## REVISED FEBRUARY 26, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 01-50200

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### R OBERTO 

### C ERVANTES 

### -N AVA



### ,

A / K / A R OBERTO N AVA C ERVANTES

, A / K / A R OBERTO C ERVANTES -N OVA

,



### Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________ February 4, 2002

Before J OLLY , S MITH , and B ENAVIDES

, Circuit Judges.

J ERRY E. S MITH , 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 into x icated (“DWI”) conviction. Because, in this criminal

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

Cervantes-Nava citizenship, we a ffirm the conviction despite his equal protecti on challenge.

Because this court recently has concluded that

Texas DWI is not an aggr avated 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

Ped ro Cervantes Juarez, a citizen of Mexico.

In August 1952, Maria began working as a

live-in hou sekeeper 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 was the legitimate child of

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

years but not for a period of five years after

r eaching the age of fourteen. The parties

agree that her presenc e in the United States

was short of the five years necessary for Cervantes-N a va to obtain derivative citizenship

under the INA.

In 1965, Maria fil e d with the Immigration

and Naturalization Service (“INS”) an application 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 illegitim ate child, he would have satisfied

the requirements for derivative citizenship.

In 1972, Cervantes-Nava became a lawful

permanent resident at the age o f fifteen. In

1993, an immigration judge deported him to

Mexico because of convic tions of two theft

counts and because o f t he absence of family

ties to 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 depor tati on but di sputed

his status as an

alien, challenging the constitutionality of the de rivative citizenship laws

that classified him as a non-citiz en. He argued that the INA cannot constitutionally impose a five-year continuous residency requirement on mothers of legit ima t e 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 g o vernment filed a notice to enhance

penalty, claiming that Cervantes-Nava’s DWI

conviction in Texas state court qualified as an

aggravated felony

co nviction and justified an

enhanced sentence under 18 U.S.C. § 1 6(b).

The court reject ed 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 e xamining the INA’s derivative citizenship provisions. 1 At the time of

Cervantes’s bi

r th, 2 the parental residency

requirements of the INA benefited illegitimate

1 Th e F ourteenth Amendment’s Citizenship

Clause does not apply to Cervantes-Nava, because

he was not “born or naturalized in the United

States.” U.S. C ONST

. a mend. XIV. Any right to

citizenship must be granted by Congress pursuant

to its powers under U.S. C ONST

. 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. U

nited States v. Gomez-Orozco

, 188

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

at time of birth).3

children to the detriment of legitimate children.

Citizen fathers and wed cit izen mothers

faced longer residency requireme nt s 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 require d that the ci ti zen

parent’s cumulative residency in t he United

States equal at leas t ten y ears and that the

parent spend five of those years in the United

States after age fourteen. 3 Section 309(c)

g o verned the citizenship of illegitimate children born abroad to citizen mo t hers and imp osed only the requirement that the citizen

mother reside in the United St ates for a y ear continuously before the child’s birth. 4 In sum,

the statutory scheme established more lenient

residency requi

rements for unwed citizen

mothers than for married mothers, married

fathers, and unwed fathers.

IV.

Cervantes-Nava argu es that the government

cannot carry

it s burden of proving his alien

status by relying on

t he denial of citizenship

under immigration statutes that he cl aims are

unconstitution al. The premise of CervantesNava’ s argument is correct 

### S S alien status

co unt s as an element of the illegal re-entry

charge that the Unit ed States must prove beyond a reasonable doub t

. 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 Unit ed States or its outlying

possessions of parents one of whom is an

alien, and the other a citizen o f the United

States who, prior to the birth of such person,

was physically present in the United States

for a period or periods totaling not less than

ten years, at least five of whic h 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) . T he 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 th e United States after age

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

version favors unwed mothers, but favors them less

than did the version in effec t 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] p er son born, on or after the effective

date of this chapter [Decemb er 23, 1952],

outside the United States and out of wedlock

shall be held to have acquire d at birth the

nationality status of his mother, if the mother had the nationality of the United States at

the time of such perso n’s birth, and if the

mother had previously been physically present in the United States or one of its outlying

possessions fo r a continuous period of one

year.

The relevant portions o f § 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 N inth Circuit has inferred that the United

States mu s t prove alien status as an element.

United States v. Marin Cuevas

, 147 F.3d 889, 894

(9th Cir . 1998). In d ictum

, we have listed alien

status as an element of the crime. U nited 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 derivativ e citizenship statutes

and will consider whether that assumed unconstitutionality would disprove the alienage element of the illegal r e-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 of illegitimate 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 derivat ive citizenship statutes are unconstitutional. 7

A court r eviewing the 1965 denial of citizenship or 1993 deportati on order and finding

t h e statute unconstitutional could correct the

constitutional inf

irmity either by severing the

unconstitutional provisions or by s t riking

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 protecti on

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 administrative decisions such sweeping preclusive effect would raise serious constitutional ques tions,

because neither the 1965 application for ci t izenship

nor the 1993 deportati on proceeding included the

full rang e of constitutional rights available in a

criminal trial. S ee United States v. MendozaLopez

, 481 U.S. 828, 839 & n.15 (1987) (refusing

to grant preclusive effect to deportation hearing bec ause 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 fund a mentally,

however, the power to make someone a citizen of

the United States has not been conferred upon the

federal courts, like mandamus or injunction, as one

of their generally applicable equit a ble powers.”);

Fedorenko v. United States

, 449 U.S. 490 , 517

(1981) (citation omitted) (“Once it has been determined that a pers on does not qualify for citizenship,

. . . the district court has no di scretion to

ignore the defect and grant citizenship.”); U nited

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.”). T hus, the only potential

remedy in this case would be to grant citizenship

indirectly through statutory construction SS either

via severance or by striking down the s tatute

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

legitimat e and illegitimate children under

§ 309(c) or (2) could sever the mo re lenient

parental residency requirement of § 309(c) and

apply the more stringent, default requirement

of § 301(a)(7) t o 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 elim inate the

unconstitutional distinction between le gitimat e

and illegitimate ch i ldren, given that §309(c)

specifically confers benefits on children born

“out of wedlock.” For these benefits to be

extended to legi

t imate 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 T hus, if a court were to use sever ance to

cure the uncons t it utionality, 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 st r ike

do w n the INA in its entirety. Because the

Constitution does n ot grant Cervantes-Nava

cit izenship, 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

t he INA under which Cervantes-Nava would

be a citizen, the district court properly found

that the government had proven his alien status

beyo n d 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

. U

nited 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. I NS 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. S ee 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 legisl ature intended to benefit, or it may extend the coverage of

the statute

to include those who are aggrieved by

the exclusion.” H

eckler v. Mathews

, 465 U.S.

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

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

11 Co ur ts should select the severance option

(continued...) 11 (...continued)

most compatible with the statute’s original text and

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

remainder of the law ab sent the severed portion.

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

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

the statute where “the provisions are inseparable by

virtue of their inherent character.” C arte r v.

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

v io lence or an aggravated felony under

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

law between sentencing and appeal that benefit

the defendant require us to reverse and remand

for resentencing. U

nited States v. Miranda

, 248 F.3d 434, 445 (5th Cir.), cert. denied

, 122

S. Ct. 410 (2001). The di stri ct court shoul d

recalculate Cervantes-Nav a’s sentence wit hout

the sixteen-level enhancement.

The judgment of conviction is AFFIRMED.

The judgm

ent of sentence is VACATED and

REMANDED for resentencing.