that it lacked jurisdiction because Anderson had failed to peti-

tion for review of the BIA’s decision and that the petition

could not be transferred to this court because it was not filed

until after the deadline for a petition for review. Anderson did

not appeal the district court’s denial of his habeas petition.

On June 26, 2008, Anderson filed a motion to reopen with

the BIA. On August 14, 2008, the BIA denied the motion to

reopen and declined to exercise its power to reopen the pro-

2894 ANDERSON v. HOLDER

ceedings sua sponte. Anderson’s timely petition for review of

this decision, No. 08-73946, is the second of those consoli-

dated here.

After this court consolidated the two petitions, the govern-

ment moved to transfer No. 08-73946 to the U.S. District

Court for the Eastern District of California under 8 U.S.C.

§ 1252(b)(5)(B), for a determination of genuine issues of

material fact regarding Anderson’s citizenship claim. On

August 17, 2009, a motions panel granted the motion—

severing the petitions, holding both in abeyance, and transfer-

ring No. 08-73946 to the district court. On April 27, 2010, the

district court held that Anderson had failed to meet his burden

of showing that he was a U.S. citizen. Anderson v. Holder,

No. CIV. 2:09-2519 WBS JFM, 2010 WL 1734979 (E.D. Cal.

Apr. 27, 2010).

Anderson filed a timely appeal, docketed as No. 10-16491,

and we consolidated it with the two petitions for review. The

separate appeal was unnecessary, however, because we never

relinquished jurisdiction over No. 08-73946 when we trans-

ferred it for a limited purpose to the district court. See Demir-

chyan v. Holder, 641 F.3d 1141, 1143 (9th Cir. 2011) (“[W]e

see no meaningful distinction between transfer under 8 U.S.C.

§ 1252(b)(5)(B) and limited remand.”). In fact, it is doubtful

that the district court’s findings of fact and conclusions of law

were separately appealable at all. Cf. Campbell v. Blodgett,

998 F.2d 763 (9th Cir. 1993) (en banc) (holding that findings

and conclusions on limited remand are not separately appeal-

able). We therefore dismiss as moot the appeal in No. 10-

16491, treating it as merged with the petition for review in

No. 08-73946.1

1

During briefing, Anderson submitted two motions for judicial notice.

The first requests that we take notice of excerpts from a Senate Report.

Legislative history is properly a subject of judicial notice. See Chaker v.

Crogan, 428 F.3d 1215, 1223 n.8 (9th Cir. 2005). The second requests that

we take notice of U.S. Citizenship and Immigration Services Interpretation

ANDERSON v. HOLDER 2895

II

We begin by determining whether we have jurisdiction to

decide the petitions for review. Andersen v. United States, 298

F.3d 804, 807 n.2 (9th Cir. 2002).

First, we conclude that we lack jurisdiction over the peti-

tion in No. 07-74042, because Anderson filed it more than six

years after the statutory deadline. The thirty-day time limit for

filing a petition for review, under 8 U.S.C. § 1252(b)(1), “is

mandatory and jurisdictional, and cannot be tolled.” Singh v.

INS, 315 F.3d 1186, 1188 (9th Cir. 2003). We therefore dis-

miss that petition for lack of jurisdiction.

[1] Second, we observe a potential jurisdictional problem

with respect to the remaining petition for review: the BIA’s

original decision in this case was ultra vires. Because the IJ

terminated proceedings after finding that Anderson had pres-

ented sufficient evidence of his citizenship to prevent the INS

from establishing alienage, the IJ never actually found that

Anderson was removable. On appeal to the BIA, the Board,

after reversing the IJ’s determination that Anderson was a cit-

izen, failed to remand for the IJ to determine his removability;

it simply entered a finding of removability on its own. Under

the immigration statute, however, “only an IJ (or another

administrative officer designated by the Attorney General, a

provision not applicable here), may issue orders of deporta-

tion. The BIA . . . is restricted to affirming such orders, not

issuing them in the first instance.” Noriega-Lopez v. Ashcroft,

335 F.3d 874, 883 (9th Cir. 2003). Any removal order that the

BIA purports to enter in the first instance is, “ ‘in essence, a

No. 309.1. We “may take judicial notice of ‘records and reports of admin-

istrative bodies.’ ” Mack v. South Bay Beer Distributors, Inc., 798 F.2d

1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed.

Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). Accordingly, we

grant both motions for judicial notice.

2896 ANDERSON v. HOLDER

legal nullity,’ ” id. at 884, and may not lawfully be imple-

mented.2 The question remains, however, whether the removal

order here—even if it is “a legal nullity” as a result of the

agency’s failure to follow the appropriate procedures for

entering it—is nonetheless “a final order of removal” for the

purpose of conferring jurisdiction under 8 U.S.C. § 1252(a).

In two cases, we have stated that removal orders entered by

the BIA in the first instance were not “final orders of remov-

al” for jurisdictional purposes. See Molina-Camacho v. Ash-

croft, 393 F.3d 937, 942 (9th Cir. 2004) (“Because the BIA

chose not to remand to the IJ for the issuance of the order, no

final order of removal exists in this case that would provide

jurisdiction for this court under § 1252.”); Lolong v. Gon-

zales, 484 F.3d 1173, 1176 (9th Cir. 2007) (en banc)

(“Because our jurisdiction is limited to the review of final

orders of removal, 8 U.S.C. § 1252(a), [Noriega-Lopez] held

that, where the BIA issues an order of removal in the first

instance, there is no valid final order of removal and conse-

quently no jurisdiction in this court to review that legal nulli-

ty.”). Because the REAL ID Act of 2005 eliminated habeas

review of removal orders, leaving petitions for review as the

exclusive means to challenge such orders, the absence of any

§ 1252 jurisdiction over ultra vires removal orders threatens

to create a serious constitutional problem. As the en banc

court observed in Lolong, “[t]his limbo—in which the peti-

tioner is subject to a void order of removal but has no judicial

remedy—may raise serious constitutional concerns because

the Suspension Clause ‘unquestionably’ requires ‘some judi-

2

We reject the government’s arguments that the BIA’s removal order

was not ultra vires. The government argues—as did the BIA in denying

the motion to reopen—that Noriega-Lopez, decided two years after the ini-

tial decision by the BIA, had no retroactive effect. This is incorrect.

Noriega-Lopez did not change the law in any way; it explained that “the

present statute specifies in no uncertain terms that it is IJs who are to issue

administrative orders of removal in the first instance.” 335 F.3d at 884

(emphasis added). In other words, the court simply stated what the statute

had always permitted (or forbidden) the BIA to do.

ANDERSON v. HOLDER 2897

cial intervention in deportation cases.’ ” Id. at 1177.3 Ander-

son’s claim of U.S. citizenship raises another constitutional

concern, because the Constitution “mandates that any person

with a non-frivolous claim to American citizenship receive a

judicial evaluation of that claim.” Rivera v. Ashcroft, 394 F.3d

1129, 1136 (9th Cir. 2004), superseded by statute on other

grounds, REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,

§ 106(c) (2005).4 As the Supreme Court has held,

To deport one who so claims to be a citizen obvi-

ously deprives him of liberty . . . . It may result also

in loss of both property and life, or of all that makes

life worth living. Against the danger of such depriva-

tion without the sanction afforded by judicial pro-

ceedings, the Fifth Amendment affords protection in

its guarantee of due process of law.

Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922). To find

that we lack jurisdiction to review Anderson’s constitutional

claim would abrogate our role because this court, not the

agency, is the final arbiter of constitutional matters. See

Gomez-Chavez v. Perryman, 308 F.3d 796, 800 (7th Cir.

2002) (“[T]he agency does not have the ‘final say on constitu-

tional matters’; instead that power rests with the courts.”).

As in Lolong, however, we postpone to another day resolu-

tion of the constitutional problem that would be raised by the

absence of a “final order,” because the removal order before

us is “final” for the purpose of conferring § 1252 jurisdiction.

In neither Molina-Camacho nor Lolong had the agency actu-

3

The filing of a petition for review from the BIA’s denial of a motion

to reopen cannot on its own cure the jurisdictional deficiency, because

“our jurisdiction over a motion to reopen is derivative of our jurisdiction

over the underlying order of removal.” Alcala v. Holder, 563 F.3d 1009,

1014 (9th Cir. 2009).

4

This concern is based in part on “the principle that American citizen-

ship must be intentionally relinquished.” Iasu v. Smith, 511 F.3d 881, 886

(9th Cir. 2007).

2898 ANDERSON v. HOLDER

ally executed the removal order in question. We issued a stay

of removal in both cases. That is not true here: Anderson, a

United States citizen, was removed from the United States

pursuant to the BIA’s ultra vires order in September 2004.

Although the removal order may have been “a legal nullity”

in a technical or abstract sense, its practical and concrete

effect has been to deprive a United States citizen for more

than seven years of his right to reside in this country. The

order has, in other words, been treated as a final order of

removal by the agency officials who executed it, and it has

certainly been experienced as a final order of removal by the

citizen who has been forced from his homeland. It is, in short,

tantamount to a final order. To suggest in such circumstances

that we nonetheless cannot review the removal of a United

States citizen and the bar to his return to this country because

the order that served as the basis for these actions was not a

“final order of removal” would be to wholly disregard the

purpose of the immigration laws and the procedures that they

envision.

To conclude that we lack jurisdiction because the underly-

ing removal order is void as ultra vires would also conflict

with Congress’s express provision for review of nationality

claims in the courts of appeals by petitions for review. See 8

U.S.C. § 1252(b)(5). As we have stated, the plain language of

§ 1252(b)(5) not only permits but requires us to evaluate a

claim to United States nationality upon a petition for review,

even where our jurisdiction would otherwise be limited. See

Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001). An

order of removal issued against a U.S. citizen is always ultra

vires and void, because the agency has no jurisdiction to order

citizens removed: “Jurisdiction in the executive to order

deportation exists only if the person arrested is an alien.” Ng

Fung Ho, 259 U.S. at 284. Nonetheless, § 1252(b)(5) clearly

provides for review of such orders. See Theagene v. Gonzales,

411 F.3d 1107, 1110 n.4 (9th Cir. 2005) (“8 U.S.C.

§ 1252(b)(5) appears, by providing for de novo review of [cit-

izenship], to provide a fail safe against inadvertent or unin-

ANDERSON v. HOLDER 2899

formed execution of a final order of removal against a person

with a claim to United States nationality.”).

[2] We therefore hold that a removal order that has been

executed against a U.S. citizen is “a final order of removal”

within the meaning of § 1252(a). Any hesitance that we might

otherwise have in adopting that interpretation is more than

offset by our obligation to read the statute, where possible, so

as to avoid serious constitutional problems. See INS v. St. Cyr,

533 U.S. 289, 299-300 (2001).

III

Having concluded that we possess jurisdiction to address it,

we now turn to the main question in this appeal: whether

Anderson derived U.S. citizenship through his biological

father, Henry Gitelman.5 We review the question of citizen-

ship de novo. Solis-Espinoza v. Gonzales, 401 F.3d 1090,

1092 (9th Cir. 2005).6

5

Anderson also argues that he is entitled to citizenship by virtue of his

adoption. Under Former § 1407, however, Gary Anderson cannot be enti-

tled to citizenship through Ted Anderson unless Ted had, at the time of

Gary’s birth, been “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.” Gary con-

cedes that he “was born when Ted Anderson was only eighteen years old”;

Ted’s satisfaction of § 1407’s presence requirement is therefore “legally

impossible because he could never under any circumstances have resided

in the United States for five years after his fourteenth birthday but before

[Gary’s] birth.” Pet’r Br. at 30. Anderson contends “that this physical

presence requirement violates equal protection because a mother, unlike

a father, is required to be present in the United States for only one year

prior to the child’s birth.” Id. But we held to the contrary in United States

v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008), and that decision was

affirmed by an equally divided Supreme Court. Flores-Villar v. United

States, 131 S. Ct. 2312 (2011) (mem.). Anderson’s equal protection argu-

ment is therefore foreclosed.

6

That the petition for review here is from the denial of a motion to

reopen makes no difference in our review of Anderson’s citizenship claim.

As we held in Iasu, we can review the merits of a citizenship claim by way

of a petition for review from the denial of a motion to reopen, even where

the motion was “untimely” and denied “as procedurally improper.” 511

F.3d at 892-93.

2900 ANDERSON v. HOLDER

[3] “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.” Runnett

v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990). The citizenship

law in effect at the time of Anderson’s birth in 1954 was the

one enacted by § 301 of the Immigration and Nationality Act

of 1952, Pub. L. No. 82-414, 66 Stat. 163, 236, codified at 8

U.S.C. § 1401(a)(7) (1952). That section (“Former

§ 1401(a)(7)”) conferred U.S. citizenship at birth on any

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: Provided,

That any periods of honorable service in the Armed

Forces of the United States by such citizen parent

may be included in computing the physical presence

requirements of this paragraph.

Under Former § 1409(a), however, Former § 1401(a)(7) cov-

ers “a child born out of wedlock” only “if the paternity of

such child is established while such child is under the age of

twenty-one years by legitimation.” Because Gitelman is

undisputably Anderson’s father, Anderson clearly meets each

of the requirements of Former § 1401(a)(7). The key question,

then, is whether Anderson’s paternity was established by

legitimation before he turned twenty-one.

[4] We look to 8 U.S.C. § 1101(c)(1) (1952) to determine

what law governs the issue of legitimation. This section

defines a child (for our purposes) as “an unmarried person

under twenty-one years of age,” including “a child 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

ANDERSON v. HOLDER 2901

United States or elsewhere.” Id. (emphasis added). We must

therefore determine whether Anderson’s paternity was estab-

lished by legitimation in a state or country in which he or his

father was domiciled before he turned twenty-one. There are

five such jurisdictions: Arizona, England, Massachusetts,

Michigan, and Minnesota. Because Anderson was domiciled

in Arizona before he reached the age of twenty-one, we hold

that he derived citizenship from Gitelman under Arizona law;

therefore, we do not consider the other four jurisdictions.

[5] At the time of Anderson’s residency in Arizona, state

law had since 1921 provided that “every child is the legiti-

mate child of its natural parents.”7 Clearly, then, Arizona law

regarded Anderson as the legitimate child of Henry Gitelman.

The question remains whether Gitelman’s “paternity of”

Anderson was “established . . . by legitimation,” as Former

§ 1401(a)(7) requires. That question may be further divided

into the two that we noted at the outset. First, is there a differ-

ence between “legitimation” and the status of being legiti-

mate? Second, was Anderson’s paternity (even if undisputed)

properly “established” under Arizona law?8

7

The history of the provision is complex. It was enacted in 1921 Ariz.

Sess. Laws. ch. 114, reading in relevant part as follows: “Every child is

hereby declared to be the legitimate child of its natural parents . . . .” In

re Silva’s Estate, 32 Ariz. 573, 575-76 (1927). The provision was codified

at § 273 of the Revised Code of 1928, then recodified at § 27-401 of the

Arizona Code Annotated of 1939, reading: “Every child is the legitimate

child of its natural parents . . . .” See Imperial v. State, 65 Ariz. 150, 152

(1947). In 1956, § 27-401 was recodified as § 14-206. On January 1, 1974,

§ 14-206 was repealed and replaced by §§ 14-2109 and 14-2611. 1983

Ariz. Sess. Laws. ch. 75, § 4. This amendment substantively changed the

law in ways that we will discuss later in the opinion. On June 6, 1975,

however—a month before Anderson arrived in Arizona—the legislature

enacted § 8-601, making it retroactive to December 31, 1973, the last

effective date of the former § 14-206. 1975 Ariz. Sess. Laws ch. 117, § 2.

The new provision, which remains in effect, reads: “Every child is the

legitimate child of its natural parents and is entitled to support and educa-

tion as if born in lawful wedlock.”

8

The government also suggests that Anderson “does not qualify as a

‘child’ within the meaning of 8 U.S.C. § 1101(c)(1) (1952), because that

2902 ANDERSON v. HOLDER

A

We begin with the first question: whether “legitimation”

requires more than the status of being legitimate. Relying

heavily on Flores-Torres v. Holder, 680 F. Supp. 2d 1099

(N.D. Cal. 2009), the district court held that “legitimation”

does differ from “ ‘legitimacy.’ ” Anderson, 2010 WL

1734979, at *7. “ ‘Legitimation,’ ” the court wrote, “denotes

a procedure—an act or occurrence that makes a child born

out-of-wedlock legitimate under the law,” whereas “[a] ‘legit-

imate’ child . . . could be either a child born into wedlock or

a child born out-of-wedlock who has been legitimated or

whom the law deems to be [legitimate].” Id. Citing a 1950

Senate report stating that “ ‘[a]s a general proposition, legiti-

mation is accomplished by the marriage of the parents with

acknowledgment of paternity by the putative father,’ ” the

court concluded that Congress meant “to require the child’s

parents to go through some process to acknowledge paternity

in order to transfer citizenship to their child.” Id. (quoting S.

Rep. No. 81-1515, at 692-93 (1950)). “It would be a strange

result contrary to the intent of Congress,” the court wrote, for

Anderson to be a citizen “simply because he was fortunate

enough to move to Arizona before the age of twenty-one

section “requires not only that a person be legitimated before the age of

twenty-one, but also that the child be ‘in the legal custody of the legitimat-

ing . . . parent or parents at the time of such legitimation . . . .’ ” Gov’t

Br. at 39-40 n.18. As Anderson points out, however, “USCIS has long rec-

ognized that there is an inconsistency between the requirement of Section

1101(c) that a child be legitimated by age sixteen to be considered a

‘child’ and Section 1409(a), which provides that a child be legitimated by

age twenty-one.” Reply Br. at 8. USCIS’s formal view is that “provisions

of the current statute, providing that legitimation occur during minority,

operate independently of the definition of legitimated child in section

101(c) of the current Act, and are satisfied by mere legitimation during

minority notwithstanding that it occurred after age 16 years, or that the

legitimation parent did no[t] then have legal custody of the child.” USCIS

Interpretation 309.1(b)(2)(i) (emphasis added). The provisions of the cur-

rent statute, and the conflict between them, are for the relevant purpose the

same as those in the 1952 statute.

ANDERSON v. HOLDER 2903

without his father taking any affirmative steps to acknowledge

a paternal relationship with him.” Id. at *16-*17.

[6] Neither the district court’s argument nor the govern-

ment’s effort to bolster it is correct as a matter of law. The

central flaw in the district court’s analysis is its failure to

appreciate that states, not the federal government, possess

“the power to define what constitutes [legitimacy or illegiti-

macy], to regulate it, or even to abolish any distinctions

founded upon it.” Lau v. Kiley, 563 F.2d 543, 549 (2d Cir.

1977). It is “[i]ncontestable that each state may formulate its

own public policy in respect to legitimation and can enact

laws to carry out its policy.” Estate of Lund, 26 Cal. 2d 472,

485-86 (1945). If a state defines “legitimation” in a manner

that entails no formal process, as Arizona did, then the federal

courts must apply the state’s definition. Other language in the

1950 Senate Report, moreover, contravenes the district

court’s inference that legitimation requires a formal act: the

report’s reference to the “establishment of legitimation,” S.

Rep. No. 81-1515, at 692, implies that “legitimation” can

refer to the status of being legitimate, not an act that creates

legitimacy.9

9

Even if Flores-Torres were binding, moreover, it does not mean what

the district court read it to mean. The Salvadoran petitioner in that case

was entitled to citizenship if his paternity had not been established by

legitimation when his mother became a U.S. citizen. 680 F. Supp. at 1103.

Salvadoran law “distinguished among (i) ‘legitimate children’ who were

born in wedlock, (ii) ‘natural children’ who were born out of wedlock but

whose paternity was acknowledged by their fathers and (iii) ‘illegitimate

children’ who were born out of wedlock and whose paternity was not

acknowledged by their fathers.” Id. at 1102. Under the law, “an illegiti-

mate or natural child could be legitimated only if his parents entered into

a lawful marriage after his birth.” Id. Legitimation (through marriage),

however, was only one means of establishing paternity. The law “de-

scribed several methods by which the father could acknowledge paternity

of a child born out of wedlock.” One such method, used in the petitioner’s

case, “was for the father to submit to the Salvadoran civil registry the

information from the child’s birth certificate and a signed certification

acknowledging his paternity.” Id. In holding that “[t]he word ‘by’ indi-

2904 ANDERSON v. HOLDER

[7] In multiple cases, federal courts of appeals and the BIA

have held that statutes abolishing the distinction between

legitimate and illegitimate children suffice to meet the

requirement of “legitimation.” In Lau, for example, the Sec-

ond Circuit considered whether a child had been “legitimated”

under Chinese law, for the purpose of a federal statute requir-

ing that “such legitimation take[ ] place before the child

reaches the age of eighteen years,” 8 U.S.C. § 1101(b)(1)

(1970), where the relevant Chinese statute provided that

“[c]hildren born out of wedlock shall enjoy the same rights as

children born in lawful wedlock,” 563 F.2d at 544. The gov-

ernment contended, as it does here, that the statute “require[d]

an act of legitimation under the applicable law, not just a fac-

tual determination that the relationship of father and son

exists.” Id. at 548 (quoting the government’s brief) (emphasis

added). The court rejected that argument, however, holding

that because “Chinese law makes all children ‘legitimate.’ ”

it was unnecessary to “consider . . . whether there is a proce-

dure in China for ‘legitimating’ a child.” Id. at 551. The BIA

subsequently agreed with this holding. Matter of Wong, 16 I.

& N. Dec. 646 (BIA 1978). A few years later, it stated the

holding in more general terms: “When the country where a

beneficiary was born and resides eliminates all legal distinc-

tions between legitimate and illegitimate children, all natural

children are deemed to be the legitimate or legitimated off-

spring of their natural father from the time that country’s laws

are changed.” Matter of Hernandez, 19 I. & N. Dec. 14 (BIA

1983).

Much more recently, the Third Circuit held in Brandao v.

Attorney General of the United States, 654 F.3d 427 (3d Cir.

cates that legitimation must be the means through which paternity was

established,” id. at 1105, Flores-Torres meant that the petitioner’s pater-

nity had to have been established by legitimation, as opposed to the alter-

native mechanism of acknowledgment, for him to fall within the terms of

the statute. Legitimation need not always requires some formal legal act;

the question is whether or not the law of the governing jurisdiction

requires such a formality.

ANDERSON v. HOLDER 2905

2011), that a child’s “paternity” had been “established by

legitimation” for the purposes of 8 U.S.C. § 1432(a) (1994),

under a Cape Verde law providing that “all children are con-

sidered equal” and “enjoy the same rights” no matter whether

their parents are married or unmarried, id. at 429. Applying

the rule that the BIA stated in Hernandez, the court concluded

that the petitioner had been legitimated, because Cape

Verde’s statute rendered every child “legitimated regardless

of whether the natural father takes formal steps to assert pater-

nity.” Id. at 430. Our own court issued a similar holding in

Romero-Mendoza v. Holder, 665 F.3d 1105 (9th Cir. 2011).

Romero-Mendoza applies the BIA’s holding in Matter of

Moraga, 23 I. & N. Dec. 195 (BIA 2001)—which itself relied

on Hernandez and Wong, id. at 199—to hold that “[w]hen

legal distinctions are eliminated between children born to

married parents and those born out of wedlock, the children

born out of wedlock are deemed to be legitimated as of the

date the laws are changed.” 665 F.3d at 1109.

The government attempted to distinguish Brandao at oral

argument, and presumably would distinguish Romero-

Mendoza as well, on the basis that the statute at issue—which

conferred citizenship on a child born outside the United States

to unmarried alien parents, upon “the naturalization of the

mother,” so long as the child’s paternity had “not been estab-

lished by legitimation”—was meant to “provide[ ] the broad-

est protection possible for the alien parent’s rights.” Brandao,

654 F.3d at 429-30. In other words, the government’s position

is that the word “legitimation” should be read broadly when

a broad reading results in the denial of citizenship, and nar-

rowly when a narrow reading results in the denial of citizen-

ship. Compare Gov’t Br. at 41 (dismissing as “unavailing”

Anderson’s argument “that he was legitimated under Arizona

law because Arizona does not distinguish between legitimate

and illegitimate children”) with Brief for Respondent at 14,

Romero-Mendoza v. Holder (No. 08-74674) (citing Lau and

urging deference to Moraga’s holding “that ‘[w]hen a country

where a beneficiary was born and resides eliminates all legal

2906 ANDERSON v. HOLDER

distinctions between children born in wedlock and children

born out of wedlock, all natural children are deemed to be the

legitimate or legitimated offspring of their natural father from

the time that country’s laws are changed’ ”). Not only does

the government’s position fail to explain why an alien par-

ent’s rights are more worthy of statutory protection than the

citizenship interests of someone who spent the vast majority

of his life in the United States; it defies the government’s own

prior assertion that the statute at issue in Brandao, Romero-

Mendoza, and Flores-Torres closely resembles the one at

issue here. See Gov’t Br. at 41-42. The government’s position

is unfair as well as erroneous.

The Congress that enacted the 1952 citizenship statute

might well have been surprised to learn that states would con-

fer legitimacy without the need for formal action, although the

Arizona law in question had been effective since 1921. The

government is likely correct that “the type of action Congress

expected was ‘the marriage of the parents with acknowledg-

ment of paternity by the putative father,’ or a formal ‘adjudi-

cation of a competent court.’ ” Gov’t Br. at 37 (quoting S.

Rep. No. 81-1515, at 692). Indeed, as the Supreme Court

noted in upholding the constitutionality of a 1986 amendment

to the citizenship statute, some degree of formality makes

sense as a policy matter: “the requirement that the father make

a timely written acknowledgment under oath, or that the child

obtain a court adjudication of paternity, produces the rough

equivalent of the documentation that is already available to

evidence the blood relationship between the mother and the

child.” Miller v. Albright, 523 U.S. 420, 436 (1998).

Contrary to the government’s contention at oral argument,

however, neither Miller nor its successor, Nguyen v. INS, 533

U.S. 53 (2001), authorizes us to read into the statute a require-

ment of formal action that the statute simply does not contain.

These cases dealt not with the interpretation of the citizenship

statute but with its constitutionality. They involved a provi-

sion added to the INA in 1986, replacing Former § 1409(a),

ANDERSON v. HOLDER 2907

which enabled a child born abroad to an unmarried U.S. citi-

zen father to qualify for citizenship if, among other require-

ments, “(1) such child is legitimated under the law of the

child’s residence or domicile, or (2) the father acknowledges

paternity of the child in writing under oath, or (3) paternity of

the child is established by adjudication of a competent court.”

Immigration and Nationality Act Amendments of 1986, Pub.

L. No. 99-653, 100 Stat. 3655, § 13(b) (emphasis added).10

Both decisions upheld this requirement against an equal pro-

tection challenge—in Miller, by a deeply fractured set of

opinions with no majority; in Nguyen, by a five-to-four

majority—because it served legitimate governmental inter-

ests. These interests included one that is not at stake here

(“assuring that a biological parent-child relationship exists,”

Nguyen, 533 U.S. at 62), as well as one on which the govern-

ment focused at oral argument:

the determination to ensure that the child and the cit-

izen parent have some demonstrated opportunity or

potential to develop not just a relationship that is rec-

ognized, as a formal matter, by the law, but one that

consists of the real, everyday ties that provide a con-

nection between child and citizen parent and, in turn,

the United States.

Id. at 64-65. The fact that such a consideration might legiti-

mately have motivated Congress to enact requirements of for-

mal action in 1986 hardly helps, however, to resolve the

question of statutory meaning before us: whether the 1952

statute, which on its face contains no requirement of formal

action, should nonetheless be read to contain one. Our resolu-

10

As Justice Stevens explained in Miller, “[t]he purpose of the amend-

ment was to ‘simplify and facilitate determinations of acquisition of citi-

zenship by children born out of wedlock to an American citizen father, by

eliminating the necessity of determining the father’s residence or domicile

and establishing satisfaction of the legitimation provisions of the jurisdic-

tion.’ Hearings, at 150.” Miller, 523 U.S. at 436.

2908 ANDERSON v. HOLDER

tion of that question is guided not by Miller and Nguyen but

by the plain language of the statute and by the multiple deci-

sions, discussed above, that have treated the abolition of a dis-

tinction between legitimate and illegitimate children as

sufficient to establish legitimation.

[8] Even if we would otherwise be inclined to read an

unwritten requirement of formal action into the 1952 statute,

such an interpretation would make no sense at all in the con-

text of Arizona’s statutory scheme, which specifies no formal

mechanism of legitimation whatsoever. The government does

not explain, and we cannot imagine, what formal action

Anderson or his parents could have taken to make him legiti-

mate under Arizona law, even had they wanted to do so.

Twisting the terms of the Arizona legitimacy statute to require

some unspecified formal act not only defies the state legisla-

ture; it imposes a Kafkaesque requirement to undertake a for-

mal process that does not exist. It was likely for these reasons

that another district court properly read the Arizona statute to

render a child “legitimated” by virtue of his birth, recognizing

no distinction between the status of “legitimacy” and that of

having been “legitimated.” See O’Donovan-Conlin v. U.S.

Dep’t of State, 255 F. Supp. 2d 1075, 1082 (N.D. Cal. 2003)

(“Since plaintiff O’Donovan-Coin is undisputedly the son of

Heather O’Donovan and Coin, and because Coin is a resident

of Arizona, O’Donovan-Coin has been legitimated under the

state law of Arizona.”). There is no question that Anderson is

legitimate and thus legitimated under Arizona law.

The government objects that “O’Donovan-Conlin dealt

with the current version of 8 U.S.C. § 1409, which lacks the

requirement that a child’s paternity have been established by

legitimation.” Gov’t Br. at 44-45. This argument, however,

does not undercut Anderson’s legitimacy. It merely raises the

second question before us: whether, even if Anderson was

legitimated under Arizona law, Gitelman’s paternity was

established by legitimation. We turn to that question next.

ANDERSON v. HOLDER 2909

B

It is clear that “Gitelman took no steps to establish his

paternity, by legitimation or otherwise, before petitioner’s

twenty-first birthday.” 2010 WL 1734979, at *8. The only

question is whether Arizona law required the biological father

(or the mother or child) to take some formal “step” in order

for paternity to be established, where the identity of the

child’s biological father was undisputed and the mother had

no need to compel support payments.

Our consideration of this question is made no easier by the

parties’ failure to refer us to the relevant sources of law.

Anderson asserts that Gitelman’s paternity of him “is undis-

puted,” Reply Br. at 2, and that Gitelman publicly acknowl-

edged having fathered Anderson at the time of his birth,

Reply Br. at 6. He makes these assertions, however, without

showing why they support his having established paternity

under Arizona law. The government, meanwhile, argues that

“Gitelman never established paternity” because “[h]is name

was not on Anderson’s birth certificate, he provided no finan-

cial support for Anderson (apart from the stroller and hospital

expenses he paid for immediately after Anderson’s birth), he

never filed a lawsuit to establish his paternity, and he never

lived with Anderson.” Gov’t Br. at 44—but it, too, fails to

explain how those facts relate to the establishment of pater-

nity under Arizona law.

[9] In our view, the question of paternity is ultimately a

simple one: Anderson’s paternity is established by the very

statute that establishes his legitimacy. That statute provides,

as discussed earlier, that “[e]very child is the legitimate child

of its natural parents.” Ariz. Rev. Stat. § 8-601. There is no

dispute that Gitelman is Anderson’s natural father. The statute

therefore provides, literally, that Anderson is Gitelman’s

legitimate child. If there were a dispute as to the identity of

Anderson’s biological father, then the provisions of Arizona

law concerning judicial paternity determinations (which we

2910 ANDERSON v. HOLDER

discuss below) would become relevant. Where the identity of

a child’s natural parents is clear, however, the same statute

that establishes the child’s legitimacy also establishes its par-

entage under state law.

Our interpretation of § 8-601 is bolstered by an analysis of

its history. We noted earlier, supra note 7, that for roughly a

year and a half—between January 1, 1974 and June 6, 1975,

a month before Anderson’s arrival in the state—Arizona law

did not provide that “every child is the legitimate child of its

natural parents.” Instead, the statute in effect during this

period provided in relevant part as follows:

If, for purposes of intestate succession, a relationship

of parent and child must be established . . .

2. In cases not [concerning adoptions], a

person born out of wedlock is a child of the

mother. That person is also a child of the

father, if either

(a) The natural parents participated in

a marriage ceremony before or after the

birth of the child, even though the

attempted marriage is void.

(b) The paternity is established by an

adjudication before the death of the

father or is established thereafter by clear

and convincing proof . . . .

Ariz. Rev. Stat. § 14-2109 (1975) (emphasis added). During

this brief interregnum, Anderson’s paternity would not have

been established by the legitimacy statute alone; it would

have required either the marriage of his parents or a judicial

declaration. Breaking from more than five decades of statu-

tory precedent, § 14-2109 distinguished between the estab-

ANDERSON v. HOLDER 2911

lishment of maternity, which required no formal action, and

the establishment of paternity, which did.

In June 1975, however, the Arizona legislature repudiated

this brief departure from its longstanding rule that “every

child is the legitimate child of its natural parents.” The legis-

lature not only reasserted that longstanding rule but made it

retroactive to the day before § 14-2109 had gone into effect.

1975 Ariz. Sess. Laws ch. 117, § 2.11 The clear purpose and

effect of this change was to restore parity between mothers

and fathers under the legitimation statute—to remove the pro-

visions requiring formal action for the establishment of pater-

nity and reassert the longstanding rule that any child born in

Arizona was the legitimate child of its father as well as its

mother.

One might wonder why, if the statute that legitimated

Anderson served also to establish his paternity, Arizona law

contains other provisions that specifically govern the question

of paternity. The code in effect during Anderson’s residency

in Arizona provided for judicial proceedings to establish

paternity. See Ariz. Rev. Stat. § 12-841 to -851 (1956 & Supp.

1957-79). So did the 1921 law that contained the legitimacy

provision at issue here. In re Silva’s Estate, 32 Ariz. at 576.

Such a formal process, however, was presumably to be used

only when paternity was disputed—where, in other words, the

identity of a child’s natural father was not clear. Absent the

need to determine a disputed question of paternity, so as to

compel a father to comply with his legal obligations, no one

would bother to file a judicial paternity action.

The Arizona Supreme Court agreed with this view in

Silva’s Estate. Referring to the statutory provision for pater-

nity actions, cited above, it wrote:

11

The legislature did not actually repeal this version of § 14-2109 until

1994. See 1994 Ariz. Sess. Laws ch. 290, § 5.

2912 ANDERSON v. HOLDER

We do not intend that it be understood that we think

such procedure is exclusive, and that a child born out

of wedlock cannot be legitimized except by an action

instituted by the mother, or a statement in writing

made by the parents admitting its parentage. It seems

to us that the evident purpose of authorizing the

mother to bring an action to establish the parentage

of her child was to fix the father’s legal obligation

to support and educate the child. This must be so

since section 3 makes such action a cumulative rem-

edy to the action under the bastardy statute, the pur-

pose of which is to compel the father to contribute to

the support of his illegitimate offspring.

Id. at 579 (emphasis added). In other words, the court held

that a child could be “the legitimate child of its natural par-

ents,” even without a formal action to establish who those

parents were, so long as there was no need to compel parental

support. Where the identity of a child’s parents was clear, in

the court’s view, the child’s legitimation could not require the

formality of a judicial action or written acknowledgment.

A related statute in effect at the time of Anderson’s resi-

dency, Ariz. Rev. Stat. § 12-621 (1956 & Supp. 1957-79),

provided that “[w]hen a person desires to establish his . . .

parentage,” he could “file . . . an application setting forth his

reasons for” so desiring, upon which a court could “enter

judgment establishing . . . parentage.” This process resembles

a paternity action except that it is non-adversarial and may be

initiated by the child. It might, then, be more appropriate for

use by a child—such as Anderson—who wanted to establish

his paternity for reasons unrelated to the compulsion of sup-

port.

In a 1975 decision, however, the Arizona Supreme Court

explained why this ex parte process was closely related to a

paternity action and held that it was equally unnecessary

where there was no need to compel support from a child’s

ANDERSON v. HOLDER 2913

biological father. The case involved a child who was entitled

to inherit unless estopped by laches. The defendants argued a)

that the child’s mother’s failure to file a paternity action

estopped the child from alleging paternity in probate, and b)

that the child’s own failure to seek a declaration of her pater-

nity under what became § 12-621 had a similar effect. The

court found “no merit to either contention,” explaining that

Silva’s Estate had “made it clear” that the use of a formal

judicial process for establishing paternity “was not exclusive,

and that the primary purpose of the legislation was to fix the

father’s obligation to support and educate the child.” In re

Cook’s Estate, 63 Ariz. 78, 86-87 (1975) (emphasis added).

“It would be unwarranted,” the court explained,

to hold that the beneficent provisions of Sec. 27-401

[making all children legitimate] could be nullified by

reason of the failure of either the mother or the child

to timely establish parenthood and thereby bastardize

the child whom the legislature had declared to be

legitimate with the right of inheritance as though

born in wedlock.

Id. at 87. The court thus reaffirmed its holding in Silva’s

Estate: that the function of any judicial paternity action,

adversarial or ex parte, is to enforce paternal obligations.

Moreover, it read the paternity provisions of Arizona law as

in pari materia with the provision that all children are legiti-

mate, reasoning that the liberality of the latter ought not be

“nullified” by a formalistic interpretation of the former. Taken

together, Silva’s Estate and Cook’s Estate reject the notion

that Anderson’s paternity could not have been established

without a formal process under Arizona law.

[10] There has never been any question that Gitelman is

Anderson’s natural father. Anderson’s paternity was therefore

established by Arizona’s legitimacy statute, Ariz. Rev. Stat.

§ 8-601, which declared that Anderson was, in the eyes of the

state, “the legitimate child of” Gitelman and his mother.

2914 ANDERSON v. HOLDER

Because the primary purpose of § 8-601 was to establish legit-

imacy, we conclude that Anderson’s paternity was established

by legitimation, as Former § 1409(a) requires in order for him

to have derived citizenship through Gitelman. We therefore

hold that Anderson is a citizen of the United States and that

the agency lacked jurisdiction to remove him from the coun-

try.

IV

[11] Because we conclude that Anderson is a citizen of the

United States, we GRANT the petition for review in No. 08-

73946 and REMAND with instructions for the agency to

vacate the removal order against him. For the reasons dis-

cussed earlier, we DISMISS for lack of jurisdiction the peti-

tion for review in No. 07-74042, and we DISMISS as moot

the appeal in No. 10-16491.