Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Buitron

United States District Court, S.D. Texas, Houston Division

April 12, 2019

UNITED STATES OF AMERICA
v.
JOEL GARCIA BUITRON, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         The Defendant, Joel Garcia Buitron ("Defendant") is charged with illegally re-entering the United States after deportation in violation of 8 U.S.C. §§ 1326(a) and (b) (1).[1] Pending before the court is Defendant's Motion to Dismiss, or Alternatively, Request for a Jury Instruction Based Upon Derivative Citizenship ("Defendant's Motion") (Docket Entry No. 22). For the reasons explained below, Defendant's Motion will be denied.

         I. Factual Background

         According to his birth certificate, Defendant was born in Tamaulipas, Mexico, in 1967 to Francisco Garcia ("Defendant's Father") and Belia Buitron ("Defendant's Mother") (collectively, "Defendant's Parents").[2] Defendant's Father became naturalized as a United States Citizen in June of 1973.[3] Defendant's Parents later married in July of 1974 in Raymondville, Texas.[4] There is no evidence that Defendant's Mother has ever been naturalized.

         In September of 1974, Defendant's Father filed a Form 1-13 0 Petition for Alien Relative for the Issuance of a Visa for Defendant.[5] The Form 1-130 was approved by the Immigration and Naturalization Service on September 24, 1974.[6] Defendant subsequently gained lawful permanent resident status and entered the United States legally in December of 1974.[7] Defendant was convicted of a felony burglary and was deported on October 12, 1988.[8] Since then, Defendant has sustained multiple criminal convictions and has been removed from the United States several times .[9]

         II. Analysis

         The derivative citizenship statute, former 8 U.S.C. § 1432(a), [10] states:

(a) A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such a child is under the age of sixteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of sixteen years.

8 U.S.C. § 1432(a) (emphasis added). Because there is no evidence that Defendant's Mother was naturalized before Defendant became sixteen and because both of Defendant's Parents are still living, only § 1432(a)(3) could apply here. Section 1432(a)(3) confers derivative citizenship status only to the children of a naturalized mother who (1) were born out of wedlock and (2) whose paternity has not been established. Defendant is not eligible for derivative citizenship under § 1432(a) (3) because while he was born to an unwed mother, his mother was not naturalized before he was sixteen and his father's paternity has been established by legitimation through Defendant's birth certificate. See Iracheta v. Holder, 73 0 F.3d 419, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.