Well, this
is interesting. For over twenty years,
Sigifredo Saldana Iracheta insisted he was a U.S. citizen because he was born
to an American father and a Mexican mother in a city just south of the Texas
border. The federal government rejected his claims over and over again,
deporting him at least four times and at one point detaining him for nearly two
years as he sought permission to join his wife and three children in South
Texas. The government argued that the
only way for Saldana to gain legal legitimacy would have been for his parents
to marry, which they never did.
In its
September 11th decision, the Fifth Circuit Judge Jennifer Walker
Elrod disagreed with the government finding that Saldana acquired citizenship
through his U.S. Citizen father, met the U.S. citizenship requirements of INA
§§ 301 and 309, and remanded with instructions to vacate or terminate the order
of removal.
The
problem with the government’s argument, the Judge Elrod point out, was that it
relied on provisions of the Mexican Constitution that either never existed or
do not say what DHS claimed they said.
In rejecting Saldana's claim to citizenship, the government had applied
case law from 1978 that cited Article 314 of the Mexican Constitution, which
supposedly dealt with legitimizing out-of-wedlock births. This provision never
existed.
Most recently, the government
had cited to a different provision of the Mexican Constitution, Article 130, to
deny Saldana’s claim in 2004. While this provision does exist, it only states that
marriage is a civil contract, as opposed to a religious one and says nothing
about legitimation or children. Under
the law applicable at the time, even though he was born out of wedlock, Saldana
was formally acknowledged (or “legitimated”) by his father when his father
placed his name on Saldana’s birth certificate before the official registry.
At oral
arguments last month in Houston, Judge Elrod was incredulous: “These people are
citizens by their birth, and for 35 years the government has been telling them
you are not citizens because of this law that doesn't exist.” Most denials such as Saldana’s are never
appealed, often because the people involved do not have the money to pursue the
matter to higher courts. This crucial
break-through in the law is a testament to Saldana’s persistence.
