The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION(Doc. No. 51, 56)
On November 28, 2006, Carlos Jesus Marguet-Pillado ("Defendant") was indicted on one count of being a deported alien found in the United States. Defendant has moved this Court to reconsider its previous order denying his motion to dismiss the indictment due to an invalid deportation.
Defendant was born in Tijuana on November 4, 1968. Defendant's biological father is unknown, and the parties agree that Mr. Michael Marguet ("Mr. Marguet") is not Defendant's biological father. Nonetheless, Mr. Marguet held Defendant out as his son, claiming him as a dependent on tax returns and obtaining federal food stamp aid for him. Mr. Marguet was named as Defendant's father on a Mexican birth certificate filed on August 23, 1973--almost five years after defendant's actual date of birth. During an interview with an immigration examiner on January 9, 1974, Mr. Marguet claimed that he registered Defendant as his own child because he wanted to marry defendant's mother, Juana Pillado, and immigrate her family. That same date, Defendant became a lawful permanent resident.
After convictions in San Diego County Superior Court for second-degree burglary and attempted murder with a firearm, Defendant was released from prison in 2002. In 2006, Defendant was taken into custody in an unrelated incident*fn1 and turned over to immigration authorities. Defendant moved to terminate removal proceedings, claiming derivative citizenship through Mr. Marguet. The Government opposed the motion on the basis of evidence Mr. Marguet was not Defendant's biological father. In a hearing on September 22, 2006, the Immigration Judge ("IJ") denied Defendant's motion to terminate removal proceedings and ordered Defendant deported.
Defendant was apprehended in a traffic stop in Chula Vista on October 20, 2006. He was arrested on two outstanding domestic violence warrants and referred to immigration officials. Defendant was charged by indictment with being a deported alien found in the United States in violation of 8 U.S.C. § 1326.
B. Defendant's June 26, 2007 Motion to Dismiss
On June 26, 2007, Defendant filed a motion to dismiss the indictment based on an invalid deportation. Defendant argued his deportation proceeding were fundamentally unfair because the IJ incorrectly advised him on the law by stating that he could not establish derivative citizenship unless he had a biological relationship with Mr. Marguet. The Defendant asserted he was prejudiced by the IJ's erroneous interpretation because he was eligible for derivative citizenship as the legitimated child of Mr. Marguet.
In a July 16, 2007 Order ("July 16th Order"), this Court denied Defendant's motion on two independent grounds. First the Court concluded the IJ had properly interpreted the relevant law, the 1968 version of 8 U.S.C. § 1409,*fn2 as requiring a blood relationship between a U.S. citizen parent and child in order to transmit citizenship to a child born abroad. Second, and in the alternative, the Court concluded that even if the IJ had erred in its interpretation of section 1409-and the section were instead interpreted to allow for derivative citizenship where no blood relationship existed, thus making Defendant eligible for derivative citizenship if he were in fact legitimated under California law-Defendant had failed to establish he was prejudiced by the IJ's contrary interpretation of the law because he had not cited the applicable California law on legitimation. The Court explained that while Defendant had presented the California law on legitimation effective in 1975, Civil Code § 7004, the Court was required to apply the law in effect at the time of his birth, 1968, which the Defendant had failed to identify.
The matter proceeded a bench trial on September 25, 2007. At the conclusion of the proceedings, the Court found Defendant guilty of being a deported alien found in the United States in violation of 8 U.S.C. § 1326.
C. Defendant's Motion for Reconsideration
On January 29, 2008, Defendant filed the present motion for reconsideration. He contends the Court erred in its analysis of prejudice in the July 16th Order. Specifically, Defendant argues while the Court was correct in its assertion that it must apply the law of derivative citizenship applicable to Defendant at the time of his birth, the applicable federal law, 8 U.S.C. § 1409, only requires "paternity of [a] child is established while such child is under the age of twenty-one years by legitimation." 8 U.S.C. § 1409 (1952) (emphasis added). Which, the Defendant argues, means the legitimating acts-as defined by the law of the child's domicile (in this case California)-can take place at any time before he turns twenty-one. Defendant asserts that because Mr. Marguet held Defendant out as his own and placed his name on his birth certificate, California recognized Mr. Marguet's legitimate paternity at least by 1975, the year in which Civil Code § 7004 was enacted.*fn3 In that year Defendant was seven years old, or under the age of twenty-one. Thus, Defendant urges, pursuant to 8 U.S.C. § 1409, his "paternity . . . [was] established . . . by legitimation" while he was under the age of twenty-one, and as such, he is entitled to derivative citizenship. In the alternative, Defendant argues application of California Civil Code Section 230-the law on legitimation in effect at the time of his birth-would still have served to establish paternity by legitimation pursuant to 8 U.S.C. § 1409.
Finally, and in the further alternative, Defendant argues he was conclusively legitimated under Mexican law even before his entry into the United States. Defendant urges the Court to ...