                   REVISED FEBRUARY 26, 2002
            IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                                        _______________

                                          No. 01-50200
                                        _______________



                                 UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                            VERSUS

                                 ROBERTO CERVANTES-NAVA,
             A/K/A ROBERTO NAVA CERVANTES, A/K/A ROBERTO CERVANTES-NOVA,


                                                           Defendant-Appellant.


                                  _________________________

                          Appeal from the United States District Court
                               for the Western District of Texas
                                _________________________
                                       February 4, 2002




Before JOLLY, SMITH, and BENAVIDES,                (“DWI”) conviction. Because, in this criminal
  Circuit Judges.                                  case, the federal courts cannot alter the deriva-
                                                   tive citizenship requirements of the Immigra-
JERRY E. SMITH, Circuit Judge:                     tion and Nationality Act (“INA”) to grant
                                                   Cervantes-Nava citizenship, we affirm the con-
   The district court found Roberto Cervan-        viction despite his equal protection challenge.
tes-Nava guilty of illegally re-entering the       Because this court recently has concluded that
United States in violation of 8 U.S.C. § 1326      Texas DWI is not an aggravated felony, we
and imposed an increase of sixteen in his base     vacate the sentence and remand for resentenc-
offense level for a driving while intoxicated      ing.
                      I.                               United States after deportation but disputed
   Maria de Cervantes (“Maria”) was born in            his status as an alien, challenging the consti-
the United States in 1923 and lived there until        tutionality of the derivative citizenship laws
moving to Mexico at age eleven. She married            that classified him as a non-citizen. He ar-
Pedro Cervantes Juarez, a citizen of Mexico.           gued that the INA cannot constitutionally im-
In August 1952, Maria began working as a               pose a five-year continuous residency require-
live-in housekeeper in the United States, re-          ment on mothers of legitimate children while
siding in the United States during the week            requiring only a one-year requirement for
and returning on the weekends to Mexico,               mothers of illegitimate children. The district
where her husband and sons lived.                      court rejected this argument, concluding that
                                                       Cervantes-Nava was not a citizen.
   In 1957, Maria gave birth to Cervantes-
Nava in Mexico; he was the legitimate child of            The government filed a notice to enhance
Pedro Cervantes Juarez. Maria had been phy-            penalty, claiming that Cervantes-Nava’s DWI
sically present in the United States for eleven        conviction in Texas state court qualified as an
years but not for a period of five years after         aggravated felony conviction and justified an
reaching the age of fourteen. The parties              enhanced sentence under 18 U.S.C. § 16(b).
agree that her presence in the United States           The court rejected Cervantes-Nava’s argument
was short of the five years necessary for Cer-         that Texas DWI is not a crime of violence and
vantes-Nava to obtain derivative citizenship           enhanced the sentence by sixteen levels. This
under the INA.                                         yielded a guideline range of 46-57 months, and
                                                       the court sentenced him to 46 months’ impris-
   In 1965, Maria filed with the Immigration           onment.
and Naturalization Service (“INS”) an applica-
tion for Cervantes-Nava’s certification of citi-                            III.
zenship. The INS denied the application be-               We begin by examining the INA’s deriva-
cause Maria had not satisfied the residency re-        tive citizenship provisions.1 At the time of
quirements necessary to confer citizenship on          Cervantes’s birth,2 the parental residency
Cervantes-Nava. If Cervantes-Nava had been             requirements of the INA benefited illegitimate
an illegitimate child, he would have satisfied
the requirements for derivative citizenship.
                                                          1
                                                              The Fourteenth Amendment’s Citizenship
    In 1972, Cervantes-Nava became a lawful            Clause does not apply to Cervantes-Nava, because
permanent resident at the age of fifteen. In           he was not “born or naturalized in the United
1993, an immigration judge deported him to             States.” U.S. CONST. amend. XIV. Any right to
Mexico because of convictions of two theft             citizenship must be granted by Congress pursuant
counts and because of the absence of family            to its powers under U.S. CONST. art. 1, § 8, cl. 4
                                                       (granting Congress the power “To establish a uni-
ties to the area. Despite the deportation order,
                                                       form Rule of Naturalization”).
Cervantes-Nava returned to the United States.
                                                          2
                                                            The parties agree that the law in effect at the
                      II.                              time of Cervantes-Nava’s birth should govern his
   Cervantes-Nava stipulated to the facts un-          alien status. United States v. Gomez-Orozco, 188
derlying the charge of illegal re-entry into the       F.3d 422, 426-27 (7th Cir. 1999) (looking to law
                                                       at time of birth).

                                                   2
children to the detriment of legitimate children.          continuously before the child’s birth.4 In sum,
                                                           the statutory scheme established more lenient
    Citizen fathers and wed citizen mothers                residency requirements for unwed citizen
faced longer residency requirements than did               mothers than for married mothers, married
unwed citizen mothers, making it easier for                fathers, and unwed fathers.
illegitimate children born abroad to obtain cit-
izenship. Section 301(a)(7) of the INA gov-                                     IV.
erned generally the citizenship of children born              Cervantes-Nava argues that the government
outside the United States to a citizen parent              cannot carry its burden of proving his alien
and alien parent and required that the citizen             status by relying on the denial of citizenship
parent’s cumulative residency in the United                under immigration statutes that he claims are
States equal at least ten years and that the               unconstitutional. The premise of Cervantes-
parent spend five of those years in the United             Nava’s argument is correctSSalien status
States after age fourteen. 3 Section 309(c)                counts as an element of the illegal re-entry
governed the citizenship of illegitimate chil-             charge that the United States must prove be-
dren born abroad to citizen mothers and im-                yond a reasonable doubt.5 As proof, the
posed only the requirement that the citizen
mother reside in the United States for a year
                                                              4
                                                                INA § 309(c), 66 Stat. at 238-39 (codified at
                                                           8 U.S.C. § 1409(c)(1952)), established residency
                                                           requirements for the unwed citizen mothers of ille-
                                                           gitimate children born abroad:
   3
    INA § 301(a)(7), Pub. L. No. 414, 66 Stat.
163, 236 (June 27, 1952) (codified at 8 U.S.C.                [A] person born, on or after the effective
§ 1401(a)(7)(1952)), granted citizenship at birth to          date of this chapter [December 23, 1952],
                                                              outside the United States and out of wedlock
   [A] person born outside the geographical                   shall be held to have acquired at birth the
   limits of the United States or its outlying                nationality status of his mother, if the moth-
   possessions of parents one of whom is an                   er had the nationality of the United States at
   alien, and the other a citizen of the United               the time of such person’s birth, and if the
   States who, prior to the birth of such person,             mother had previously been physically pres-
   was physically present in the United States                ent in the United States or one of its outlying
   for a period or periods totaling not less than             possessions for a continuous period of one
   ten years, at least five of which were after               year.
   attaining the age of fourteen years . . . .
                                                           The relevant portions of § 309(c) are unchanged
Congress amended this statute effective in 1986.           and are codified at 8 U.S.C. § 1409(c) (1994).
Pub. L. No. 99-653, § 12, 100 Stat. 3655, 3657
                                                              5
(Nov. 14, 1986). T he current version tracks the                 The statute criminalizing illegal re-entry,
same language but requires that the citizen parent         8 U.S.C. § 1326, repeatedly uses the word “alien,”
spend a total of five years in the United States and       and the Ninth Circuit has inferred that the United
at least two years in the United States after age          States must prove alien status as an element.
fourteen. 8 U.S.C. § 1401(g) (1994). The current           United States v. Marin Cuevas, 147 F.3d 889, 894
version favors unwed mothers, but favors them less         (9th Cir. 1998). In dictum, we have listed alien
than did the version in effect at the time of Cer-         status as an element of the crime. United States v.
vantes-Nava’s birth.                                                                            (continued...)

                                                       3
government presented copies of the 1965 de-                 ship statutes are unconstitutional.7
nial of citizenship and the immigration judge’s
1993 order deporting Cervantes-Nava.6 Cer-                     A court reviewing the 1965 denial of citi-
vantes-Nava does not challenge a single fact                zenship or 1993 deportation order and finding
underlying these orders and concedes that the               the statute unconstitutional could correct the
derivative citizenship statues at the time of his           constitutional infirmity either by severing the
birth made him an alien rather than a citizen.              unconstitutional provisions or by striking
                                                            down the statute in its entirety.8 We examine
    We will assume, arguendo, the unconstitu-               these possibilities in turn.
tionality of the derivative citizenship statutes                                    A.
and will consider whether that assumed uncon-                  Theoretically, a court would have two sev-
stitutionality would disprove the alienage ele-             erance options to cure the equal protection
ment of the illegal re-entry conviction. That               problems of which Cervantes-Nava com-
hypothetical inquiry leads us to conclude that              plains.9 A court (1) could sever the stringent,
if a court found the derivative citizenship stat-
utes unconstitutional, it either would sever the
more lenient residency requirement for citizen                 7
                                                                Naturally, this means that we do not need to
mothers of illegitimate children or would strike            address the constitutional issue.
down the INA in its entirety. Neither remedy
                                                               8
would result in Cervantes-Nava’s being grant-                    Courts may not grant citizenship directly un-
ed citizenship. Because any judicial interpreta-            der their equitable powers. INS v. Pangilinan, 486
tion of the INA would classify him as an alien,             U.S. 875, 883-84 (1988) (“More fundamentally,
                                                            however, the power to make someone a citizen of
the government has met its burden of proving
                                                            the United States has not been conferred upon the
his alien status even if the derivative citizen-
                                                            federal courts, like mandamus or injunction, as one
                                                            of their generally applicable equitable powers.”);
                                                            Fedorenko v. United States, 449 U.S. 490, 517
                                                            (1981) (citation omitted) (“Once it has been deter-
   5
   (...continued)                                           mined that a person does not qualify for citizen-
Cabrera-Teran, 168 F.3d 141, 143-44 (5th Cir.               ship, . . . the district court has no discretion to
1999).                                                      ignore the defect and grant citizenship.”); United
                                                            States v. Ginsberg, 243 U.S. 472, 474 (1917) (“An
   6
     The government does not argue that these ad-           alien who seeks political rights as a member of this
ministrative decisions, standing alone, should es-          nation can rightfully obtain them only upon the
tablish Cervantes-Nava’s alien status. We decline           terms and conditions specified by Congress.
to decide the case on this ground. Giving the ad-           Courts are without the authority to sanction chang-
ministrative decisions such sweeping preclusive ef-         es or modifications.”). Thus, the only potential
fect would raise serious constitutional questions,          remedy in this case would be to grant citizenship
because neither the 1965 application for citizenship        indirectly through statutory constructionSSeither
nor the 1993 deportation proceeding included the            via severance or by striking down the statute
full range of constitutional rights available in a          altogether.
criminal trial. See United States v. Mendoza-
                                                               9
Lopez, 481 U.S. 828, 839 & n.15 (1987) (refusing                 Outside the immigration context, courts often
to grant preclusive effect to deportation hearing be-       sever parts of statutes to satisfy the Equal Protec-
cause aliens lacked opportunity for meaningful              tion Clause. E.g., Califano v. Westcott, 443 U.S.
judicial review).                                                                                  (continued...)

                                                        4
default parental residency requirement of
§ 301(a)(7) and expand citizenship to both                      Thus, if a court were to use severance to
legitimate and illegitimate children under                   cure the unconstitutionality, it would simply
§ 309(c) or (2) could sever the more lenient                 sever §309(c) and leave the rest of the statute
parental residency requirement of § 309(c) and               intact. Such a construction would not result in
apply the more stringent, default requirement                Cervantes Nava’s obtaining citizenship.
of § 301(a)(7) to both legitimate and illegiti-
mate children.10                                                                    B.
                                                                 The alternative to severance is to strike
   The first option, however, would not cure                 down the INA in its entirety. Because the
the constitutional defect, because severance of              Constitution does not grant Cervantes-Nava
§301(a)(7) would not suffice to eliminate the                citizenship, this option still would leave him
unconstitutional distinction between legitimate              without any putative source of citizenship and
and illegitimate children, given that §309(c)                would not affect his status as an alien.
specifically confers benefits on children born
“out of wedlock.” For these benefits to be                      Because there is no viable construction of
extended to legitimate children, we not only                 the INA under which Cervantes-Nava would
have to sever §301(a)(7), but also would have                be a citizen, the district court properly found
to rewrite §309(c). We decline to engage in                  that the government had proven his alien status
legislative draftsmanship of this sort.11                    beyond a reasonable doubt. Thus, the con-
                                                             viction must stand.
   9
     (...continued)                                                                 V.
76, 89-91 (1979). Courts have the power to sever                The district court, under 18 U.S.C. § 16(b),
parts of the INA as well. INS v. Chadha, 462 U.S.
                                                             enhanced Cervantes-Nava’s base offense level
919, 932 (1983) (severing one-house veto from re-
                                                             by sixteen for a Texas state DWI conviction.
mainder of the INA). It remains uncertain, how-
ever, whether courts may sever portions of the INA           We review statutory and guideline interpreta-
in a manner that expands citizenship. See Nguyen             tions de novo. United States v. Chapa-Garza,
v. INS, 533 U.S. 53, __, 121 S.Ct. 2053, 2065                243 F.3d 921, 924 (5th Cir. 2001).
(2001) (reserving the question whether courts may
sever portions of the INA to expand citizenship).               While this case was on appeal, we held in
                                                             another case that Texas DWI is not a crime of
   10
      A court sustaining an equal protection claim
has “two remedial alternatives: [It] may either de-
clare [the statute] a nullity and order that its bene-
                                                                11
fits not extend to the class that the legislature in-              (...continued)
tended to benefit, or it may extend the coverage of          most compatible with the statute’s original text and
the statute to include those who are aggrieved by            structure, because severance is based on the as-
the exclusion.” Heckler v. Mathews, 465 U.S.                 sumption that Congress would have enacted the
728, 738 (1984) (quoting Welsh v. United States,             remainder of the law absent the severed portion.
398 U.S. 333, 361 (1970) (Harlan, J., concur-                New York v. United States, 505 U.S. 144, 186
ring)).                                                      (1992). For example, we cannot sever portions of
                                                             the statute where “the provisions are inseparable by
   11
        Courts should select the severance option            virtue of their inherent character.” Carter v.
                                    (continued...)           Carter Coal Co., 298 U.S. 238, 322 (1936).

                                                         5
violence or an aggravated felony under
§ 16(b). Id. at 923-28. Changes in sentencing
law between sentencing and appeal that benefit
the defendant require us to reverse and remand
for resentencing. United States v. Miranda,
248 F.3d 434, 445 (5th Cir.), cert. denied, 122
S. Ct. 410 (2001). The district court should
recalculate Cervantes-Nava’s sentence without
the sixteen-level enhancement.

  The judgment of conviction is AFFIRMED.
The judgment of sentence is VACATED and
REMANDED for resentencing.




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