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Mexican Law Determines Man's U.S. Citizenship

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By Brett Snider, Esq. on November 18, 2013 2:55 PM

A man who long battled to have his citizenship recognized has finally won in the Fifth Circuit, with the court finding citizenship through his father under Mexican law.

In Saldana Iracheta v. Holder, the Fifth Circuit was called upon to review an order for reinstating an order for removal, one that had been reinstated many times as Saldana had returned over and over to the U.S. from Mexico. However, the Court took the opportunity to review Saldana's claim of U.S. citizenship and lo and behold, found he was a citizen after all!

How did Mexican law convince the Fifth Circuit to come to this conclusion?

Standing to Hear Citizenship Argument

Even though this was a review to reinstate Saldana's deportation order, the Fifth Circuit found that under federal law (See 8 USC 1252(b)(5)), it maintained jurisdiction over claims of nationality. The court also holds jurisdiction over reviews of petitions for reinstatement of removal orders, and since the government cannot deport someone who has U.S. citizenship, the matter of Saldano's citizenship falls into the Fifth Circuit's hands.

Since there is no genuine issue of fact, only law, the Fifth Circuit is authorized to review Saldano's nationality claim de novo, based on the record at hand.

In Saldano's case, he claims that he has American citizenship through his father, who he claims resided in the U.S. and acquired citizenship prior to his birth. The government also conceded at oral argument that Saldano's father had resided in the U.S. for at least 10 years prior to Saldano's birth.

Under the laws in effect at the time of Saldano's birth -- 1964 -- he would need only prove that under the laws controlling in his Mexican birthplace, that he was "legitimated" before the age of 21. This was crucial since Saldano was born out of wedlock.

"Legitimate" vs. "Acknowledged"

The Fifth Circuit is also strangely empowered to interpret Mexican laws regarding "legitimatization" at the time of Saldano's birth. Probably better the Fifth than the Department of Homeland Security (DHS), since the latter has been applying a "fictional" Mexican constitutional amendment to their decisions for decades.

Under the law Tamaulipa -- the Mexican state of Saldano's birth -- children born out of wedlock could be "legitimized" by their parents marrying or "acknowledged" by their parents signing their names on a birth certificate. The Fifth Circuit found the distinction to be mostly semantic -- although definitely culturally salient -- and agreed with the Second Circuit that labels aren't what's important, the substantive rights are.

Since Saldano's father acknowledged him by signing his birth certificate, he received all the rights of inheritance, support, and surname that a "legitimate" child would have. As Saldano was substantively in the same place as a legitimated child, the Fifth Circuit felt that Saldano was "legitimized" for purposes of U.S. and Mexican law.

And thus, Saldano is a citizen of the U.S., and not subject to deportation.

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