Juan Jose MARTINEZ-MADERA, Petitioner, v. Eric HOLDER, Jr., Attorney General, Respondent, 559 F.3d 937

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 his appeal from a final order of deportation.

Petitioner contends he is a United States citizen by virtue of his stepfather’s United States citizenship and therefore is not deportable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. We have jurisdiction under 8 U.S.C. § 1252(b)(5)(A), and must determine whether INA § 301(g), 8 U.S.C. § 1401(

g) requires at least one of a person’s parents to be married to a U.S. citizen at the time of the petitioner’s birth. We hold that it does, and so deny the petition. 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 (“Ma-dera”) 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 INA § 237(a)(2)(A)(iii). After a merits hearing, the Immigration Judge found that Petitioner was not a U.S. citizen and that the government had proven by clear and convincing evidence that he was deportable as an aggravated felon.

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 INA § 237(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(U). We agree.

Ill 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, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (citing United States v.

Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (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, one of the petitioner’s biological parents was married to a U.S. citizen at the time of the petitioner’s birth. See Scales, 232 F.3d at 1161-62 (biological mother married to citizen stepfather at time of petitioner’s birth); Solis-Espinoza, 401 F.3d at 1091 (biological father married to citizen stepmother at time of petitioner’s birth).

We have not yet addressed the scenario where neither of the petitioner’s parents were citizens at the time of his birth, and, as here, the petitioner claims to have derived citizenship under § 1401 when, subsequent to the petitioner’s birth, his or her biological non-citizen parent simply married a U.S. citizen. 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 § [1401].” Id. at 558-559, & n. 22 (quoting Crider v. Ashcroft, 74 Fed.Appx. 729-30 (9th Cir.2003)) (unpublished) (citing I.N.S. v. Pangilinan, 486 U.S. 875, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988)). Petitioner relies on California’s legitimation statute, Cal.

Civ.Code § 230 (1872) (since repealed by Stats. 1975, c. 1244, p. 3196, § 8), to support his argument, claiming that under Solis-Espinoza, “he, as a legitimate son, was not ‘born out of wedlock,’ ” and that because he was not “born out of wedlock,” Scales and Solis-Espinoza mandate that he deserves citizenship from his stepfather, Gonzales. We find this argument unconvincing, for two reasons. First, former Cal. Civ.Code § 230 applies only to fathers legitimating their illegitimate biological children. The statute does not apply to stepfathers informally adopting stepchildren. How do we know this?

Out of the mouth of the California Supreme Court itself. In Blythe v. Ayres, 96 Cal. 532, 31 P. 915 (1892), that court held that former Cal. Civ.Code § 230 was a legitimization statute relating to persons “where the blood relation exists.” Id. at 916. See also In re Lund’s Estate, 26 Cal.2d 472, 159 P.2d 643, 654 (1945) (“[T]here is a natural and basic difference between the adoption of blood strangers and the adoption by legitimation of a natural child.” (citing Blythe, 96 Cal. 532, 31 P. 915)).

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 § 1409, that path to citizenship would require a blood relationship between Petitioner and Gonzales, which does not exist.

As we said in Scales, “Moreover, § 1409 clearly was enacted ‘at least in part, to ensure that a person born out of wedlock who claims citizenship by birth actually shares a blood relationship with an American citizen.’ ” 232 F.3d at 1164 (quoting Miller, 523 U.S. at 435, 118 S.Ct. 1428) (emphasis added). See also Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) (describing § 1409 as a statute requiring a blood relationship, either by birth or by legitimation). Furthermore, the Board’s determination to this effect is entitled to Chevron deference. Chevron U.S.A. Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 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 § 1401’s requirement that one be born in wedlock to a U.S. citizen to derive citizenship from that parent.

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 § 1401. And, because there is no blood relation between Petitioner and Gonzalez, his citizen stepfather, he cannot meet his burden to prove citizenship under § 1409. See Scales, 232 F.3d at 1164; Solis-Espinoza, 401 F.3d at 1093. Finally, because it is undisputed that he was convicted of attempted murder, we conclude that Petitioner is removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(U).

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 instead serious antisocial conduct that led him to prison. Petition DENIED. . The text of 8 U.S.C. §§ 1401 and 1409 was not amended in any relevant way between 1952 and 1986.

Thus, we interpreted the same version of these sections in Scales, where the petitioner was born in 1977, and in Solis-Espinoza, where the petitioner was born in 1967. Compare 232 F.3d at 1161 and 401 F.3d at

Section 1401(a)(7), Nationals and Citizens of the United States at birth, provides in relevant part as follows: (

a) The following shall be nationals and citizens of the United States at birth: ... [paragraphs (1) through (6) ]

(7) A person born outside the geographical limits of the United States ... of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States ... for a period or periods totaling not less than ten years,....

Section 1409 provides in relevant part: Children bom out of wedlock (

a) The provisions of paragraph (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 bom 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 year— (

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. 8U.S.C. § 1409(a).