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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
97-70915 11/21/00 



Petitioner,                                           No. 97-70915

v.                                                    INS No.
SERVICE,                                              OPINION

Petition to Review a Decision of
the Immigration and Naturalization Service

Argued and Submitted
August 10, 2000--Seattle, Washington

Filed November 21, 2000

Before: Betty B. Fletcher and A. Wallace Tashima,
Circuit Judges, and Adrian G. Duplantier, District Judge.*

Opinion by Judge Tashima

*The Honorable Adrian G. Duplantier, Senior United States District
Judge for the Eastern District of Louisiana, sitting by designation.


Karen Gilbert, Seattle, Washington, for the petitioner.


Michelle Slack, U.S. Department of Justice, Washington,
D.C., for the respondent.

TASHIMA, Circuit Judge:

Stanley Russell Scales, Jr. ("Petitioner"), petitions for
review of a decision of the Board of Immigration Appeals
("BIA"), dismissing his appeal from a final order of deporta-
tion. Petitioner contends that he is a United States citizen by
virtue of his father's U.S. citizenship; therefore, that he is not
deportable under S 241(a)(2)(A)(iii) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. S 1251(a)(2)(A)(iii), as an
alien convicted of an aggravated felony.1  We must decide
whether 8 U.S.C. S 1401 requires a blood relationship
between a person born outside the United States and his U.S.
citizen parent, a question of first impression. We hold that it
does not, and so grant the petition.

Review Jurisdiction

Under the transitional rules of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA"),
we lack jurisdiction over this appeal if Petitioner is an alien
deportable because of having committed an aggravated felony.2
1 Petitioner also contends that the retroactive application of S 440(d) of
the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") to
his case violates the due process clause. Because we grant his petition on
the basis that he is a U.S. citizen, we do not address his claim regarding
the AEDPA.
2 IIRIRA's transitional rules apply to cases in which a final deportation
or exclusion order was filed after October 30, 1996, and which were pend-
ing before April 1, 1997. See Hose v. INS, 180 F.3d 992, 995 (9th Cir.
1999) (en banc). The transitional rules apply here because deportation pro-
ceedings were commenced against Petitioner on February 6, 1996, and the
final deportation order was filed on August 1, 1997.


IIRIRA S 309(c)(4)(G); see Magana-Pizano v. INS, 200 F.3d
603, 607 (9th Cir. 1999); Briseno v. INS, 192 F.3d 1320, 1322
(9th Cir. 1999).3 "We have jurisdiction to determine whether
we have jurisdiction over the merits of this petition for
review," however. Alberto-Gonzalez v. INS, 215 F.3d 906,
908 (9th Cir. 2000).

We have jurisdiction over a nationality claim under 8
U.S.C. S 1252(b)(5), which provides the following procedure
to determine nationality claims:4

       (A) Court determination if no issue of fact

       If the petitioner claims to be a national of the
      United States and the court of appeals finds from the
      pleadings and affidavits that no genuine issue of
      material fact about the petitioner's nationality is
      presented, the court shall decide the nationality

       (B) Transfer if issue of fact

       If the petitioner claims to be a national of the
      United States and the court of appeals finds that a
3 IIRIRA S 309(c)(4)(G) provides, in part, that

      there shall be no appeal permitted in the case of an alien who is
      inadmissible or deportable by reason of having committed a
      criminal offense covered in section 212(a)(2) or section
      241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nation-
      ality Act (as in effect as of the date of the enactment of this Act)
      . . . .

IIRIRA S 309(c)(4)(G).
4 Although "[n]ationality and citizenship are not entirely synonymous
. . . [t]he distinction has little practical impact today . . . . The provision
that a child born abroad out of wedlock to a United States citizen mother
gains her nationality has been interpreted to mean that the child gains her
citizenship as well . . . ." Miller v. Albright, 523 U.S. 420, 467 n.2 (1998)
(Ginsburg, J., dissenting).


      genuine issue of material fact about the petitioner's
      nationality is presented, the court shall transfer the
      proceeding to the district court of the United States
      for the judicial district in which the petitioner resides
      for a new hearing on the nationality claim and a
      decision on that claim as if an action had been
      brought in the district court under section 2201 of
      Title 28.

8 U.S.C. S 1252(b)(5).5


Petitioner was born in the Philippines in 1977, to Stanley
Scales, Sr. ("Scales"), an American citizen-serviceman at the
time, and Aily Topaz, a Philippine citizen. Scales and Topaz
met during the first week of September 1976, and one week
later, Topaz told Scales that she was pregnant, probably from
a prior relationship. Topaz and Scales were married on March
13, 1977, and Petitioner was born on April 6, 1977. When
Petitioner was two years old, the family moved to Texas,
where they lived until about 1988, at which time they moved
to the State of Washington, where they all apparently still
live. Scales and Topaz separated in 1994. There is nothing in
the record to indicate that Scales has ever treated Petitioner as
other than his own son.

On January 12, 1996, Petitioner was convicted in the Supe-
rior Court for King County, Washington, of a violation of the
Uniform Controlled Substances Act, Wash. Rev. Code
S 69.50, for possession with intent to deliver cocaine. On Feb-
5 Prior to IIRIRA, a similar provision was codified at 8 U.S.C.
S 1105a(a)(5). IIRIRA S 306 repealedS 1105a and amended S 1252 by
adding, inter alia, the above-quoted subsection. The subsection became
effective on April 1, 1997. IIRIRA S 306(c), as amended by Act of Octo-
ber 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656,S 2(1); Andreiu v.
Reno, 223 F.3d 1111, 1113 (9th Cir. 2000).


ruary 6, 1996, the Immigration and Naturalization Service
("INS") issued an Order to Show Cause, charging Petitioner
as deportable under INA S 241(a)(2)(A)(iii), as an alien con-
victed of an aggravated felony.6

At his deportation hearing, Petitioner conceded that he was
a citizen of the Philippines, and that he was deportable as an
alien convicted of an aggravated felony. On appeal to the
BIA, however, Petitioner contended that he is actually a U.S.
citizen, based on "the principle that children born during a
valid marriage are presumed offspring of that marriage." Peti-
tioner also argued that it was possible that Scales was his nat-
ural father. The BIA rejected his arguments on the merits,
citing an affidavit of non-paternity that his father had signed
in order to obtain an immigrant visa for Petitioner when the
family moved to the United States in 1979. In the affidavit,
Scales stated that he was not Petitioner's natural father, that
his wife was pregnant at the time she and Scales met, and that
he "accept[ed] [Petitioner] as [his] own son in every legal
sense permissible, but [ ] did not make any attempts of mak-
ing a claim for U.S. citizenship for him at this time or at any
other time."

The BIA reasoned that, in order "to acquire United States
citizenship at birth there must be a blood relationship between
the child and the parent through whom citizenship is
claimed," citing the Foreign Affairs Manual of the State
Department. Because there was no evidence in the record that
Petitioner was Scales' biological child, the BIA dismissed the
appeal. The BIA further rejected Petitioner's claim for relief
under INA S 212(c), citing, inter alia, AEDPAS 440(d) and
Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (B.I.A.
1996, A.G. 1997) (holding that AEDPA S 440(d) applied
retroactively to bar S 212(c) relief).
6 INA S 241(a)(2)(A)(iii) then provided that "[a]ny alien who is con-
victed of an aggravated felony at any time after entry is deportable." 8
U.S.C. S 1251(a)(2)(A)(iii) (recodified as amended in 1996 at 8 U.S.C.
S 1227(a)(2)(A)(iii)).


Standard of Review

Where, as here, the BIA conducts a de novo review of the
record, our review is limited to the decision of the BIA,
except to the extent that the Immigration Judge's decision is
expressly adopted by the Board. See Ghaly v. INS , 58 F.3d
1425, 1430 (9th Cir. 1995). "Factual determinations of the
BIA are reviewed under the substantial evidence standard,
and are upheld unless the evidence compels a contrary con-
clusion." Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.
1999) (internal quotation marks and citation omitted). The
BIA's determination of purely legal questions regarding the
INA is reviewed de novo. See Coronado-Durazo v. INS, 123
F.3d 1322, 1324 (9th Cir. 1997).


" `The applicable law for transmitting citizenship to a child
born abroad when one parent is a U.S. citizen is the statute
that was in effect at the time of the child's birth.' " United
States v. Viramontes-Alvarado, 149 F.3d 912, 915 (9th Cir.)
(quoting Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995)),
cert. denied, 525 U.S. 976 (1998). In 1977, the year of Peti-
tioner's birth, the applicable statute provided, inter alia, that
a person shall be a national and citizen of the United States
at birth who is

      born outside 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 out-
      lying 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 . . . may be included in


      order to satisfy the physical-presence requirement of
      this paragraph.

8 U.S.C. S 1401(a)(7) (1976) (redesignated in 1978 as
S 1401(g)). In addition, 8 U.S.C. S 1101 provided:

       The term "child" means 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 else-
      where, and . . . 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 legiti-
      mation or adoption.

8 U.S.C. S 1101(c)(1) (1976). Petitioner contends that, under
the law of Washington, where the family has resided since
Petitioner was 11 years old, there is a presumption that a man
is the natural father of a child born during marriage. See
Wash. Rev. Code S 26.26.040(1) (1986).7 He thus argues that
he was "legitimated" for purposes of S 1101(c)(1) and there-
fore meets the citizenship requirement of S 1401(a)(7) of
being born of a citizen parent.

The government, on the other hand, points to Scales' affi-
davit of non-paternity and Petitioner's own admission in his
deportation hearing that he is a Philippine citizen as proof of
Petitioner's alienage. In deportation proceedings, the INS has
7 At the time Petitioner's family moved to Washington, the statute pro-
vided, in part, that "[a] man is presumed to be the natural father of a child
if: (a) He and the child's natural mother are or have been married to each
other and the child is born during the marriage. " Wash. Rev. Code
S 26.26.040(1)(a) (amended in 1989, inserting "for all intents and pur-
poses" before "if").


the burden of establishing the facts supporting deportability
by "clear, unequivocal, and convincing evidence. " Woodby v.
INS, 385 U.S. 276, 277 (1966); see also Murphy v. INS, 54
F.3d 605, 608 (9th Cir. 1995). Evidence of foreign birth, how-
ever, gives rise to a rebuttable presumption of alienage, and
the burden then shifts to the petitioner to prove citizenship.
See Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir.
1981); see also Matter of Leyva, 16 I. & N. Dec. 118, 119
(BIA 1977).

[1] Petitioner concedes that he was born in the Philippines,
giving rise to the presumption of alienage. The circumstances
surrounding his birth are not generally disputed, although
Petitioner contends that it is possible that Scales is actually his
natural father. Therefore, Petitioner's arguments in support of
his citizenship rely not so much on disputed facts as on the
Washington state-law presumption that Scales is his father
because he was born in wedlock.8 This state-law presumption,
that Scales is Petitioner's natural father, in turn, may be rebut-
ted "only by clear, cogent, and convincing evidence." Wash.
Rev. Code S 26.26.040(2). The government contends that the
presumption is overcome by Scales' affidavit of non-

[2] "There are `two sources of citizenship, and two only:
birth and naturalization.' " Miller v. Albright, 523 U.S. 420,
423 (1998) (quoting United States v. Wong Kim Ark, 169 U.S.
649, 702 (1898)). Citizenship at birth can be acquired by
being born in the United States. If a person is not born in the
United States, he or she can acquire citizenship at birth only
8 Because these terms are not defined in the INA, see 8 U.S.C. S 1101,
we rely on dictionary definitions. A "legitimate " child is one "[b]orn of
legally married parents," or "born or begotten in lawful wedlock or legiti-
mized by the parents' later marriage." Black's Law Dictionary 912, 232
(7th ed. 1999). An "illegitimate child" is one "neither born nor begotten
in lawful wedlock nor later legitimized." Id. at 232. A "natural child" can
be a "child by birth, as distinguished from an adopted child," or "[a]n ille-
gitimate child acknowledged by the father." Id. at 232-33.


as provided by Congress. See id. at 423-24. Petitioner has not
been naturalized, claiming instead that he acquired citizenship
at birth by being born to a citizen father.

[3] The statutory provisions concerning citizenship do not
address the situation presented here, where the child is "legiti-
mate" by virtue of his parents being married at the time of his
birth, yet he may not be the "natural," or biological, child of
the citizen parent. Section 1401(a)(7) merely states that a per-
son "born . . . of parents one of whom is an alien, and the
other a citizen of the United States" is a citizen, if the resi-
dency requirement is met by the citizen parent. 9 It does not
address whether being "born of parents" requires only that the
person be born in wedlock, or, as the BIA concluded, that
there must be a blood relationship between the person claim-
ing citizenship and the citizen parent. A straightforward read-
ing of S 1401 indicates, however, that there is no requirement
of a blood relationship. Thus, even if the affidavit of non-
paternity is sufficiently "clear, cogent, and convincing" to
overcome the state law presumption that Scales is Petitioner's
natural father, it does not defeat Petitioner's acquisition of cit-
izenship under S 1401.

The INA does expressly require a blood relationship
between a person claiming citizenship and a citizen father, if
the person is born out of wedlock. See 8 U.S.C. S 1409(a)(1)
(setting forth legitimation requirements for a person born out
of wedlock to a citizen father). This provision does not apply
to Petitioner, however, because he was born to parents who
were married at the time of his birth.

In Miller, Justice Stevens noted that, if a child is born out
of wedlock to a citizen father,
9 Section 1101(c)(2), which defines the term "parent" for purposes of
S 1401, merely states that it "include[s ] in the case of a posthumous child
a deceased parent, father, and mother." 8 U.S.C.S 1101(c)(2) (1976).


      the unmarried male . . . need not participate in the
      decision to give birth rather than to choose an abor-
      tion; he need not be present at the birth; and for at
      least 17 years thereafter he need not provide any
      parental support, either moral or financial, to either
      the mother or the child, in order to preserve his right
      to confer citizenship on the child pursuant to
      S 1409(a).

Miller, 523 U.S. at 434 (discussing why it is rational to
require a citizen father to acknowledge paternity of a child
born out of wedlock). These concerns presumably are not
present if a child is born in wedlock. Moreover,S 1409
clearly was enacted, "at least in part, to ensure that a person
born out of wedlock who claims citizenship by birth actually
shares a blood relationship with an American citizen." Id. at
435. If Congress had wanted to ensure the same about a per-
son born in wedlock, "it knew how to do so." Custis v. United
States, 511 U.S. 485, 492 (1994); cf. Lindh v. Murphy, 521
U.S. 320, 329 (1997) (noting that AEDPA S 107(c) treats
chapter 153 of Title 28 differently that chapter 154 of the
same title, and stating that, "[n]othing, indeed, but a different
intent explains the different treatment"); Defenders of Wildlife
v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999), amended by
197 F.3d 1035 (9th Cir. 1999) (" `[w]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion' " (quoting Russello v. United States,
464 U.S. 16, 23 (1983)) (alteration in original)).

Presumably because of the lack of authority addressing the
instant issue, the government quotes the State Department
Foreign Affairs Manual, relied on by the BIA, which provides
as follows:

       The laws on acquisition of U.S. citizenship
      through a parent have always contemplated the exis-


      tence of a blood relationship between the child and
      the parent(s) through whom citizenship is claimed. It
      is not enough that the child is presumed to be the
      issue of the parents' marriage by the laws of the
      jurisdiction where the child was born. Absent a
      blood relationship between the child and the parent
      on whose citizenship the child's own claim is based,
      U.S. citizenship is not acquired.

7 U.S. Dep't of State, Foreign Affairs Manual S 1131.4-1(a),
reprinted in Charles Gordon et al., 17 Immigration Law and
Procedure 44 (rev. ed. 2000) ("FAM"). The government
urges that we defer to the FAM as an agency interpretation of
statute, citing Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984) (holding that,
when statutory language is ambiguous, courts should defer to
the reasonable interpretation of the agency charged by Con-
gress with implementing the statute). Determination of Peti-
tioner's citizenship is not a duty of the State Department,
however, but of the Attorney General. See 8 U.S.C. S 1103.

8 U.S.C. S 1104 provides:

       The Secretary of State shall be charged with the
      administration and the enforcement of the provisions
      of this chapter and all other immigration and nation-
      ality laws relating to (1) the powers, duties, and
      functions of diplomatic and consular officers of the
      United States . . . ; (2) the powers, duties, and func-
      tions of the Administrator [designated by the Secre-
      tary of State to administer the Secretary's duties, see
      8 U.S.C. S 1104(b)]; and (3) the determination of
      nationality of a person not in the United States.

8 U.S.C. S 1104(a); cf. 7 FAM Vol.S 1131.1-1(b) ("Section
104(a) of the [INA] gives the Secretary of State the responsi-
bility for the administration and enforcement of all nationality
laws relating to `the determination of nationality of a person


not in the United States.' "). Because Petitioner is not a "per-
son not in the United States," the State Department is not the
agency entrusted with the determination of Petitioner's citi-
zenship; therefore, its statement is not entitled to deference.10
See Proffitt v. FDIC, 200 F.3d 855, 860 (D.C. Cir.) ("When
a statute is administered by more than one agency, a particular
agency's interpretation is not entitled to Chevron defer-
ence."), reh'g en banc denied, 208 F.3d 1066 (2000); cf.
Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991)
("[W]e give considerable weight to [the State] Department's
opinion in matters concerning international affairs, its area of
expertise.") (emphasis added).11 

Moreover, the statement in the FAM is not specifically an
interpretation of S 1401 and, importantly, it is not an interpre-
tation "arrived at after, for example, a formal adjudication or
notice-and-comment rulemaking. Interpretations such as those
in opinion letters--like interpretations contained in policy
statements, agency manuals, and enforcement guidelines, all
of which lack the force of law--do not warrant Chevron-style
deference." Christensen v. Harris County, 120 S. Ct. 1655,
1662 (2000) (emphasis added); see also Moore v. Apfel, 216
F.3d 864, 869 & n.2 (9th Cir. 2000) (declining to apply Chev-
ron deference to Social Security Commissioner's HALLEX
10 The government cites Magnuson v. Baker, 911 F.2d 330 (9th Cir.
1990), which states that "Congress' vesting of the power in the Secretary
of State to determine citizenship flows naturally from the State Depart-
ment's duties." Id. at 333 n.5. This statement in Magnuson, however, was
in the context of the court's construction of 22 U.S.C. S 2705, which pro-
vides that a passport issued by the Secretary of State has "the same force
and effect as proof of United States citizenship as certificates of natural-
ization or of citizenship issued by the Attorney General or by a court hav-
ing naturalization jurisdiction." Id. at 332 (quoting 22 U.S.C. S 2705).
"Prior to the enactment of section 2705, only the Attorney General or a
naturalization court could determine who is a citizen of the United States."
Id. at 333. Thus, Magnuson does not address the State Department's
authority over citizenship determinations in a case such as Petitioner's.
11 There is no INS regulation interpreting S 1401 that addresses the issue
at bench.

Manual, citing Christensen); cf. United States v. Navarro, 160
F.3d 1254, 1257 n.4 (9th Cir. 1998) (noting that Department
of Justice's Manual for United States Attorneys does not
affect statutory analysis), cert. denied, 527 U.S. 1011 (1999).
We therefore decline to defer to the State Department's state-
ment on citizenship in the FAM.

[4] Section 1401 requires only that Petitioner be "born . . .
of parents," one of whom is a U.S. citizen, in order to acquire
citizenship. The record is uncontroverted that Petitioner was
born to Topaz and Scales during their marriage. There is no
requirement of a blood relationship between Petitioner and his
citizen father, as there is for an illegitimate child. We there-
fore hold that Petitioner acquired citizenship at birth under
S 1401.

We thus grant the petition for review, reverse the order of
the BIA dismissing Petitioner's appeal, and remand for such
further proceedings consistent with this opinion as may be

Petition for review GRANTED.