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Beverly Hills, California, United States
Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Friday, September 20, 2013

US Pinned Legal Arguments on Nonexistent Law

Wall Street Journal
By Joe Palazzolo
September 19, 2013

In a handful of immigration cases dating back more than 30 years, the federal government hinged part of its legal arguments on a provision of the Mexican Constitution that doesn’t exist and never has.

The error, revealed in a little-noticed opinion by the Fifth U.S. Circuit Court of Appeals last week, appears to have been repeated at least four times in recent years.

The question before the New Orleans-based Fifth Circuit was whether a man born out of wedlock in Mexico to a father who is a U.S. citizen and a mother who isn’t could claim U.S. citizenship himself.

The court ruled that the man, Sigifredo Saldana Iracheta, was a U.S. citizen because his father had lived in the U.S. more than 10 years before Mr. Saldana was born in 1964, and because Mr. Saldana was “legitimated” under Mexican law before he turned 21.

The Department of Homeland Security had argued in administrative proceedings that Mr. Saldana was not a U.S. citizen, based in part on the proposition that Article 314 of the Constitution of Mexico — which, again, doesn’t exist — provides that children born out of wedlock may become legitimate only by the subsequent marriage of their parents.

The court cited three other cases since 2007 in which the government advanced Article 314 as a basis to deny U.S. citizenship to someone born in Mexico.  The error originated in a 1978 ruling by the Board of Immigration Appeals, the nation’s highest administrative immigration court, according to the Fifth Circuit.

When the Justice Department argued the case involving Mr. Saldana in the Fifth Circuit in August, it acknowledged the error, describing it as a  ”typo,” according to court documents. The department argued (unsuccessfully) against granting Mr. Saldana citizenship on different grounds.

It’s unclear whether the mistake changed the outcome of previous cases. Still, the Fifth Circuit said the federal government was guilty or more than a mere typo.

“The BIA’s mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases,” wrote Judge James E. Graves Jr. in the Sept. 11 opinion. “That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals.”

A Justice Department spokeswoman told Law Blog, “We are studying the decision but have no comment at this time.” The Department of Homeland Security hasn’t provided Law Blog with a comment yet. We’ll update as soon as it does.

Marlene A. Dougherty, a lawyer for Mr. Saldana, told Law Blog last week that the family was “thrilled” by the ruling. She praised the Fifth Circuit for taking the time to review the case carefully and highlighting the error.

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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