Tuesday, September 24, 2013
Two weeks ago the Fifth Circuit Court of Appeals ruled a man born in Mexico was in fact a United States citizen because his father had been born in the U.S. The court acknowledged the man had been wrongfully deported multiple times.
In rejecting [Sigifredo Saldana Iracheta]'s bid for citizenship, the government sought to apply an old law that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. But there was a problem: The Mexican Constitution has no such article.
The error appears to have originated in 1978, and it's been repeated ever since, frustrating an untold number of people who are legally entitled to U.S. citizenship but couldn't get it.
At this time it is not known how many applicants for citizenship may have been denied in the same way. As Laura Murray-Tjan of Boston College Law School writes for The Huffington Post:
One shudders to think how many Americans have been deported because of this mistake. And the question becomes, what will the U.S. government do about it? Unearth every administrative law decision since 1978 ordering the deportation of Mexican natives claiming U.S. citizenship through their fathers? Send an army of federal agents to Mexico to locate and confer passports on persons illegally deported 30 years ago? Award damages for lost wages and emotional distress?
One of the circumstances surrounding Saldana Iracheta's case is that he was born in Mexico to a U.S.-citizen father and Mexican mother who were not married.
While "illegitimate" is no longer considered a polite way to describe a child, and the U.S. Surpeme Court ruled in the 1970s any legal distinction is a violation of the 14th Amendment, the marital status of parents at the time of birth remains a factor in immigration policy.
"Proof of legitimation" of a child is required for the U.S. Citizenship and Immigration Services' Application for Certificate of Citizenship. According to the application's instructions:
... you must be the biological child of your U.S. citizen parent, and different provisions apply depending on whether you were born in wedlock or out of wedlock.
Of course, in the section of the USCIS Adjudicator's Field Manual that defines legitimation, it also lists as precedent the flawed 1978 court ruling that cited the nonexistent Mexican law.