                                                                              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                           NOT FOR PUBLICATION                                OCT 07 2011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.




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      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.




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