Immigration & Crimes
Immigration & Health care
Behind the Case
NO. 12-60087 (5th Cir. Sept. 11, 2013)
ATTORNEY: Marlene A. Dougherty
by Sheeba Raj
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.