Horace Friend v. US Attorney General, et al

Filing

FILED OPINION (MARSHA S. BERZON, PAUL J. WATFORD and JAMES G. CARR) AFFIRMED. Judge: PJW Authoring, FILED AND ENTERED JUDGMENT. [8609153]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HORACE GOZON FRIEND ,
Plaintiff-Appellant,

No. 10-55906

v.

D.C. No.
8:09-cv-00165JVS-AN

ERIC H. HOLDER, JR., Attorney
General; DEPARTMENT OF
HOMELAND SECURITY ; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
February 13, 2013—Pasadena, California
Filed April 30, 2013
Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and James G. Carr, Senior District Judge.*
Opinion by Judge Watford
*

The Honorable James G. Carr, Senior United States District Judge for
the Northern District of Ohio, sitting by designation.

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SUMMARY**

Immigration
The panel affirmed the district court’s summary judgment
dismissal of Horace Gozon Friend’s action brought under
8 U.S.C. § 1503(a) seeking a declaratory judgment that he is
a United States citizen, although he was born in the
Philippine Islands, because his father was a U.S. citizen.
In Friend v. Reno, 172 F.3d 638 (9th Cir. 1999), this court
held that Friend’s father could not transmit citizenship to him
under Revised Statutes § 1993, the law in effect when he was
born in 1931, because his father never resided in the United
States. In the present case, the panel held that the Nationality
Act of 1940, which liberalized the residency requirement, did
not apply retroactively to Friend.

COUNSEL
Douglas D. Janicik (argued), Steptoe & Johnson LLP,
Phoenix, Arizona, for Plaintiff-Appellant.
Craig A. Defoe (argued), Trial Attorney; Tony West,
Assistant Attorney General; J. Max Weintraub, Senior
Litigation Counsel, United States Department of Justice, Civil
Division, for Defendants-Appellees.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
WATFORD, Circuit Judge:
The plaintiff in this action, Horace Friend, contends that
he is, and has been since birth, a United States citizen. His
long quest to obtain official recognition of that status began
in 1990, when he first applied for a certificate of citizenship.
Mr. Friend claimed to be a citizen under Revised Statutes
§ 1993, the relevant law in effect at the time of his birth in
1931. Section 1993 provided:
All children heretofore born or hereafter born
out of the limits and jurisdiction of the United
States, whose fathers were or may be at the
time of their birth citizens thereof, are
declared to be citizens of the United States;
but the rights of citizenship shall not descend
to children whose fathers never resided in the
United States.
Mr. Friend was born in the Philippine Islands, which were
then a territorial possession of the United States but were
nonetheless deemed “out of the limits and jurisdiction of the
United States” for purposes of § 1993. See Friend v. Reno,
172 F.3d 638, 642 (9th Cir. 1999). Mr. Friend’s father was a
United States citizen at the time of Mr. Friend’s birth, and
had lived his entire life in the Philippines. Mr. Friend’s
mother was a non-citizen national of the United States.
When Mr. Friend first came before this court in 1999, we
rejected his citizenship claim under Revised Statutes § 1993.
Friend, 172 F.3d at 648. We held that although Mr. Friend’s
father was a United States citizen, he could not transmit his

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citizenship to his son under § 1993 because he had never
resided “in the United States,” as the statute required. We
rejected Mr. Friend’s argument that his father’s residence in
the Philippines should qualify as residence in the United
States. Id. at 645.
In so holding, we noted that if Mr. Friend’s claim had
been governed by the Nationality Act of 1940 (the 1940 Act),
he would indeed be a citizen. Friend, 172 F.3d at 643. The
1940 Act superseded § 1993 and, among other things,
liberalized the applicable residency requirement for
transmitting citizenship to children born abroad by allowing
the citizen parent to have resided in either the United States
or one of its outlying possessions prior to the child’s birth.
See Nationality Act of 1940, Pub. L. No. 76-853, § 201(e),
54 Stat. 1137, 1138.1 Because the Philippine Islands were
considered an outlying possession of the United States until
1946, see Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994),
Mr. Friend’s father would have satisfied § 201(e)’s residency
requirement. Friend, 172 F.3d at 643. But we made clear
that “Rev. Stat. § 1993 is the statute that controls the outcome
of this case,” because the applicable law governing
transmittal of citizenship is ordinarily “the statute that was in
effect at the time of the child’s birth.” Id. at 641 (internal
quotation marks omitted).

1

Section 201(e) of the 1940 Act provided: “The following shall be
nationals and citizens of the United States at birth: . . . A person born in
an outlying possession of the United States of parents one of whom is a
citizen of the United States who resided in the United States or one of its
outlying possessions prior to the birth of such person.” Section 201(e)
was repealed in 1952; its current analogue can be found at 8 U.S.C.
§ 1401(e).

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Our ruling did not end the matter. Mr. Friend
subsequently filed a second application for a certificate of
citizenship, this time grounding his claim on the 1940 Act,
notwithstanding our earlier conclusion that Revised Statutes
§ 1993 was controlling. When we decided Mr. Friend’s first
appeal, he believed his parents had been married at the time
of his birth. Mr. Friend now claims that newly discovered
evidence, not available earlier, shows that in fact his parents
did not marry until 1958, when he was 27 years old. Mr.
Friend argues that, as a child born out of wedlock, he is
covered by a special provision of the 1940 Act that made
§ 201(e) applicable retroactively to children born out of
wedlock before the Act’s effective date. See Nationality Act
of 1940 § 205, 54 Stat. at 1139–40. After the United States
Citizenship and Immigration Services denied his application
and dismissed his administrative appeal, Mr. Friend filed this
action under 8 U.S.C. § 1503(a) seeking a declaratory
judgment that he is a citizen of the United States. The district
court ruled against Mr. Friend on cross-motions for summary
judgment, granting the government’s motion and denying his.
Like the district court, we find it unnecessary to resolve
whether Mr. Friend was in fact born out of wedlock. For
purposes of this decision we will assume that he was. Even
with that factual hurdle cleared, however, two separate
obstacles bar Mr. Friend’s citizenship claim under the 1940
Act.
The first obstacle relates to the retroactivity issue. The
1940 Act was obviously not the law in effect at the time of
Mr. Friend’s birth in 1931, so he must establish that the Act
applies retroactively to individuals born before its effective
date. Congress passed the 1940 Act in view of the
background rule that “a statute cannot be construed to operate

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retrospectively unless the legislative intention to that effect
unequivocally appears.” Miller v. United States, 294 U.S.
435, 439 (1935).
We do not think the provisions of the 1940 Act on which
Mr. Friend relies reflect a legislative intention that they
should apply retroactively. Section 201(e) of the Act—the
provision that liberalized the residency requirement in a
manner favorable to Mr. Friend—does not itself say anything
about applying retroactively to individuals born before the
1940 Act’s effective date. See supra note 1. But Mr. Friend
contends that § 205—the provision applicable to children
born out of wedlock, which incorporates § 201(e)—contains
language making § 205 retroactive. We quote below the first
of § 205’s two paragraphs (the only one that could potentially
apply here), and italicize the language on which Mr. Friend
relies:
The provisions of section 201, subsections (c),
(d), (e), and (g), and section 204, subsections
(a) and (b), hereof apply, as of the date of
birth, to a child born out of wedlock, provided
the paternity is established during minority,
by legitimation, or adjudication of a
competent court.
Nationality Act of 1940 § 205, 54 Stat. at 1139 (emphasis
added).
We do not believe the italicized phrase can be construed
as extending the statute’s reach retroactively. That phrase
instead describes the point at which one’s citizenship status,
if successfully established, takes effect. The statute is
retroactive in that sense—it confers citizenship as of the date

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of the child’s birth, even if the child’s paternity is not
established until years later. See Tuan Anh Nguyen v. INS,
533 U.S. 53, 72 (2001) (interpreting successor statute,
8 U.S.C. § 1409(a)); Miller v. Albright, 523 U.S. 420, 431
(1998) (opinion of Stevens, J.) (same). The italicized phrase
does not speak to whether the statute applies to individuals
born before the 1940 Act’s effective date.
If there were any doubt on that score, it is dispelled by the
language of the second paragraph of § 205, which Congress
did make applicable to individuals born before the Act’s
effective date. In doing so, however, Congress used language
(italicized below) not found in the first paragraph:
In the absence of such legitimation or
adjudication, the child, whether born before
or after the effective date of this Act, if the
mother had the nationality of the United
States at the time of the child’s birth, and had
previously resided in the United States or one
of its outlying possessions, shall be held to
have acquired at birth her nationality status.
Nationality Act of 1940 § 205, 54 Stat. at 1140 (emphasis
added). Had Congress intended to make the first paragraph
of § 205 retroactive, it would have included the same
language in that paragraph as well. See Russello v. United
States, 464 U.S. 16, 23 (1983).
A second obstacle bars Mr. Friend’s claim, even if we
were to construe the first paragraph of § 205 as applying
retroactively. The first paragraph of § 205 requires, as a
condition precedent to acquiring citizenship, that the child’s
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adjudication during minority, which at the time relevant here
was up to age 21. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.
1995); see Nationality Act of 1940 § 101(g), 54 Stat. at 1137.
(That was a change from prior law; under Revised Statutes
§ 1993, the State Department had permitted children born
abroad and out of wedlock to acquire citizenship through
their citizen father so long as the father legitimated the child,
even after the age of majority. See Miller, 523 U.S. at 462
(Ginsburg, J., dissenting).) Mr. Friend concedes that he
cannot satisfy this condition. He contends that his paternity
was established by legitimation when his parents married in
1958, but that occurred when he was 27 years old, well after
the period of minority ended. Mr. Friend cannot claim the
benefit of § 205’s retroactive application—and with it the
assistance of § 201(e)’s liberalized residency requirement—
but at the same time assert that he is exempt from complying
with § 205’s legitimation requirement.2
We need not resolve Mr. Friend’s alternative argument
that § 205 violates equal protection principles. Mr. Friend
contends that granting mothers the benefit of § 205’s
retroactive application in the second paragraph of the statute,
but denying that benefit to fathers in the first paragraph,
results in unconstitutional gender discrimination. Even if we
were to agree with that argument, the remedy would be to
make the first paragraph of § 205 retroactive. See Wauchope
v. U.S. Dep’t of State, 985 F.2d 1407, 1418 (9th Cir. 1993).
2

Mr. Friend asserts that the former Immigration and Naturalization
Service (INS) did not construe § 205’s legitimation requirement as
applying retroactively. But the INS interpretation letter he cites merely
states that the 1940 Act’s age limit on legitimation does not apply to those
seeking citizenship under earlier acts, which had no such age limit. INS
Interp. Ltr. 309.1, 2001 W L 1333861, at *2 & n.13 (Oct. 2001); Matter of
L–, 3 I. & N. Dec. 225, 225–26 (BIA 1948).

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That would still leave Mr. Friend unable to meet the first
paragraph’s requirement that his paternity have been
established by legitimation or adjudication during minority.
That requirement, although imposed only on fathers, is
constitutional. See Tuan Anh Nguyen, 533 U.S. at 62, 70;
Ablang, 52 F.3d at 805–06. Thus, it would survive even if
Mr. Friend prevailed on his equal protection argument
regarding the gender discriminatory nature of § 205’s
retroactive effect.
AFFIRMED.