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Ninth Circuit Calling Out The Executive Branch On The "Culture of NO!"[1]

by Joseph P. Whalen

While the Ninth Circuit did not use the same phrase that I use to describe the mentality I have seen first-hand, it points out that "[t]he government's position is unfair as well as erroneous." In the case of Anderson v Holder, No. 07-74042 (9th Cir. March 12, 2012)[2] , the Ninth Circuit additionally noted that "[t]he government's position is that the word "legitimation" should be read broadly when a broad reading results in the denial of citizenship, and narrowly when a narrow reading results in the denial of citizenship. ..."

Evidentiary Burden and Burden of Proof:

"There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship." Fedorenko v. United States, 449 U.S. 490, 506 (1981). 8 C.F.R. 341.2(c) provides that the burden of proof shall be on the claimant to establish the claimed citizenship by a preponderance of the evidence. In order to meet this burden, the applicant must submit relevant, probative and credible evidence to establish that the claim is "probably true" or "more likely than not." Matter of E-M-, 20 I&N Dec. 77,79-80 (Comm. 1989).

A person may only obtain citizenship in strict compliance with the statutory requirements imposed by Congress. INS v. Pangilinan, 486 U.S. 875, 884 (1988). Moreover, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect" and that any doubts concerning citizenship are to be resolved in favor of the United States. Berenyi v. District Director, INS, 385 U. S. 630, 637 (1 967). The applicant must meet this burden by establishing the claimed citizenship by a preponderance of the evidence. 8 C.F.R. 341.2(c).

The major point of the Anderson cases was to answer two questions of law:

"... first, whether "legitimation" requires an affirmative act, as the district court held, rather than simply the status of being legitimate; and second, whether Anderson's paternity was "established" under Arizona law. Answering the first question in the negative and the second in the affirmative, we hold that Anderson is a citizen of the United States and remand to the agency to vacate the removal order."

The District Court[3] answered those questions to the contrary. The District Court was saddled with all the questions posed by the claimant (Gary Anderson). The lower court had to address potential claims via the naturalized mother, the adoptive USC father, and the unwed USC biological father. The first two scenarios were somewhat easily disposed of, but the last one is where the real controversy arose.

The Ninth Circuit pared down the essence of issue to the two questions stated above. The District Court has to wade through several additional issues that the Ninth Circuit either had no disagreement with or found it unnecessary to revisit or discuss in any depth.

At the time of Anderson's birth in 1954, former 8 U.S.C. 1401(a)(7) or 301(a)(7) of the Immigration and Nationality Act of 1952 (INA) conferred United States citizenship at birth to:

a person born outside of the geographical limits of the United States and its outlying possessions 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 or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.
8 U.S.C. 1401(a)(7) (June 27, 1952). 8 U.S.C. 1409(a) [INA 309(a)] provided that 1401(a)(7) [ 301(a)(7)] could provide citizenship to children born out-of-wedlock only "if the paternity of such child is established while such child is under the age of twenty-one years by legitimation." Id. 1409(a). Accordingly, under the statute, the method by which an out-of-wedlock child can establish his paternity is through being legitimated.

In addition, 1101(c)(1) [INA 101(c)(1)] provided that the term "child" meant:

an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or elsewhere, and, except as otherwise provided in sections 1431-1434 of this title [former versions of INA 320-323], a child adopted in the United States, if such legitimation or adoption takes-place before the child reaches the age of sixteen years, and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption. Id. 1101(c)(1).

The District Court found that the cases cited by Anderson were "...distinguishable, because neither interpreted the phrase "paternity by legitimation" and instead found that a child was "legitimate" for immigration purposes under the law of a state that had abolished legitimacy...." The District Court agreed with a sister District Court's reasoning in Flores-Torres v. Holder, Nos. C 08-01037 WHA, C 09-03569 WHA, --- F. Supp. 2d ----, 2009 WL 5511156 (N.D. Cal. Dec. 23, 2009),

"[T]hat to hold that petitioner had his father's paternity established by legitimation when he took no affirmative legal steps to connect himself to his child in any manner would read the words "by legitimation" out of the statute. This is contrary to the plain language of the statute and Congress's intent to avoid fraud. Accordingly, petitioner does not meet the requirements of 1409(a) under Arizona law." At p. 19
I am not sure which decision I agree with. Both make sense and both seem to be valid interpretations. This is an issue that is probably worthy of raising to the the U.S. Supreme Court. While the Ninth Circuit makes a point of accusing the executive branch agencies of being "unfair", the Ninth Circuit is notorious for its bias against the government in immigration and nationality cases and has been overruled by the Supreme Court more often than any other circuit in such cases. I just don't know what to think. Congress was pretty clear when writing the law in the early 1950s, and some of the issues raised were previously raised and addressed. The District Court was well supported when it relied on the legislative history from the Senate. The Ninth Circuit seemed well supported in relying on the Arizona legislative history. I'd like the Supreme Court to weigh in on this one.


1 Posted 3-13-2012 at:
2 See:

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.