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,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The district court found Roberto Cervantes-Nava guilty of illegally re-entering the

United States in violation of 8 U.S.C. § 1326

and imposed an increase of sixteen in his base

offense level for a driving while intoxicated

(“DWI”) conviction. Because, in this criminal

case, the federal courts cannot alter the derivative citizenship requirements of the Immigration and Nationality Act (“INA”) to grant

Cervantes-Nava citizenship, we affirm the conviction despite his equal protection challenge.

Because this court recently has concluded that

Texas DWI is not an aggravated felony, we

vacate the sentence and remand for resentencing.
2

I.

Maria de Cervantes (“Maria”) was born in

the United States in 1923 and lived there until

moving to Mexico at age eleven. She married

Pedro Cervantes Juarez, a citizen of Mexico.

In August 1952, Maria began working as a

live-in housekeeper in the United States, residing in the United States during the week

and returning on the weekends to Mexico,

where her husband and sons lived.

In 1957, Maria gave birth to CervantesNava in Mexico; he wasthe legitimate child of

Pedro CervantesJuarez. Maria had been physically present in the United States for eleven

years but not for a period of five years after

reaching the age of fourteen. The parties

agree that her presence in the United States

was short of the five years necessary for Cervantes-Nava to obtain derivative citizenship

under the INA.

In 1965, Maria filed with the Immigration

and NaturalizationService (“INS”) anapplication for Cervantes-Nava’s certification of citizenship. The INS denied the application because Maria had not satisfied the residency requirements necessary to confer citizenship on

Cervantes-Nava. If Cervantes-Nava had been

an illegitimate child, he would have satisfied

the requirements for derivative citizenship.

In 1972, Cervantes-Nava became a lawful

permanent resident at the age of fifteen. In

1993, an immigration judge deported him to

Mexico because of convictions of two theft

counts and because of the absence of family

tiesto the area. Despite the deportation order,

Cervantes-Nava returned to the United States.

II.

Cervantes-Nava stipulated to the facts underlying the charge of illegal re-entry into the

United States after deportation but disputed

his status as an alien, challenging the constitutionality of the derivative citizenship laws

that classified him as a non-citizen. He argued that the INA cannot constitutionally impose a five-year continuousresidency requirement on mothers of legitimate children while

requiring only a one-year requirement for

mothers of illegitimate children. The district

court rejected this argument, concluding that

Cervantes-Nava was not a citizen.

The government filed a notice to enhance

penalty, claiming that Cervantes-Nava’s DWI

conviction in Texas state court qualified as an

aggravated felony conviction and justified an

enhanced sentence under 18 U.S.C. § 16(b).

The courtrejected Cervantes-Nava’s argument

that Texas DWI is not a crime of violence and

enhanced the sentence by sixteen levels. This

yielded a guideline range of 46-57 months, and

the court sentenced him to 46 months’ imprisonment.

III.

We begin by examining the INA’s derivative citizenship provisions.1

 At the time of

Cervantes’s birth,2the parental residency

requirements of the INA benefited illegitimate

1 The Fourteenth Amendment’s Citizenship

Clause does not apply to Cervantes-Nava, because

he was not “born or naturalized in the United

States.” U.S. CONST. amend. XIV. Any right to

citizenship must be granted by Congress pursuant

to its powers under U.S. CONST. art. 1, § 8, cl. 4

(granting Congress the power “To establish a uniform Rule of Naturalization”).

2

 The parties agree that the law in effect at the

time of Cervantes-Nava’s birth should govern his

alien status. United States v. Gomez-Orozco, 188

F.3d 422, 426-27 (7th Cir. 1999) (looking to law

at time of birth).
3

childrento the detriment oflegitimate children.

Citizen fathers and wed citizen mothers

faced longer residency requirements than did

unwed citizen mothers, making it easier for

illegitimate children born abroad to obtain citizenship. Section 301(a)(7) of the INA governed generally the citizenship of children born

outside the United States to a citizen parent

and alien parent and required that the citizen

parent’s cumulative residency in the United

States equal at least ten years and that the

parent spend five of those years in the United

States after age fourteen.3 Section 309(c)

governed the citizenship of illegitimate children born abroad to citizen mothers and imposed only the requirement that the citizen

mother reside in the United States for a year

continuously before the child’s birth.4 In sum,

the statutory scheme established more lenient

residency requirements for unwed citizen

mothers than for married mothers, married

fathers, and unwed fathers.

IV.

Cervantes-Nava argues that the government

cannot carry its burden of proving his alien

status by relying on the denial of citizenship

under immigration statutes that he claims are

unconstitutional. The premise of CervantesNava’s argument is correctSSalien status

counts as an element of the illegal re-entry

charge that the United States must prove beyond a reasonable doubt.

5

 As proof, the

3

INA § 301(a)(7), Pub. L. No. 414, 66 Stat.

163, 236 (June 27, 1952) (codified at 8 U.S.C.

§ 1401(a)(7)(1952)), granted citizenship at birth to

[A] person born outside the geographical

limits of the United States or its outlying

possessions of parents one of whom is an

alien, and the other a citizen of the United

States who, prior to the birth ofsuch person,

was physically present in the United States

for a period or periods totaling not less than

ten years, at least five of which were after

attaining the age of fourteen years . . . .

Congress amended this statute effective in 1986.

Pub. L. No. 99-653, § 12, 100 Stat. 3655, 3657

(Nov. 14, 1986). The current version tracks the

same language but requires that the citizen parent

spend a total of five years in the United States and

at least two years in the United States after age

fourteen. 8 U.S.C. § 1401(g) (1994). The current

version favors unwedmothers, but favorsthemless

than did the version in effect at the time of Cervantes-Nava’s birth.

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 illegitimate children born abroad:

[A] person born, on or after the effective

date of this chapter [December 23, 1952],

outside theUnited States and out of wedlock

shall be held to have acquired at birth the

nationality status of his mother, 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 theUnited States or one of its outlying

possessions for a continuous period of one

year.

The relevant portions of § 309(c) are unchanged

and are codified at 8 U.S.C. § 1409(c) (1994).

5 The statute criminalizing illegal re-entry,

8 U.S.C. § 1326, repeatedly uses the word “alien,”

and the Ninth Circuit has inferred that the United

States must prove alien status as an element.

United States v. Marin Cuevas, 147 F.3d 889, 894

(9th Cir. 1998). In dictum, we have listed alien

status as an element of the crime. United States v.

(continued...)
4

government presented copies of the 1965 denial of citizenship and the immigration judge’s

1993 order deporting Cervantes-Nava.6 Cervantes-Nava does not challenge a single fact

underlying these orders and concedes that the

derivative citizenship statues at the time of his

birth made him an alien rather than a citizen.

We will assume, arguendo, the unconstitutionality of the derivative citizenship statutes

and willconsider whetherthat assumed unconstitutionality would disprove the alienage element of the illegal re-entry conviction. That

hypothetical inquiry leads us to conclude that

if a court found the derivative citizenship statutes unconstitutional, it either would sever the

more lenient residency requirement for citizen

mothers ofillegitimate children or would strike

down the INA in its entirety. Neither remedy

would result in Cervantes-Nava’s being granted citizenship. Because any judicial interpretation of the INA would classify him as an alien,

the government has met its burden of proving

his alien status even if the derivative citizenship statutes are unconstitutional.7

A court reviewing the 1965 denial of citizenship or 1993 deportation order and finding

the statute unconstitutional could correct the

constitutional infirmity either by severing the

unconstitutional provisions or by striking

down the statute in its entirety.8 We examine

these possibilities in turn.

A.

Theoretically, a court would have two severance options to cure the equal protection

problems of which Cervantes-Nava complains.9

 A court (1) could sever the stringent,

5

(...continued)

Cabrera-Teran, 168 F.3d 141, 143-44 (5th Cir.

1999).

6 The government does not argue that these administrative decisions, standing alone, should establish Cervantes-Nava’s alien status. We decline

to decide the case on this ground. Giving the administrativedecisionssuch sweeping preclusive effect would raise serious constitutional questions,

becauseneitherthe1965 application for citizenship

nor the 1993 deportation proceeding included the

full range of constitutional rights available in a

criminal trial. See United States v. MendozaLopez, 481 U.S. 828, 839 & n.15 (1987) (refusing

to grant preclusive effect to deportation hearing because aliens lacked opportunity for meaningful

judicial review).

7 Naturally, this means that we do not need to

address the constitutional issue.

8

 Courts may not grant citizenship directly under their equitable powers. INS v. Pangilinan, 486

U.S. 875, 883-84 (1988) (“More fundamentally,

however, the power to make someone a citizen of

the United States has not been conferred upon the

federal courts, likemandamus 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 determined that a person does not qualify for citizenship, . . . the district court has no discretion to

ignore the defect and grant citizenship.”); United

States v. Ginsberg, 243 U.S. 472, 474 (1917) (“An

alien who seeks political rights as a member of this

nation can rightfully obtain them only upon the

terms and conditions specified by Congress.

Courts are without the authority to sanction changes or modifications.”). Thus, the only potential

remedy in this case would be to grant citizenship

indirectly through statutory constructionSSeither

via severance or by striking down the statute

altogether.

9 Outside the immigration context, courts often

sever parts of statutes to satisfy the Equal Protection Clause. E.g., Califano v. Westcott, 443 U.S.

(continued...)
5

default parental residency requirement of

§ 301(a)(7) and expand citizenship to both

legitimate and illegitimate children under

§ 309(c) or (2) could sever the more lenient

parentalresidencyrequirement of § 309(c) and

apply the more stringent, default requirement

of § 301(a)(7) to both legitimate and illegitimate children.10

 

The first option, however, would not cure

the constitutional defect, because severance of

§301(a)(7) would not suffice to eliminate the

unconstitutionaldistinctionbetweenlegitimate

and illegitimate children, given that §309(c)

specifically confers benefits on children born

“out of wedlock.” For these benefits to be

extended to legitimate children, we not only

have to sever §301(a)(7), but also would have

to rewrite §309(c). We decline to engage in

legislative draftsmanship of this sort.11

Thus, if a court were to use severance to

cure the unconstitutionality, it would simply

sever §309(c) and leave the rest of the statute

intact. Such a construction would not result in

Cervantes Nava’s obtaining citizenship.

B.

The alternative to severance is to strike

down the INA in its entirety. Because the

Constitution does not grant Cervantes-Nava

citizenship, this option still would leave him

without any putative source of citizenship and

would not affect his status as an alien. 

Because there is no viable construction of

the INA under which Cervantes-Nava would

be a citizen, the district court properly found

that the government had proven his alien status

beyond a reasonable doubt. Thus, the conviction must stand. 

V.

The district court, under 18 U.S.C. § 16(b),

enhanced Cervantes-Nava’s base offense level

by sixteen for a Texas state DWI conviction.

We review statutory and guideline interpretations de novo. United States v. Chapa-Garza,

243 F.3d 921, 924 (5th Cir. 2001). 

While this case was on appeal, we held in

another case that Texas DWI is not a crime of

9

(...continued)

76, 89-91 (1979). Courts have the power to sever

parts of the INA as well. INS v. Chadha, 462 U.S.

919, 932 (1983) (severing one-house veto from remainder of the INA). It remains uncertain, however, whether courts may sever portions of the INA

in a manner that expands citizenship. See Nguyen

v. INS, 533 U.S. 53, __, 121 S.Ct. 2053, 2065

(2001) (reserving the question whether courts may

sever portions of the INA to expand citizenship). 

10 A court sustaining an equal protection claim

has “two remedial alternatives: [It] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of

the statute to include those who are aggrieved by

the exclusion.” Heckler v. Mathews, 465 U.S.

728, 738 (1984) (quoting Welsh v. United States,

398 U.S. 333, 361 (1970) (Harlan, J., concurring)).

11 Courts should select the severance option

(continued...)

11(...continued)

most compatiblewith the statute’s original text and

structure, because severance is based on the assumption that Congress would have enacted the

remainder of the law absent the severed portion.

New York v. United States, 505 U.S. 144, 186

(1992). For example, we cannot sever portions of

the statutewhere “theprovisions are inseparableby

virtue of their inherent character.” Carter v.

Carter Coal Co., 298 U.S. 238, 322 (1936).
6

violence or an aggravated felony under

§ 16(b). Id. at 923-28. Changes in sentencing

law between sentencing and appealthat benefit

the defendant require usto 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

recalculateCervantes-Nava’s sentence without

the sixteen-level enhancement.

The judgment ofconvictionisAFFIRMED.

The judgment of sentence is VACATED and

REMANDED for resentencing.