March 2014

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Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us sponsor: about us: 7 Practice Pointers 9 w Immigration & Crimes w Immigration & Health care u Behind the Case w going global NO. 12-60087 (5th Cir. Sept. 11, 2013) ATTORNEY: Marlene A. Dougherty by Sheeba Raj T he U.S. Court of Appeals for the Fih Circuit finally corrected an error last September that kept Texas Chapter Member Marlene A. Dougherty's client from rightfully claiming his birthright citizenship, only aer decades of having federal authorities repeatedly reject his claims based on an article in the Mexican constitution that didn't even exist. To make maers worse, the government has been erroneously applying this nonexistent provision to numerous cases since 1978. Legitimation Under INA §309 In ruling, the court pronounced Sigifredo Saldana a U.S. citizen since birth, holding, "… Saldana acquired full filial rights vis-a-vis his father under the laws of Tamaulipas, and thus his paternity was established by legitimation under INA §309." Saldana's father, who never married his mother, had formally acknowledged Saldana by placing his name on Saldana's birth certificate. "us, Saldana's paternity is established by legitimation if the law of Tamaulipas placed him 'in the same legal position as a child born in wedlock,' regardless of the applicable legal label," the Fih Circuit added, citing to In re Cabrera, 21 I&N Dec. 589, 591 (BIA 1996). "I was losing faith in our system with all of the denials and actions of agency employees with a complete disregard for the rule of law," said Dougherty, who has represented Saldana since 2005. In fact, at a scheduled N-600 interview in Harlingen, TX, Dougherty said that while waiting to be interviewed, Immigration and Customs Enforcement officials took Saldana and "dropped him off in Mexico." Dougherty was willing to pursue the case all the way to the U.S. Supreme Court; and that if she lost the appeal there, "I was ready to quit law as a profession." Going for EAJA Fees, Seeking Class Action Dougherty has petitioned for fees under the Equal Access to Justice Act, but the Office of Immigration Litigation plans to contest any enhanced fees, as well as any work done before the agency. A class action suit is also in the works. "We believe [that] the Department of Homeland Security and the Executive Office for Immigration Review should have to identify those who were deliberately and/or erroneously denied a finding of legitimacy based on the application of irrelevant and, other times, nonexistent articles of the Mexican Constitution and/or misstatement that legitimacy and paternity are different," Dougherty explained. "My faith in our system was restored, but the abusiveness of the government employees is still troublesome; my hope is that the damages claims will encourage them to be less abusive in their dealings with people." For aorneys who have clients confronting situations akin to Saldana's, Dougherty recommends moving to reopen if the denial cites to any section of the Mexican constitution or to Maer of Reyes, 16 I&N Dec. 436 (BIA 1978), which relies on the nonexistent Article 314 of the Mexican constitution. She also notes that an alternative would be to simply refile and include a brief asserting that the civil code for each state of Mexico is the appropriate law to reference, not the Mexican constitution, while also citing to Saldana v. Holder, No. 12-60087 (5th Cir. Sept. 11, 2013). Behind the Case: Saldana v. Holder SHEEBA RAJ is the staff legal editor and reporter for VOICE. Litigating Immigration Cases in Federal Court + LIBRARY BOOK

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