United States v. Cervantes-Nava

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 26, 2002
• Docket: 01-50200
• Status: Published

Opinion

REVISED FEBRUARY 26, 2002 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 01-50200 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROBERTO CERVANTES-NAVA, A/K/A ROBERTO NAVA CERVANTES, A/K/A ROBERTO CERVANTES-NOVA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas _________________________ February 4, 2002

Before JOLLY, SMITH, and BENAVIDES, (“DWI”) conviction. Because, in this criminal Circuit Judges. case, the federal courts cannot alter the deriva- tive citizenship requirements of the Immigra- JERRY E. SMITH, Circuit Judge: tion and Nationality Act (“INA”) to grant Cervantes-Nava citizenship, we affirm the con- The district court found Roberto Cervan- viction despite his equal protection challenge. tes-Nava guilty of illegally re-entering the Because this court recently has concluded that United States in violation of 8 U.S.C. § 1326 Texas DWI is not an aggravated felony, we and imposed an increase of sixteen in his base vacate the sentence and remand for resentenc- offense level for a driving while intoxicated ing. I. United States after deportation but disputed Maria de Cervantes (“Maria”) was born in his status as an alien, challenging the consti- the United States in 1923 and lived there until tutionality of the derivative citizenship laws moving to Mexico at age eleven. She married that classified him as a non-citizen. He ar- Pedro Cervantes Juarez, a citizen of Mexico. gued that the INA cannot constitutionally im- In August 1952, Maria began working as a pose a five-year continuous residency require- live-in housekeeper in the United States, re- ment on mothers of legitimate children while siding in the United States during the week requiring only a one-year requirement for and returning on the weekends to Mexico, mothers of illegitimate children. The district where her husband and sons lived. court rejected this argument, concluding that Cervantes-Nava was not a citizen. In 1957, Maria gave birth to Cervantes- Nava in Mexico; he was the legitimate child of The government filed a notice to enhance Pedro Cervantes Juarez. Maria had been phy- penalty, claiming that Cervantes-Nava’s DWI sically present in the United States for eleven conviction in Texas state court qualified as an years but not for a period of five years after aggravated felony conviction and justified an reaching the age of fourteen. The parties enhanced sentence under 18 U.S.C. § 16(b). agree that her presence in the United States The court rejected Cervantes-Nava’s argument was short of the five years necessary for Cer- that Texas DWI is not a crime of violence and vantes-Nava to obtain derivative citizenship enhanced the sentence by sixteen levels. This under the INA. yielded a guideline range of 46-57 months, and the court sentenced him to 46 months’ impris- In 1965, Maria filed with the Immigration onment. and Naturalization Service (“INS”) an applica- tion for Cervantes-Nava’s certification of citi- III. zenship. The INS denied the application be- We begin by examining the INA’s deriva- cause Maria had not satisfied the residency re- tive citizenship provisions.1 At the time of quirements necessary to confer citizenship on Cervantes’s birth,2 the parental residency Cervantes-Nava. If Cervantes-Nava had been requirements of the INA benefited illegitimate an illegitimate child, he would have satisfied the requirements for derivative citizenship. 1 The Fourteenth Amendment’s Citizenship In 1972, Cervantes-Nava became a lawful Clause does not apply to Cervantes-Nava, because permanent resident at the age of fifteen. In he was not “born or naturalized in the United 1993, an immigration judge deported him to States.” U.S. CONST. amend. XIV. Any right to Mexico because of convictions of two theft citizenship must be granted by Congress pursuant counts and because of the absence of family to its powers under U.S. CONST. art. 1, § 8, cl. 4 (granting Congress the power “To establish a uni- ties to the area. Despite the deportation order, form Rule of Naturalization”). Cervantes-Nava returned to the United States. 2 The parties agree that the law in effect at the II. time of Cervantes-Nava’s birth should govern his Cervantes-Nava stipulated to the facts un- alien status. United States v. Gomez-Orozco, 188 derlying the charge of illegal re-entry into the F.3d 422, 426-27 (7th Cir. 1999) (looking to law at time of birth).

2 children to the detriment of legitimate children. continuously before the child’s birth.4 In sum, the statutory scheme established more lenient Citizen fathers and wed citizen mothers residency requirements for unwed citizen faced longer residency requirements than did mothers than for married mothers, married unwed citizen mothers, making it easier for fathers, and unwed fathers. illegitimate children born abroad to obtain cit- izenship. Section 301(a)(7) of the INA gov- IV. erned generally the citizenship of children born Cervantes-Nava argues that the government outside the United States to a citizen parent cannot carry its burden of proving his alien and alien parent and required that the citizen status by relying on the denial of citizenship parent’s cumulative residency in the United under immigration statutes that he claims are States equal at least ten years and that the unconstitutional. The premise of Cervantes- parent spend five of those years in the United Nava’s argument is correctSSalien status States after age fourteen. 3 Section 309(c) counts as an element of the illegal re-entry governed the citizenship of illegitimate chil- charge that the United States must prove be- dren born abroad to citizen mothers and im- yond a reasonable doubt.5 As proof, the posed only the requirement that the citizen mother reside in the United States for a year 4 INA § 309(c), 66 Stat. at 238-39 (codified at 8 U.S.C. § 1409(c)(1952)), established residency requirements for the unwed citizen mothers of ille- gitimate children born abroad: 3 INA § 301(a)(7), Pub. L. No. 414, 66 Stat. 163, 236 (June 27, 1952) (codified at 8 U.S.C. [A] person born, on or after the effective § 1401(a)(7)(1952)), granted citizenship at birth to date of this chapter [December 23, 1952], outside the United States and out of wedlock [A] person born outside the geographical shall be held to have acquired at birth the limits of the United States or its outlying nationality status of his mother, if the moth- possessions of parents one of whom is an er had the nationality of the United States at alien, and the other a citizen of the United the time of such person’s birth, and if the States who, prior to the birth of such person, mother had previously been physically pres- was physically present in the United States ent in the United States or one of its outlying for a period or periods totaling not less than possessions for a continuous period of one ten years, at least five of which were after year. attaining the age of fourteen years . . . . The relevant portions of § 309(c) are unchanged Congress amended this statute effective in 1986. and are codified at 8 U.S.C. § 1409(c) (1994). Pub. L. No. 99-653, § 12, 100 Stat. 3655, 3657 5 (Nov. 14, 1986). T he current version tracks the The statute criminalizing illegal re-entry, same language but requires that the citizen parent 8 U.S.C. § 1326, repeatedly uses the word “alien,” spend a total of five years in the United States and and the Ninth Circuit has inferred that the United at least two years in the United States after age States must prove alien status as an element. fourteen. 8 U.S.C. § 1401(g) (1994). The current United States v. Marin Cuevas, 147 F.3d 889, 894 version favors unwed mothers, but favors them less (9th Cir. 1998). In dictum, we have listed alien than did the version in effect at the time of Cer- status as an element of the crime. United States v. vantes-Nava’s birth. (continued...)

3 government presented copies of the 1965 de- ship statutes are unconstitutional.7 nial of citizenship and the immigration judge’s 1993 order deporting Cervantes-Nava.6 Cer- A court reviewing the 1965 denial of citi- vantes-Nava does not challenge a single fact zenship or 1993 deportation order and finding underlying these orders and concedes that the the statute unconstitutional could correct the derivative citizenship statues at the time of his constitutional infirmity either by severing the birth made him an alien rather than a citizen. unconstitutional provisions or by striking down the statute in its entirety.8 We examine We will assume, arguendo, the unconstitu- these possibilities in turn. tionality of the derivative citizenship statutes A. and will consider whether that assumed uncon- Theoretically, a court would have two sev- stitutionality would disprove the alienage ele- erance options to cure the equal protection ment of the illegal re-entry conviction. That problems of which Cervantes-Nava com- hypothetical inquiry leads us to conclude that plains.9 A court (1) could sever the stringent, if a court found the derivative citizenship stat- utes unconstitutional, it either would sever the more lenient residency requirement for citizen 7 Naturally, this means that we do not need to mothers of illegitimate children or would strike address the constitutional issue. down the INA in its entirety. Neither remedy 8 would result in Cervantes-Nava’s being grant- Courts may not grant citizenship directly un- ed citizenship. Because any judicial interpreta- der their equitable powers. INS v. Pangilinan, 486 tion of the INA would classify him as an alien, U.S. 875, 883-84 (1988) (“More fundamentally, however, the power to make someone a citizen of the government has met its burden of proving the United States has not been conferred upon the his alien status even if the derivative citizen- federal courts, like mandamus or injunction, as one of their generally applicable equitable powers.”); Fedorenko v. United States, 449 U.S. 490, 517 (1981) (citation omitted) (“Once it has been deter- 5 (...continued) mined that a person does not qualify for citizen- Cabrera-Teran, 168 F.3d 141, 143-44 (5th Cir. ship, . . . the district court has no discretion to 1999). ignore the defect and grant citizenship.”); United States v. Ginsberg, 243 U.S. 472, 474 (1917) (“An 6 The government does not argue that these ad- alien who seeks political rights as a member of this ministrative decisions, standing alone, should es- nation can rightfully obtain them only upon the tablish Cervantes-Nava’s alien status. We decline terms and conditions specified by Congress. to decide the case on this ground. Giving the ad- Courts are without the authority to sanction chang- ministrative decisions such sweeping preclusive ef- es or modifications.”). Thus, the only potential fect would raise serious constitutional questions, remedy in this case would be to grant citizenship because neither the 1965 application for citizenship indirectly through statutory constructionSSeither nor the 1993 deportation proceeding included the via severance or by striking down the statute full range of constitutional rights available in a altogether. criminal trial. See United States v. Mendoza- 9 Lopez, 481 U.S. 828, 839 & n.15 (1987) (refusing Outside the immigration context, courts often to grant preclusive effect to deportation hearing be- sever parts of statutes to satisfy the Equal Protec- cause aliens lacked opportunity for meaningful tion Clause. E.g., Califano v. Westcott, 443 U.S. judicial review). (continued...)

4 default parental residency requirement of § 301(a)(7) and expand citizenship to both Thus, if a court were to use severance to legitimate and illegitimate children under cure the unconstitutionality, it would simply § 309(c) or (2) could sever the more lenient sever §309(c) and leave the rest of the statute parental residency requirement of § 309(c) and intact. Such a construction would not result in apply the more stringent, default requirement Cervantes Nava’s obtaining citizenship. of § 301(a)(7) to both legitimate and illegiti- mate children.10 B. The alternative to severance is to strike The first option, however, would not cure down the INA in its entirety. Because the the constitutional defect, because severance of Constitution does not grant Cervantes-Nava §301(a)(7) would not suffice to eliminate the citizenship, this option still would leave him unconstitutional distinction between legitimate without any putative source of citizenship and and illegitimate children, given that §309(c) would not affect his status as an alien. specifically confers benefits on children born “out of wedlock.” For these benefits to be Because there is no viable construction of extended to legitimate children, we not only the INA under which Cervantes-Nava would have to sever §301(a)(7), but also would have be a citizen, the district court properly found to rewrite §309(c). We decline to engage in that the government had proven his alien status legislative draftsmanship of this sort.11 beyond a reasonable doubt. Thus, the con- viction must stand. 9 (...continued) V. 76, 89-91 (1979). Courts have the power to sever The district court, under 18 U.S.C. § 16(b), parts of the INA as well. INS v. Chadha, 462 U.S. enhanced Cervantes-Nava’s base offense level 919, 932 (1983) (severing one-house veto from re- by sixteen for a Texas state DWI conviction. mainder of the INA). It remains uncertain, how- ever, whether courts may sever portions of the INA We review statutory and guideline interpreta- in a manner that expands citizenship. See Nguyen tions de novo. United States v. Chapa-Garza, v. INS, 533 U.S. 53, __, 121 S.Ct. 2053, 2065 243 F.3d 921, 924 (5th Cir. 2001). (2001) (reserving the question whether courts may sever portions of the INA to expand citizenship). While this case was on appeal, we held in another case that Texas DWI is not a crime of 10 A court sustaining an equal protection claim has “two remedial alternatives: [It] may either de- clare [the statute] a nullity and order that its bene- 11 fits not extend to the class that the legislature in- (...continued) tended to benefit, or it may extend the coverage of most compatible with the statute’s original text and the statute to include those who are aggrieved by structure, because severance is based on the as- the exclusion.” Heckler v. Mathews, 465 U.S. sumption that Congress would have enacted the 728, 738 (1984) (quoting Welsh v. United States, remainder of the law absent the severed portion. 398 U.S. 333, 361 (1970) (Harlan, J., concur- New York v. United States, 505 U.S. 144, 186 ring)). (1992). For example, we cannot sever portions of the statute where “the provisions are inseparable by 11 Courts should select the severance option virtue of their inherent character.” Carter v. (continued...) Carter Coal Co., 298 U.S. 238, 322 (1936).

5 violence or an aggravated felony under § 16(b). Id. at 923-28. Changes in sentencing law between sentencing and appeal that benefit the defendant require us to reverse and remand for resentencing. United States v. Miranda, 248 F.3d 434, 445 (5th Cir.), cert. denied, 122 S. Ct. 410 (2001). The district court should recalculate Cervantes-Nava’s sentence without the sixteen-level enhancement.

The judgment of conviction is AFFIRMED. The judgment of sentence is VACATED and REMANDED for resentencing.