United States v. Juan Castro-Cabrera , 452 F. App'x 789 ( 2011 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                OCT 07 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-50163
    Plaintiff - Appellee,              D.C. No. 2:07-cr-00912-DDP-1
    v.
    MEMORANDUM*
    JUAN BAUTISTA CASTRO-CABRERA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Dean D. Pregerson, District Judge, Presiding
    Argued and Submitted September 2, 2011
    Pasadena, California
    Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
    District Judge.**
    Juan Bautista Castro-Cabrera (“Castro-Cabrera”) seeks review of the district
    court’s denial of his motion to dismiss his indictment, as well as review of the
    district court’s grant of the government’s related motion in limine. The standard of
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Michael Patrick McCuskey, Chief District Judge for
    the U.S. District Court for Central Illinois, Urbana, sitting by designation.
    review is de novo. United States v. Caruto, 
    627 F.3d 759
    , 762 (9th Cir. 2010)
    (district court's denial of a motion to dismiss an indictment reviewed de novo);
    United States v. Schafer, 
    625 F.3d 629
    , 637 (9th Cir. 2010) (district court's
    decision to exclude evidence of a particular defense reviewed de novo).
    A grand jury returned an indictment against Castro-Cabrera for being an
    alien found in the United States following deportation in violation of 
    8 U.S.C. § 1326
    . Castro-Cabrera filed a motion to dismiss the charge, arguing that he was a
    United States citizen because he was born out of wedlock to a U.S. citizen mother
    and thus qualified for derived citizenship. 
    8 U.S.C. §1409
    (c) (providing for United
    States citizenship if the person is born “out of wedlock” and if “the mother had the
    nationality of the United States at the time of such person’s birth, and if the mother
    had previously been physically present in the United States . . . for a continuous
    period of one year.”). The district court denied the motion, concluding that Castro-
    Cabrera was born in wedlock. The government then filed a motion in limine
    asking the district court to exclude evidence and argument relating to the defense
    of acquired citizenship pursuant to 
    8 U.S.C. § 1409
    (c), which the district court
    granted. Castro-Cabrera then pled guilty with a conditional guilty plea, reserving
    the right to appeal the district court’s decision. This appeal followed.
    2
    Castro-Cabrera argues that the district court erred in denying his motion to
    dismiss because he was born “out of wedlock.” He contends that his parents were
    never validly married because, under the Mexican Constitution, his mother—a
    United States citizen—was required to request and obtain permission from the
    Mexican government to marry a Mexican citizen, and that she did not do this.
    Even though Castro-Cabrera’s parents were both deceased and had been married
    long ago in 1951, he sought an annulment from a Mexican court, which granted it
    and held that the marriage was void ab initio under Mexican law.
    The determination of Castro-Cabrera’s citizenship depends on the meaning
    of “out of wedlock” as the term is used in 
    8 U.S.C. §1409
    (c). This is a question of
    federal statutory law. But determination of the federal question of interpretation of
    the federal statute can be informed by considering legal relationships created under
    state or foreign law. See Minasyan v. Gonzales, 
    401 F.3d 1069
    , 1076 (9th Cir.
    2004).
    The district court denied the motion to dismiss, despite the annulment.
    Experts for both Castro-Cabrera and the government had opined that Mexican law
    presumptively treats the children of a marriage that is later annulled as legitimate
    children—in other words, as born in wedlock. On this ground the district court
    concluded Castro-Cabrera was not born out of wedlock. We agree. We also note
    3
    that the purposes for which Congress established the liberalized standard in 
    8 U.S.C. §1409
    (c) were not applicable. The district court further concluded that in
    analogous immigration contexts, courts have refused to “relate back” a foreign or
    state court annulment, divorce, or separation decree, even if the judgment at issue
    purports to annul a marriage ab initio. See, e.g., Hendrix v. INS, 
    583 F.2d, 1102
    ,
    1103 (9th. Cir. 1978) (finding that a marriage later annulled ab initio does not
    relate back to the time of an immigrant’s entry). We agree that in an appropriate
    case such as this our precedent permits a district court to refuse to give retroactive
    effect to a change in family status determined by a foreign court, in part out of
    concern that it could be a way to manipulate the outcome of federal immigration
    law proceedings. See, e.g., Hendrix v. INS, supra. See also Bustamante-Barrera v.
    Gonzales, 
    447 F. 3d 388
    , 395-96 (5th Cir. 2006); Fierro v. Reno, 
    217 F. 3d 1
     (1st
    Cir. 2000); Garcia v. INS, 
    31 F. 3d 441
     (7th Cir. 1994).1 We affirm the district
    court’s denial of the motion to dismiss the indictment.
    1
    The government also raises the question of whether the Mexican annulment
    decree is proper under Mexican law, arguing that it was moot because both of the
    parents were dead at the time it was entered; that there was no real opportunity for
    any interested person to contest the annulment; the parents being dead weren’t
    available to contest the charges underlying the annulment; and no government
    officials appeared in the action. We need not reach the issue of validity of the
    annulment because under Hendrix, the district court permissibly could decline to
    give it retroactive effect.
    4
    Castro-Cabrera further argues that the district court erred when it granted
    over objection the government’s motion in limine to exclude any evidence or
    argument at trial regarding the defense of acquired citizenship pursuant to the
    standard set forth in 
    8 U.S.C. § 1409
    (c). Citizenship is not an affirmative defense
    but rather alienage, the lack of U.S. citizenship, is an element of the crime that the
    prosecution must prove. United States v. Sandoval-Gonzalez, 
    642 F.3d 717
    ,
    722–23 (9th Cir. 2011). A defendant has a right to present evidence in an effort to
    cast doubt on the government’s proof of alienage, without any initial burden of
    production or proof being placed on the alien. 
    Id.
     However, a defendant must still
    meet the requirement of relevance to present evidence on alienage. 
    Id. at 723
    .
    Castro-Cabrera argues that United States v. Marguet-Pillado, — F.3d —,
    No. 10-50041, 
    2001 WL 3524198
     (9th Cir. Aug. 12, 2011), requires reversing the
    district court’s decision. In Marguet-Pillado, we held that the district court erred
    by not allowing the defendant to present evidence of derivative citizenship. 
    Id.
    However, in that case there was a dispute whether the defendant was biologically
    related to his citizen father. 
    Id.
     The proffered evidence was relevant to a factual
    issue in dispute. But here, even if Castro-Cabrera’s factual allegations are accepted
    as true, the controlling issue is the meaning of the statutory terms of 
    8 U.S.C. §1409
    (c). Because the district court correctly concluded that Castro-Cabrera was
    5
    not born “out of wedlock” within the meaning of §1409(c) and was considered a
    legitimate child under Mexican law, and because the annulment in a Mexican court
    after the parents were dead did not compel retroactive effect, Castro-Cabrera’s
    proffered evidence was irrelevant after the district court declined to dismiss the
    indictment. We hold that the district court did not err in granting the government’s
    motion in limine. The district court properly could consider that such evidence
    would be unduly confusing to the jury in light of the district court’s decision not to
    dismiss the indictment.
    AFFIRMED.
    6