United States v. Flores-Villar

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50445
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00592-BTM
RUBEN FLORES-VILLAR,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
July 17, 2008—Pasadena, California
Filed August 6, 2008
Before: Cynthia Holcomb Hall, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Rymer
9943
UNITED STATES v. FLORES-VILLAR 9947
COUNSEL
Elizabeth M. Barros, Assistant Federal Public Defender, San
Diego, California, for the defendant-appellant.
William A. Hall, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
9948 UNITED STATES v. FLORES-VILLAR
OPINION
RYMER, Circuit Judge:
Ruben Flores-Villar raises a challenge under the equal pro-
tection component of the Fifth Amendment’s due process
clause on the basis of age and gender to two former sections
of the Immigration and Nationality Act, 8 U.S.C.
§§ 1401(a)(7) and 1409 (1974), which impose a five-year res-
idence requirement, after the age of fourteen, on United States
citizen fathers — but not on United States citizen mothers —
before they may transmit citizenship to a child born out of
wedlock abroad to a non-citizen. This precise question has not
been addressed before, but the answer follows from the
Supreme Court’s opinion in Nguyen v. INS, 533 U.S. 53
(2001). There the Court held that § 1409’s legitimation
requirements for citizen fathers, but not for citizen mothers,
did not offend principles of equal protection. Assuming, as
the Court did in Nguyen, that intermediate scrutiny applies to
Flores-Villar’s gender-based claim and rational basis review
applies to his age-based claim, we conclude that the residence
requirements of §§ 1401(a)(7) and 1409 survive. As this is
what the district court held in a published opinion, United
States v. Flores-Villar, 497 F. Supp. 2d 1160 (S.D. Cal.
2007), and we see no other error, we affirm.
I
Flores-Villar was born in Tijuana, Mexico on October 7,
1974 to Ruben Trinidad Floresvillar-Sandez, his United States
citizen biological father who was sixteen at the time, and
Maria Mercedes Negrete, his non-United States citizen bio-
logical mother. Floresvillar-Sandez had been issued a Certifi-
cate of Citizenship on May 24, 1999 based on the fact that his
mother — Flores Villar’s paternal grandmother — is a United
States citizen by birth.
His father and grandmother brought Flores-Villar to the
United States for medical treatment when he was two months
UNITED STATES v. FLORES-VILLAR 9949
old. He grew up in San Diego with his grandmother and
father. Floresvillar-Sandez is not listed on Flores-Villar’s
birth certificate, but he acknowledged Flores-Villar as his son
by filing an acknowledgment of paternity with the Civil Reg-
istry in Mexico on June 2, 1985.
On March 17, 1997 Flores-Villar was convicted of importa-
tion of marijuana in violation of 21 U.S.C. §§ 952 and 960;
and on June 16, 2003 he was convicted of two counts of ille-
gal entry into the United States in violation of 8 U.S.C.
§ 1325. He was removed from the United States pursuant to
removal orders on numerous occasions: October 16, 1998,
April 16, 1999, June 4, 1999, June 4, 2002, October 20, 2003,
and March 28, 2005.
He was arrested again on February 24, 2006, and this time
was charged with being a deported alien found in the United
States after deportation in violation of 8 U.S.C. § 1326(a) and
(b). He sought to defend on the footing that he believed he
was a United States citizen through his father. Meanwhile,
Flores-Villar filed an N-600 application seeking a Certificate
of Citizenship, which was denied on the ground that it was
physically impossible for his father, who was sixteen when
Flores-Villar was born, to have been present in the United
States for five years after his fourteenth birthday as required
by § 1401(a)(7). The government filed a motion in limine to
exclude evidence of derivative citizenship for the same rea-
son, which the district court granted. The court denied Flores-
Villar’s corresponding motion in limine, to be allowed to
present evidence that he believed he was a United States citi-
zen.
The district court found Flores-Villar guilty following a
bench trial on stipulated facts.1 It denied his motion for judg-
ment of acquittal. Flores-Villar timely appeals his conviction.
1
The stipulation provided that Flores-Villar was found in San Diego on
February 24, 2006; he admitted that he did not apply for permission to
reenter the United States legally after being deported; he crossed the bor-
der by walking east of Otay Mesa, California, on October 7, 2005; and no
evidence was discovered that he had been granted permission to reenter.
9950 UNITED STATES v. FLORES-VILLAR
II
When Flores-Villar was born, § 1401(a)(7) provided, in rel-
evant part:
(a) The following shall be nationals and citizens of
the United States at birth:
...
(7) a person born outside the geographic 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 per-
son, 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.
8 U.S.C. § 1401(a)(7) (1974). Section 1409 provided:
(a) The provisions of paragraphs (3) to (5) and (7) of
section 1401(a) of this title, and of paragraph (2) of
section 1408, of this title shall apply as of the date
of birth to a child born out of wedlock . . . if the
paternity of such child is established while such
child is under the age of twenty-one years by legiti-
mation.
...
(c) Notwithstanding the provision of subsection (a)
of this section, a person born . . . outside the United
States and out of wedlock shall be held to have
acquired at birth the nationality status of his mother,
if the mother had the nationality of the United States
at the time of such person’s birth, and if the mother
had previously been physically present in the United
UNITED STATES v. FLORES-VILLAR 9951
States or one of its outlying possessions for a contin-
uous period of one year.
8 U.S.C. § 1409(a), (c) (1974).
[1] Thus, if a United States citizen father had a child out of
wedlock abroad, with a non-United States citizen mother, the
father must have resided in the United States for at least five
years after his fourteenth birthday to confer citizenship on his
child. But a United States citizen mother had to reside in the
United States for a continuous period of only one year prior
to the child’s birth to pass on citizenship. It is this difference
that Flores-Villar claims makes an impermissible classifica-
tion on the basis of gender and age.
[2] In Nguyen, the United States citizen father of a child
born in Vietnam to a Vietnamese mother challenged § 1409’s
imposition of different rules for obtaining citizenship depend-
ing upon whether the one parent with American citizenship is
the mother or the father. There, the father complained about
the affirmative steps a citizen father, but not a citizen mother,
was required by § 1409(a)(4) to take: legitimation; a declara-
tion of paternity under oath by the father; or a court order of
paternity. Assuming, without deciding, that the intermediate
level of scrutiny normally applied to a gender-based classifi-
cation applies even when the statute is within Congress’
immigration and naturalization power, 533 U.S. at 61, and
drawing on Justice Stevens’s prior opinion in Miller v.
Albright, 523 U.S. 420 (1998), the Court identified two
important governmental interests substantially furthered by
§ 1409’s distinction between citizen fathers and citizen moth-
ers. The first is “assuring that a biological parent-child rela-
tionship exists.” Id. at 62. Mothers and fathers are not
similarly situated in this respect; the relation is verifiable from
the birth itself in the case of the mother, while a father’s bio-
logical relationship to the child is not so easily established.
The second interest is ensuring “that the child and the citizen
parent have some demonstrated opportunity or potential to
9952 UNITED STATES v. FLORES-VILLAR
develop not just a relationship that is recognized, as a formal
matter, by the law, but one that consists of the real, everyday
ties that provide a connection between child and citizen parent
and, in turn, the United States.” Id. at 64-65. The mother
knows that the child is in being and has immediate contact at
birth such that an opportunity for a meaningful relationship
exists, whereas, as the Court put it, “[t]he same opportunity
does not result from the event of birth, as a matter of biologi-
cal inevitability, in the case of the unwed father.” Id. at 65.
Unlike an unwed mother, there is no assurance that the father
and his biological child will ever meet, or have the kind of
contact from which there is a chance for a meaningful rela-
tionship to develop. The Court emphasized that Congress
need not ignore these realities for purposes of equal protec-
tion, and found that the means chosen — additional require-
ments for an unwed citizen father to confer citizenship upon
his child — are substantially related to the objective of a rela-
tionship between parent and child, and in turn, the United
States. Id. at 66.
[3] Although the means at issue are different in this case —
an additional residence requirement for the unwed citizen
father — the government’s interests are no less important, and
the particular means no less substantially related to those
objectives, than in Nguyen.2 The government argues that
avoiding stateless children is an important objective that is
substantially furthered by relaxing the residence requirement
for women because many countries confer citizenship based
on bloodline (jus sanguinis) rather than, as the United States
2
Like the Supreme Court in Nguyen, we will assume that intermediate
scrutiny applies. The government makes a forceful argument that rational
basis review should apply given Congress’ broad authority under Article
I, Section 8 of the Constitution in matters related to citizenship and immi-
gration. See Fiallo v. Bell, 430 U.S. 787, 791-93 (1977). But we do not
need to decide which level of review is the most appropriate, and we do
not, for the equal protection challenge fails regardless of whether
§§ 1401(a)(7) and 1409 are analyzed under intermediate scrutiny, a ratio-
nal basis standard, or some other level of review in between.
UNITED STATES v. FLORES-VILLAR 9953
does, on place of birth (jus soli). We explained the conundrum
in Runnett v. Shultz:
One obvious rational basis for a more lenient policy
towards illegitimate children of U.S. citizen mothers
is that illegitimate children are more likely to be
“stateless” at birth. . . . As the government notes, if
the U.S. citizen mother is not a dual national, and the
illegitimate child is born in a country that does not
recognize citizenship by jus soli (citizenship deter-
mined by place of birth) alone, the child can acquire
no citizenship other than his mother’s at birth. This
policy clearly demonstrates a “rational basis” for
Congress’ more lenient policy towards illegitimate
children born abroad to U.S. citizen mothers.
901 F.2d 782, 787 (9th Cir. 1990). While Flores-Villar points
out that the opposite would be true in Iran, for example,
where an illegitimate child born to an Iranian mother and a
father who is not an Iranian citizen is regarded as having the
father’s nationality, this does not diminish the strength of
Congress’ interest in trying to minimize the risk of stateless-
ness overall. As the Supreme Court remarked in a different
context, statelessness is a deplored condition with potentially
“disastrous consequences.” Trop v. Dulles, 356 U.S. 86, 102
(1958). In any event, as Nguyen makes clear, we do not
expect statutory classifications always to be able to achieve
the ultimate objective. 533 U.S. at 70.
Avoiding statelessness, and assuring a link between an
unwed citizen father, and this country, to a child born out of
wedlock abroad who is to be a citizen, are important interests.
The means chosen substantially further the objectives.
Though the fit is not perfect, it is sufficiently persuasive in
light of the virtually plenary power that Congress has to legis-
late in the area of immigration and citizenship. See Nguyen,
533 U.S. at 70 (noting the difficult context of conferring citi-
zenship, and reiterating that an “exceedingly persuasive justi-
9954 UNITED STATES v. FLORES-VILLAR
fication” is established “by showing at least that the
classification serves ‘important governmental objectives and
that the discriminatory means employed’ are ‘substantially
related to the achievement of those objectives.’ ”) (quoting
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982));
see also Fiallo, 430 U.S. at 791-93, 799 n.8 (indicating that
congressional power is at its height with respect to immigra-
tion and citizenship, and that “legislative distinctions in the
immigration area need not be as ‘carefully tuned to alternative
considerations’ as those in the domestic area”) (internal cita-
tions omitted).
[4] Flores-Villar acknowledges that the prevention of state-
less children is a legitimate goal, but contends that it cannot
be furthered by penalizing fathers. In his view, the real pur-
pose of the statute is to perpetuate the stereotypical notion that
women should have custody of illegitimate children. Further,
he suggests, the length of residence in the United States says
nothing about the father-child relationship or the biological
basis of that relationship. And understandably, Flores-Villar
emphasizes that his father in fact had a custodial relationship
with him. However, the Court rejected similar submissions by
the father in Nguyen. As it explained:
This line of argument misconceives the nature of
both the governmental interest at issue and the man-
ner in which we examine statutes alleged to violate
equal protection. As to the former, Congress would
of course be entitled to advance the interest of ensur-
ing an actual, meaningful relationship in every case
before citizenship is conferred. Or Congress could
excuse compliance with the formal requirements
when an actual father-child relationship is proved. It
did neither here, perhaps because of the subjectivity,
intrusiveness, and difficulties of proof that might
attend an inquiry into any particular bond or tie.
Instead, Congress enacted an easily administered
scheme to promote the different but still substantial
UNITED STATES v. FLORES-VILLAR 9955
interest of ensuring at least an opportunity for a
parent-child relationship to develop. Petitioners’
argument confuses the means and ends of the equal
protection inquiry; § 1409(a)(4) should not be invali-
dated because Congress elected to advance an inter-
est that is less demanding to satisfy than some other
alternative.
533 U.S. at 69. The residence differential is directly related to
statelessness; the one-year period applicable to unwed citizen
mothers seeks to insure that the child will have a nationality
at birth. Likewise, it furthers the objective of developing a tie
between the child, his or her father, and this country. Accord-
ingly, we conclude that even if intermediate scrutiny applies,
§§ 1401(a)(7) and 1409 survive.
Sections 1401(a)(7) and 1409 satisfy rational basis review
as well. Legislation is presumed valid, and “will be sustained
if the classification drawn by the statute is rationally related
to a legitimate state interest.” City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440 (1985). Having passed inter-
mediate scrutiny, the statutory scheme necessarily is ratio-
nally related to a legitimate government purpose. This follows
from Runnett. There we held that it was rational to adopt a
more lenient policy for illegitimate children of United States
citizen mothers who satisfied a residence requirement than for
legitimate children whose mothers failed to meet a higher res-
idency requirement. 901 F.2d at 787.
Flores-Villar contends that there is no rational reason to
entrust an eighteen year old male to vote and serve in the mili-
tary, yet restrict his ability to confer citizenship on his child
when a woman, who has greater ability to choose where a
child is born, can transmit citizenship to her children without
a lengthy residence requirement. However, it is not irrational
to believe that residence in the United States advances the
objective of a link between the citizen, this country, and a
foreign-born child born out of wedlock, and that the children
9956 UNITED STATES v. FLORES-VILLAR
of citizen mothers born out of wedlock abroad run a greater
risk of being stateless than the children of citizen fathers.
Wauchope v. United States Department of State, 985 F.2d
1407 (9th Cir. 1993), upon which Flores-Villar relies, does
not suggest otherwise. There, we found no rational reason for
§ 1993 of the Revised Statutes of 1874, which accorded to
American citizen males, but not American citizen females, the
right to pass on citizenship to their foreign-born offspring. Id.
at 1416. The statutory scheme at issue here is different, and
is supported by a different rationale that is in accord with Mil-
ler, Nguyen, and Runnett.
[5] Rational basis review applies to the claim of age-based
discrimination because age is not a suspect class. Flores-
Villar’s position is that, because it is legally and physically
impossible for United States citizen fathers under age nine-
teen to confer citizenship upon their foreign-born, illegitimate
children even if they have resided in the United States for ten
years, whereas an unmarried citizen mother need only show
one year of residence, the statutory scheme treats men under
nineteen differently from similarly situated men over nine-
teen. He posits that allowing minor women to transmit their
citizenship to their foreign born out-of-wedlock children, but
not minor men, demonstrates there is no rational basis for
such discrimination. Further, in his view, irrationality is
shown by the fact that most states set the age of consent to
engage in sexual relations, hence conception, at age sixteen.
However, it is not irrational to believe that a United States cit-
izen father who has spent at least five years in residence dur-
ing his teenage years would have more of a connection with
this country to pass on than, say, a father who lived in the
United States between the ages of one and ten.
III
Flores-Villar also argues that §§ 1401 and 1409 violate
substantive due process because these provisions interfere
with personal decisions relating to marriage, procreation, fam-
UNITED STATES v. FLORES-VILLAR 9957
ily relationships, child rearing, and education, as well as with
the child’s fundamental right to parental involvement. He
lacks standing to pursue rights that belong to his father, how-
ever, as most of them do. Floresvillar-Sandez is not a party,
and the record discloses no obstacle that would prevent him
from asserting his own constitutional rights. See Singleton v.
Wulff, 428 U.S. 106, 113-16 (1976); United States v.
$100,348.00 in U.S. Currency, 354 F.3d 1110, 1127 (9th Cir.
2004) (noting the requirement for third-party standing that a
hindrance exist to the third party’s ability to protect his or her
own interests); see also Barrows v. Jackson, 346 U.S. 249,
257 (1953) (third-party standing accorded because it “would
be difficult if not impossible for the persons whose rights are
asserted to present their grievance before any court”). The
claimed right to parental involvement is personal to Flores-
Villar, but he fails precisely to describe a right deeply rooted
in the nation’s history, as he must do in order to sustain a sub-
stantive due process violation. Washington v. Glucksberg, 521
U.S. 702, 720 21 (1997). In any event, we have already
upheld similar requirements against similar challenges. See,
e.g., Runnett, 901 F.2d at 787; Uribe-Temblador v. Rosen-
berg, 423 F.2d 717, 718 (9th Cir. 1970).
IV
Given that his paternal grandmother was a United States
citizen, Flores-Villar submits that her years of residence
should be tacked on to his father’s for purposes of avoiding
constitutional infirmity and meeting the statutory requirement
of ten years residence. As we have concluded that
§ 1401(a)(7) passes constitutional muster, no need appears for
the district court (or us) to impute the residency of Flores-
Villar’s paternal grandmother to avoid unconstitutionality.
Regardless, the statute plainly speaks in terms of the resi-
dency of the citizen father; it provides no textual basis for
imputing residency of a grandparent.
Flores-Villar contends that our decisions in Cuevas-Gaspar
v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), and Lepe-Guitron
9958 UNITED STATES v. FLORES-VILLAR
v. INS, 16 F.3d 1021 (9th Cir. 1994), support construing
§ 1401(a)(7) to impute the residence of a citizen grandparent
to a citizen father who has a child out of wedlock while still
a minor. Cuevas-Gaspar and Lepe-Guitron indicate that in
some instances involving cancellation or withholding of
removal where the statute is silent on imputation, residency of
a parent may be imputed to a minor child. But § 1401(a)(7)
together with former § 1401(g) are clear that it is the parent
who must have resided in the United States for the specified
period. Section 1401(g) defines a citizen as “a person born
outside the geographical limits of the United States . . . of par-
ents 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” for the prescribed
period. Retention of lawful status is, in any event, different
from transmission of citizenship. Cf. Runnett, 901 F.2d at 784.
It is one thing to impute residence when removal is at stake,
another to impute it when citizenship is at stake. We decline
to import a theory of constructive residence to the clearly
articulated, and more demanding, requirements for transmit-
ting citizenship.
V
[6] In the wake of United States v. Smith-Baltiher, 424 F.3d
913, 925 (9th Cir. 2005), which permitted evidence of a
defense of reasonable belief that a defendant charged with
attempted illegal entry was a United States citizen, Flores-
Villar sought leave to introduce evidence of his belief that he
was a United States citizen. He contends that excluding it
denied him a meaningful opportunity to present a defense and
so violated the Sixth Amendment. We disagree. Attempted
illegal entry — at issue in Smith-Baltiher — is a specific
intent crime, but as Smith-Baltiher recognized, illegal reentry
and being found in the United States is not. Id. at 924. As the
crime charged is a general intent crime, Flores-Villar’s mis-
taken belief is not a defense.
UNITED STATES v. FLORES-VILLAR 9959
[7] Neither Staples v. United States, 511 U.S. 600, 619
(1994), nor United States v. Salazar-Gonzalez, 458 F.3d 851,
855 (9th Cir. 2006), is to the contrary. Both indicate that a
general intent mens rea requires a defendant to know the facts
that make what he does illegal. This means that the govern-
ment had to prove beyond a reasonable doubt that Flores-
Villar knew he was in the United States, not that the underly-
ing action (entering and remaining in this country) was itself
illegal.
VI
[8] Finally, Flores-Villar maintains that his conviction is
unsupported by sufficient evidence because the government
failed to prove that he lacked the consent of the Attorney
General to reapply for admission. Entry without the Attorney
General’s consent is an element of the crime of illegal reentry
under 8 U.S.C. § 1326. United States v. Blanco-Gallegos, 188
F.3d 1072, 1074 (9th Cir. 1999). Flores-Villar’s premise is
that the stipulated facts merely established that he did not
apply for permission to reenter the United States, which is the
second step of the reentry process and is sought from the
Department of State after the Attorney General first gives his
permission to apply. United States v. Cervantes-Flores, 421
F.3d 825, 834 (9th Cir. 2005). However, Flores-Villar points
to nothing in the record indicating that he had sought consent
to apply or that it had been granted and an application to reen-
ter was pending. The clear inference from his admission, and
the result of the record checks that were undertaken, is that
Flores-Villar neither asked for, nor received, the Attorney
General’s permission to apply for reentry. He unquestionably
did not get permission to reenter. In light of all the circum-
stances, including the fact that he also admitted walking
across the border east of Otay Mesa, California, a rational
trier of fact could have found beyond a reasonable doubt that
the Attorney General did not consent.
AFFIRMED.