Joseph Romero-Mendoza v. Eric H. Holder Jr.

Filing

FILED OPINION (RAYMOND C. FISHER, JOHNNIE B. RAWLINSON and ROBERT J. TIMLIN) DENIED. Judge: RCF , Judge: JBR Authoring, Judge: RJT . FILED AND ENTERED JUDGMENT. [8004582]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH HAARON ROMERO-MENDOZA,
AKA Joe Romero, AKA Joseph
Romero, AKA Joseph A. Romero,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 08-74674
Agency No.
A044-284-374
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 30, 2011—San Francisco, California
Filed December 19, 2011
Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and Robert J. Timlin,
Senior District Judge.*
Opinion by Judge Rawlinson

*The Honorable Robert J. Timlin, Senior District Judge for the United
States District Court, Central District of California, sitting by designation.

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COUNSEL
Cecil A. Lynn III, Ryley, Carlock & Applewhite, Phoenix,
Arizona, for petitioner Joseph Haaron Romero-Mendoza.
Claire L. Workman (argued), Luis E. Perez, Office of Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, Washington D.C., for respondent Eric Holder
Jr., Attorney General of the United States.

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OPINION
RAWLINSON, Circuit Judge:
Joseph Haaron Romero-Mendoza (Romero) petitions this
court for review of the decision of the Board of Immigration
Appeals (BIA) dismissing his appeal. The BIA found that
Romero was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) because he had committed a crime of violence and failed to establish entitlement to relief from removability. Romero contends that he obtained derivative
citizenship from his mother’s naturalization in this country, in
accordance with 8 U.S.C. § 1432. The sole issue on appeal is
whether Romero’s paternity was legitimated under Salvadoran law, which would defeat his claim of derivative citizenship.
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
affirm the BIA’s decision.
I.

Background

Romero entered the United States through Houston, Texas
in October, 1993, and was subsequently admitted as a lawful
permanent resident (LPR). He was born in El Salvador, out of
wedlock, in August, 1979. His birth certificate lists the names
of both parents: Oscar Armando Romero-Rivera (RomeroRivera), father, and Nora Julia Mendoza-Galdamez (Mendoza), mother. Romero’s mother was naturalized in Los
Angeles on February 14, 1997, when Romero was seventeen.
As of August, 22, 1996, Romero’s mother was married to his
father and Mendoza’s naturalization certificate reflected her
married status.
Romero was served with a notice of removability in January, 2008, for conviction of a drug offense, and for conviction
of a crime of violence. Romero conceded that he was not a
United States citizen, that he was born in El Salvador and that

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he was a LPR, but denied the two charges of removal. At a
subsequent hearing, the Immigration Judge (IJ) found that the
Government’s charges of removal had been established by
clear and convincing evidence and that Romero was subject
to removal. Nevertheless, Romero argued that he had obtained
derivative citizenship through his mother’s 1997 naturalization, thereby precluding his removal.
The IJ found that Romero had been legitimated under Salvadoran law by the inclusion of his father’s name on his birth
certificate and, therefore, had not derived citizenship from his
mother. As a result, the IJ found Romero removable to El Salvador due to his conviction of a crime of violence.
The BIA affirmed the IJ’s decision, holding that because
Romero failed to adequately refute his legitimation by operation of Salvadoran law, he had failed to “rebut the presumption of alienage that arises by virtue of his foreign birth . . .”
Thus, Romero was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) because he had committed a crime of violence and failed to establish entitlement to relief from removability.
II.

Standard of Review

We review questions of law in immigration proceedings de
novo. See Singh v. Holder, 638 F.3d 1196, 1202-03 (9th Cir.
2011). “Questions of law include not only pure issues of statutory interpretation, but also application of law to undisputed
facts, sometimes referred to as mixed questions of law and
fact. . . .” Retuta v. Holder, 591 F.3d 1181, 1184 (9th Cir.
2010) (citation and internal quotation marks omitted). We are
not required to give Chevron deference to the BIA’s interpretation of citizenship laws. See Minasyan v. Gonzales, 401
F.3d 1069, 1074 (9th Cir. 2005).
“When the BIA conducts an independent review of the IJ’s
findings we review the BIA’s findings and not those of the IJ.

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To the extent that the BIA incorporates the IJ’s decision as its
own, we review the IJ’s decision.” Gallegos-Vasquez v.
Holder, 636 F.3d 1181, 1184 (9th Cir. 2011) (citations omitted). The court reviews the BIA’s factual findings for substantial evidence. See Lopez-Birrueta v. Holder, 633 F.3d 1211,
1214 (9th Cir. 2011).
III.

Discussion

Romero contends that his father’s paternity was not established by legitimation and that the 1983 Salvadoran constitutional provision, which eliminated any distinctions between
legitimate and illegitimate children, made legitimation under
Salvadoran law a legal impossibility.
[1] “[D]erivative citizenship is determined under the law in
effect at time the critical events giving rise to the eligibility
occurred.” Minasyan, 401 F.3d at 1075 (citation omitted)
(analyzing derivative citizenship claim under the version of
the provision as it existed when the petitioner’s mother was
naturalized). Thus, we look to the version of 8 U.S.C. § 1432
as it existed when Romero’s mother was naturalized. In 1997,
the relevant provisions of § 1432 provided:
(a) A child born outside of the United States of alien
parents, or of an alien parent and a citizen parent
who has subsequently lost citizenship of the United
States, becomes a citizen of the United States upon
fulfillment of the following conditions:
***
(3) The naturalization of the . . . mother if the child
was born out of wedlock and the paternity of the
child has not been established by legitimation; and if
(4) Such naturalization takes place while such child
is under the age of eighteen years; and

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(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at
the time of the naturalization of the . . . parent naturalized under clause . . . (3) of this subsection, or
thereafter begins to reside permanently in the United
States while under the age of eighteen years.
8 U.S.C. § 1432 (1997) (repealed 2000).
Legitimation may be established under either the law of the
child’s residence or the father’s residence. See 8 U.S.C.
§ 1101(c)(1). Here, legitimation may be established under the
law of El Salvador, where Romero’s father resides, or California, where Romero resides.
[2] Although Romero was born out of wedlock, his parents’ subsequent marriage prior to his mother’s naturalization
established Romero’s paternity by legitimation. In AyalaVillanueva v. Holder, 572 F.3d 736 (9th Cir. 2009), we considered a Salvadoran petitioner’s claim of derivative citizenship. The petitioner was born out of wedlock, but his mother
married his putative father prior to the mother’s naturalization. See id. at 738-39. We observed that the marriage of petitioner’s parents legitimated petitioner and precluded a claim
of derivative citizenship. See id. at 739. Although AyalaVillanueva did not specify which jurisdiction’s law it applied,
it can be easily inferred that the case applied Salvadoran law
because it did not mention any state’s law of legitimation. See
Ayala-Villanueva, 572 F.3d at 738-39. In any event, Romero
has made no effort to distinguish Ayala-Villanueva.
Despite our holding in Ayala-Villanueva, Romero asserts
that because he was not legitimated under Salvadoran law as
it existed at the time of his birth, the change in the Salvadoran
constitution did not change his legitimation status. Prior to
1983, Salvadoran law provided that a child was legitimated by
the act of registering the child’s birth with the office of the
Civil Registry and his or her parents’ subsequent marriage.

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See Matter of Ramirez, 16 I. & N. Dec. 222, 224 (BIA 1977).
However, in 1983, El Salvador amended its constitution to
eliminate any distinctions between children born during a
marriage and those born out of wedlock. See In re Moraga,
23 I. & N. Dec. 195, 198-99 (BIA 2001).
Although Romero conceded that his father’s name appears
on his birth certificate, he contended for the first time during
oral argument that the mere presence of Romero-Rivera’s
name on his birth certificate does not establish that he agreed
to civil registration of Romero’s paternity. To support his
position, Romero referenced the government’s objection during the administrative hearing to the admission of Romero’s
birth certificate. He also argued that anyone could have
included Romero-Rivera’s name on Romero’s birth certificate.
We recognize that the government did object to the admission of Romero’s birth certificate during the administrative
hearing. However, the objection was predicated on the lack of
translation from Spanish to English and the lack of attestation
by an American official. Both issues were resolved and
Romero’s birth certificate was admitted into evidence without
further objection.
[3] In any event, the BIA has definitely ruled that the 1983
amendment to the Salvadoran constitution eliminating legitimacy distinctions served to legitimate any child born out of
wedlock. See Moraga, 23 I. & N. Dec. at 198-99. Although
we owe no deference to the BIA on matters of determining
citizenship status, see Minasyan, 401 F.3d at 1074, and
although In re Moraga was rendered in the context of a visa
petition, see Moraga, 23 I. & N. Dec. at 196, it is nevertheless
persuasive authority because it is an en banc BIA decision
that applied the 1983 Salvadoran law.1 Indeed, the BIA spe1

There is no reasoned basis for analyzing the concept of legitimation
differently when considering the issue of derivative citizenship rather than
visa eligibility. See Matter of Hines, 24 I. & N. Dec. 544, 548 (BIA 2008);
see also Kaur v. Holder, 561 F.3d 957, 961 (9th Cir. 2009) (emphasizing
the importance of consistent application of the immigration laws).

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cifically noted that the changes in Salvadoran law required a
modification of Ramirez. See id. at 199 (modifying Ramirez
to reflect the elimination of distinctions between children born
to married parents and those born out of wedlock who were
not yet 18 years old on December 16, 1983). Thus, the fact
that Romero was born prior to the enactment of the 1983 constitutional amendment and his contention that his father did
not necessarily consent to civil registration of his son’s birth
certificate do not negate Petitioner’s legitimation under Salvadoran law.
[4] Romero posits that legitimation is a legal impossibility
in countries that have eliminated legal distinctions between
children born to married parents and those born out of wedlock. He relies on Gosira v. Loy, 357 F.Supp.2d 453, 460 n.
11 (D. Conn. 2005), reconsidered on other grounds, Gosira
v. Chertoff, 364 F.Supp.2d 230 (D. Conn. 2005), and on Matter of Rowe, 23 I. & N. Dec. 962 (BIA 2006). Gosira and
Rowe both involved a petitioner from Guyana and an analysis
under Guyanese law. See Gosira, 257 F. Supp.2d at 455, 460;
Rowe, 23 I. & N. Dec. at 962-63. However, Guyanese law is
not analogous to Salvadoran law because it retained distinctions between children born to married parents and those born
out of wedlock. See Gosira, 257 F.Supp.2d at 461-62.2 Thus,
the changes in Guyanese law did not legitimate children born
out of wedlock. See id. at 464. Rowe agreed with Gosira’s
reasoning and held that “the conclusion that all children,
whether or not legitimate, are to be accorded equal treatment
for all purposes” is not supported by Guyanese law. See 23 I.
& N. Dec. at 966-67. In contrast, the Board in Moraga “conclude[d] that there was a change in Salvadoran law in 1983
which served to place children born out of wedlock in the
2

The distinction in Guyanese law between children born to married parents and children born out of wedlock is demonstrated by the existence of
an explicit method of legitimation: “a child born out of wedlock could
only be legitimated by the subsequent marriage of his parents. . . .”
Gosira, 357 F. Supp.2d at 461-62 (citation omitted).

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same legal position as children born in wedlock in all
respects. . . .” Moraga, 23 I. & N. Dec. at 198 (citation and
footnote reference omitted). When 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.
See id. at 199.
Romero contends that his interpretation of § 1432 serves
the legislative purpose of the Immigration and Nationality
Act, namely reuniting and keeping United States families
intact. In the context of this argument, Romero cites Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003) for
the proposition that “the conceivable purpose of this provision
was to ensure that parental rights are not interfered with when
one parent naturalizes.” However, Romero mischaracterizes
this passage in Barthelemy, which explains § 1432’s intended
protection of an alien father, not a naturalized mother. “If
United States citizenship were conferred to a child where one
parent naturalized, but the other parent remained an alien, the
alien’s parental rights could be effectively extinguished. . . .
Thus, § [1432] prevents the naturalizing parent from usurping
the parental rights of the alien parent.” Barthelemy, 329 F.3d
at 1066 (citations omitted). One does not have to imagine a
fantastic hypothetical to consider the utility of this purpose.
Suppose, as happened in this case, that Romero-Rivera does
not attain citizenship in this country but marries Romero’s
mother, which legitimates his relationship with his son. If
Romero’s parents subsequently divorce and Romero’s interpretation of § 1432 is sustained, Romero-Rivera’s parental
rights would be severed as a matter of law due to Romero’s
deemed out-of-wedlock status. Contrary to Romero’s assertion, the purpose of § 1432 is better served by the interpretation of the statute articulated in Ayala-Villanueva, which
maintains the father’s parental rights.
IV.

Conclusion

[5] The BIA committed no error when it dismissed
Romero’s appeal. Romero failed to establish a claim of deriv-

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ative citizenship due to his legitimation under Salvadoran law.
In the absence of derivative citizenship, Romero was subject
to removal due to his commission of a crime of violence.
PETITION DENIED.