FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN JOSE MARTINEZ-MADERA, 

Petitioner, No. 06-73157

v. Agency No.  A14-647-093 ERIC HOLDER, JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 17, 2008—San Francisco, California

Filed March 16, 2009

Before: Stephen S. Trott and Sidney R. Thomas,

Circuit Judges, and Michael R. Hogan,* District Judge.

Opinion by Judge Trott;

Dissent by Judge Thomas

*The Honorable Michael R. Hogan, United States District Judge for the

District of Oregon, sitting by designation. 

3357
COUNSEL

Paul S. Jasper, Katherine Morgan, and Katherine A. Sullivan,

Leboeuf, Lamb, Greene & MacRae LLP, San Francisco, California, for the petitioner. 

Andrew Oliveira, U.S. Department of Justice, Washington,

D.C., for the respondent. 

MARTINEZ-MADERA v. HOLDER 3359
OPINION

TROTT, Circuit Judge: 

Is an unnaturalized person (1) born in Mexico, (2) to unwed

Mexican citizen parents, (3) whose mother later married in

Mexico a United States citizen, who treats that person as his

son, and (4) who with his family moves to the United States,

a citizen of the United States? The answer according to the

law is “no.”

I

OVERVIEW

Juan Jose Martinez-Madera petitions for review of a decision of the Board of Immigration Appeals (“BIA”), dismissing his appeal from a final order of deportation. Petitioner

contends he is a United States citizen by virtue of his stepfather’s United States citizenship and therefore is not deportable

under § 237(a)(2)(A)(iii) of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. We have jurisdiction under 8

U.S.C. § 1252(b)(5)(A), and must determine whether INA

§ 301(g), 8 U.S.C. § 1401(g) requires at least one of a person’s parents to be married to a U.S. citizen at the time of the

petitioner’s birth. We hold that it does, and so deny the petition.

II

BACKGROUND

Petitioner was born in Mexico in January 1953. His biological parents were both Mexican citizens and were never married. Six months after Petitioner was born, his mother

Thomasa Madera (“Madera”) met and began a relationship

with Jesus Gonzalez (“Gonzales”), a United States citizen.

3360 MARTINEZ-MADERA v. HOLDER
The couple married in February 1960 and, in December 1965

moved with Petitioner and his half-siblings to California. Petitioner has lived there ever since. The record does not contradict Petitioner’s assertion that since he was six months old,

Gonzalez has held Petitioner out and treated him as his son.

However, Gonzalez never legally adopted Petitioner. Petitioner’s mother became a naturalized citizen in 1995. By that

time, Petitioner was forty-three years old. There is no evidence Petitioner made any effort to become naturalized. 

In October 1996, Petitioner pled nolo contendere to

attempted murder under circumstances that involved domestic

violence with a firearm. He served an enhanced eight-year

criminal sentence. He was released on September 22, 2005.

On September 8, 2005, removal proceedings were initiated

against Petitioner on the ground that he was deportable as an

aggravated felon under INA § 237(a)(2)(A)(iii). After a merits

hearing, the Immigration Judge found that Petitioner was not

a U.S. citizen and that the government had proven by clear

and convincing evidence that he was deportable as an aggravated felon. 

On appeal to the BIA, Petitioner argued that he derived

U.S. citizenship when his stepfather, Gonzalez, allegedly

legitimated him as his son “in accordance with California’s

legitimation statute.” The BIA reviewed Petitioner’s case de

novo and dismissed his appeal. After reviewing the facts, the

relevant statutory framework, and our decisions in Scales v.

I.N.S., 232 F.3d 1159 (9th Cir. 2000), and Solis-Espinoza v.

Gonzales, 401 F.3d 1090 (9th Cir. 2005), the BIA concluded

that Petitioner had not carried his burden to establish U.S. citizenship. The BIA provided a thoughtful analysis of Petitioner’s argument: 

The court’s decision in Scales v. INS, involved a

child who was born to a non-citizen woman who was

married at the time of the child’s birth to a United

States citizen. That man accepted the child and acted

MARTINEZ-MADERA v. HOLDER 3361
as his father, even though he was not the biological

father of the child. The court observed in Scales that

while the “blood relationship” requirement in 8

U.S.C. § 1409 applied to an illegitimate child, the

requirement applied only to an illegitimate child and

that it did not apply to someone who was not born

“out of wedlock.” The court determined that the

respondent in that case was not illegitimate, since he

was “born to parents who were married at the time

of his birth,” even though the husband in that married couple was not the child’s biological father.

Thus, the court concluded that § 1409 did not apply

to him, and then determined that the respondent

qualified for United States citizenship under § 1401,

despite the lack of a blood relationship between the

child and the United States citizen parent, since the

statute did not require a blood relationship for citizenship, other than the requirement under § 1409

applicable only to a child born out of wedlock. The

court further recognized in Solis-Espinoza v. Gonzales, that there should be no distinction on the issue

of legitimation, where an individual such as the

respondent in the case before us, who was acknowledged and accepted into the family by the mother’s

United States citizen husband, and was otherwise

treated as if he were a legitimate child, and adopted

as such; and the situation in Scales v. INS, where the

father of an illegitimate child acknowledges and with

the consent of the United States citizen spouse,

brings the child into the family; and concluded that

public policy dictates that in both instances such

child is deemed for all purposes legitimate from the

time of its birth. 

However, notwithstanding the foregoing discussion, we find the respondent does not benefit from

the Ninth Circuit decisions in either Solis-Espinoza

v. Gonzales, or Scales v. INS. As noted above, in

3362 MARTINEZ-MADERA v. HOLDER
both Solis-Espinoza and Scales, the court found that

there was an existing marital relationship between

one of the biological parents and the stepparent at

the time the child was born so that the child was not

considered to be illegitimate or born out of wedlock

and was therefore not barred from establishing citizenship under 8 U.S.C. § 1401(g). In contrast, in the

respondent’s case, the respondent’s natural parents

were both unmarried and Mexican citizens at the

time of the respondent’s birth, and the respondent’s

mother did not marry his United States citizen stepfather until 1960 seven years after he was born. Consequently, he may not benefit from those decisions.

(Internal citations omitted). The BIA thus concluded that Petitioner was not entitled to derivative citizenship and was therefore removable as an aggravated felon under INA

§ 237(a)(2)(A)(iii) and 8 U.S.C. § 1101(a)(43)(U). We agree.

III

DISCUSSION

Standard of Review 

We review de novo a claim of citizenship. Solis-Espinoza,

401 F.3d at 1092. Because the BIA’s review was de novo, our

“review is limited to the decision of the BIA.” Scales, 232

F.3d at 1162. 

Analysis 

“There are ‘two sources of citizenship, and two only: birth

and naturalization.’ ” Miller v. Albright, 523 U.S. 420, 423

(1998) (citing United States v. Wong Kim Ark, 169 U.S. 649,

702 (1898). “Evidence of foreign birth . . . gives rise to a

rebuttable presumption of alienage, and the burden then shifts

to the petitioner to prove citizenship.” Scales, 232 F.3d at

MARTINEZ-MADERA v. HOLDER 3363
1163. “ ‘The applicable law for transmitting citizenship to a

child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child’s birth.’ ” Id. at

1162 (citing United States v. Viramontes-Alvarado, 149 F.3d

912, 915 (9th Cir. 1998)) (quoting Ablang v. Reno, 52 F.3d

801, 803 (9th Cir. 1995)) (quoting Runnett v. Shultz, 901 F.2d

782, 783 (9th Cir. 1990)). 

[1] In both Scales and Solis-Espinoza,

1

 one of the petition1The text of 8 U.S.C. §§ 1401 and 1409 was not amended in any relevant way between 1952 and 1986. Thus, we interpreted the same version

of these sections in Scales, where the petitioner was born in 1977, and in

Solis-Espinoza, where the petitioner was born in 1967. Compare 232 F.3d

at 1161 and 401 F.3d at 1091. 

Section 1401(a)(7), Nationals and Citizens of the United States at birth,

provides in relevant part as follows: 

(a) The following shall be nationals and citizens of the United

States at birth: 

. . . [paragraphs (1) through (6)] 

(7) A person born outside the geographical limits of the

United States . . . of parents one of whom is an alien, and the

other a citizen of 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, . . . .

Section 1409 provides in relevant part: 

Children born out of wedlock

(a) The provisions of paragraph (c), (d), (e), and (g) of section

1401 of this title, and of paragraph (2) of section 1408 of this

title, shall apply as of the date of birth to a person born out of

wedlock if— 

(1) a blood relationship between the person and the father is

established by clear and convincing evidence, 

(2) the father had the nationality of the United States at the

time of the person’s birth, 

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches

the age of 18 years, and 

3364 MARTINEZ-MADERA v. HOLDER
er’s biological parents was married to a U.S. citizen at the

time of the petitioner’s birth. See Scales, 232 F.3d at 1161-62

(biological mother married to citizen stepfather at time of

petitioner’s birth); Solis-Espinoza, 401 F.3d at 1091 (biological father married to citizen stepmother at time of petitioner’s

birth). We have not yet addressed the scenario where neither

of the petitioner’s parents were citizens at the time of his

birth, and, as here, the petitioner claims to have derived citizenship under § 1401 when, subsequent to the petitioner’s

birth, his or her biological non-citizen parent simply married

a U.S. citizen. 

As recognized by the BIA, Solis-Espinoza and Scales, upon

which Petitioner relies, are manifestly distinguishable and

thus not controlling. See 401 F.3d 1090; 232 F.3d 1159. In

each case, the person claiming citizenship was born into a

marital relationship between a citizen and an alien. In contrast, Martinez-Madera was born in Mexico of unwed Mexican parents, neither of whom was married to a United States

citizen at the time of Martinez-Madera’s birth. 

[2] We agree with the Fifth Circuit’s resolution of a case

with similar facts. In Marquez-Marquez v. Gonzales, 455 F.3d

548 (5th Cir. 2006), that court held that a person born of

unwed Mexican parents in Mexico did not become a United

States citizen by virtue of her later adoption by a United

States citizen, who was married to neither of her parents at the

(4) while the person is under the age of 18 year— 

(A) the person is legitimated under the law of the person’s

residence or domicile, 

(B) the father acknowledges paternity of the person in writing under oath, or 

(C) the paternity of the person is established by adjudication

of a competent court. 

8 U.S.C. § 1409(a). 

MARTINEZ-MADERA v. HOLDER 3365
time of her birth. Our sister circuit properly distinguished

Scales and Solis-Espinoza, and quoted the following from an

unpublished decision of our own circuit: “Crider was born of

parents neither of whom were or are citizens of the United

States. He could not have been a citizen ‘at birth.’ There is no

conceivable way to place him within the reach of § [1401].”

Id. at 558-559, & n.22 (quoting Crider v. Ashcroft, 74 Fed.

Appx. 729-30 (9th Cir. 2003)) (unpublished) (citing I.N.S. v.

Pangilinan, 486 U.S. 875 (1988)). 

Petitioner relies on California’s legitimation statute, Cal.

Civ. Code § 230 (1872) (since repealed by Stats. 1975, c.

1244, p. 3196, § 8), to support his argument, claiming that

under Solis-Espinoza, “he, as a legitimate son, was not ‘born

out of wedlock,’ ” and that because he was not ‘born out of

wedlock,’ Scales and Solis-Espinoza mandate that he deserves

citizenship from his stepfather, Gonzales. We find this argument unconvincing, for two reasons. 

[3] First, former Cal. Civ. Code § 230 applies only to

fathers legitimating their illegitimate biological children. The

statute does not apply to stepfathers informally adopting stepchildren. How do we know this? Out of the mouth of the California Supreme Court itself. In Blythe v. Ayres, 31 P.915 (Cal.

1892), that court held that former Cal. Civ. Code § 230 was

a legitimization statute relating to persons “where the blood

relation exists.” Id. at 916. See also In re Lund’s Estate, 159

P.2d 643, 654 (Cal. 1945) (“[T]here is a natural and basic difference between the adoption of blood strangers and the adoption by legitimation of a natural child.” (citing Blythe, 31 P.

915)). 

Second, Petitioner’s authority does not hold that an alien

parent who is unmarried at the time of the birth of a person

who later claims citizenship may be deemed to have been

married to a citizen at the time of birth. 

[4] As for § 1409, that path to citizenship would require a

blood relationship between Petitioner and Gonzales, which

3366 MARTINEZ-MADERA v. HOLDER
does not exist. As we said in Scales, “Moreover, § 1409

clearly was enacted ‘at least in part, to ensure that a person

born out of wedlock who claims citizenship by birth actually

shares a blood relationship with an American citizen.’ ” 232

F.3d at 1164 (quoting Miller, 523 U.S. at 435) (emphasis

added). See also Tuan Anh Nguyen v. I.N.S., 533 U.S. 53

(2001) (describing § 1409 as a statute requiring a blood relationship, either by birth or by legitimation). Furthermore, the

Board’s determination to this effect is entitled to Chevron deference. Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984). 

The dissent claims that “one would be hard-pressed to

come up with a logical reason” to explain this result. Beyond

those reasons articulated throughout this opinion, we would

add only that one would be even more “hard-pressed” to come

up with a logical reason to explain the dissent’s desired result

— that a person born out of the country to two unwed noncitizen parents can derive citizenship “by birth” from a subsequent U.S. citizen stepfather — is not an untenable and paradoxical reading of § 1401’s requirement that one be born in

wedlock to a U.S. citizen to derive citizenship from that parent. 

IV

CONCLUSION

[5] The foregoing leads to the unsurprising conclusion that

Petitioner, born to two unwed non-citizen parents, cannot be

deemed “born in wedlock” under § 1401. And, because there

is no blood relation between Petitioner and Gonzalez, his citizen stepfather, he cannot meet his burden to prove citizenship

under § 1409. See Scales, 232 F.3d at 1164; Solis-Espinoza,

401 F.3d at 1093. Finally, because it is undisputed that he was

convicted of attempted murder, we conclude that Petitioner

is removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and

1101(a)(43)(U). 

MARTINEZ-MADERA v. HOLDER 3367
As in the case of Tuan Anh Nguyen, Petitioner’s blocked

path to citizenship is “due to the serious nature of his criminal

offense[ ], not . . . to any supposed rigidity or harshness in the

citizenship laws.” Id. at 71. Among other options, the naturalization door was open to him, but he did not elect to pass

through it, choosing instead serious antisocial conduct that led

him to prison. 

Petition DENIED.

THOMAS, Circuit Judge, dissenting: 

The majority concludes that a child raised from the age of

six months by a non-biological citizen father is not a citizen.

Our case law, the governing federal and state statutes, and a

proper application of the principles of cooperative federalism

compel a different conclusion. Thus, I must respectfully dissent. 

I

Juan Jose Martinez-Madera moved to the United States

when he was six years old and has now lived here for over

forty years. Martinez-Madera’s mother began a relationship

with Jesus Gonzales, the man Martinez-Madera regards as his

father, when Martinez-Madera was an infant. The IJ found it

undisputed that “since [Martinez-Madera]’s age of 6 months

Mr. Gonzales . . . has held out that [Martinez-Madera] is to

be his son and addresses him and adopted him into the family

. . . . He has always held [Martinez-Madera] out to be a son

and part of the family.” Martinez-Madera’s parents had six

biological children together between 1954 and 1966. They

married in 1960. Throughout his entire childhood, MartinezMadera lived with his parents and siblings as a family unit.

Gonzales provided for the entire family and publicly held

himself out as Martinez-Madera’s father. 

3368 MARTINEZ-MADERA v. HOLDER
Now, Martinez-Madera claims derivative citizenship

through Gonzales, a United States citizen. He cites our cases

Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), and SolisEspinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), which

establish that a person of foreign birth may derive citizenship

through a non-biological U.S. citizen parent under 8 U.S.C.

§ 1401 (1964), so long as the person was not born “out of

wedlock.” In both Scales and Solis-Espinoza, we looked to

state law to determine whether the person was born in or out

of wedlock. 

Under California law, Martinez-Madera was clearly born in

wedlock and thus derives United States citizenship from his

father. The majority ignores the precedent set by Scales and

Solis-Espinoza and in doing so contradicts established public

policy and an express provision of the Immigration and

Nationality Act (“INA”). 

II

In Scales, we first had the opportunity to consider whether

a person of foreign birth may derive U.S. citizenship through

a non-biological parent. We examined the two relevant statutory provisions — 8 U.S.C. § 1401 and 8 U.S.C. § 1409 —

and held that § 1401 does not “require a blood relationship

between a person born outside the United States and his U.S.

citizen parent.” 232 F.3d at 1161. We observed that § 1401

applies if the person claiming citizenship was born “in wedlock,” while § 1409 applies if the person was born “out of

wedlock.” Thus, we proceeded to determine whether the petitioner was born in or out of wedlock. To make this determination, we looked to the relevant state law of the petitioner’s

domicile. Indeed, we recognized that the INA provides that a

child can be “legitimated under the law of the child’s residence or domicile.” Scales, 232 F.3d at 1163 (quoting 8

U.S.C. § 1101(c)(1) (1976)). We noted that the petitioner and

his family had resided in the state of Washington since the

petitioner was 11 years old and that Washington state law proMARTINEZ-MADERA v. HOLDER 3369
vided at the time that “[a] man is presumed to be the natural

father of a child if: (a) He and the child’s natural mother are

or have been married to each other and the child is born during the marriage.” Id. at 1163 and n.7 (quoting Wash. Rev.

Code § 26.26.040(1)(a)). Applying this law, we concluded

that the petitioner “is ‘legitimate’ by virtue of his parents

being married at the time of his birth,” id. at 1164, and held

“that Petitioner acquired citizenship at birth under § 1401,” id.

at 1166. 

In Solis-Espinoza, we confronted “a situation much like

[that of Scales], but with the genders of the parents reversed.”

401 F.3d at 1093. As in Scales, we looked to state law to

determine whether the petitioner was born in or out of wedlock. We observed that “[t]he relevant state of domicile for

Solis-Espinoza and his father was California,” id. at 1093, and

thus applied a California state law in effect at the time. That

law provided:

The father of an illegitimate child, by publicly

acknowledging it as his own, receiving it as such,

with the consent of his wife, if he is married, into his

family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child

is thereupon deemed for all purposes legitimate from

the time of its birth. 

Cal. Civ. Code § 230 (1872). Applying that statute, we held:

“Under the law of California at the relevant time . . . SolisEspinoza was ‘for all purposes legitimate’ from the time of

his birth. Since he was not ‘born out of wedlock,’ under our

decision in Scales . . . he is entitled to be recognized as a citizen under § 1401.” Solis-Espinoza, 401 F.3d at 1094. 

Section 230 applies to Martinez-Madera as well. MartinezMadera’s non-biological father publicly acknowledged and

treated Martinez-Madera as his own son since the age of six

months. Section 230 therefore requires this Court to treat

3370 MARTINEZ-MADERA v. HOLDER
Martinez-Madera as legitimate from the time of his birth.

Thus, § 1409 does not apply and Martinez-Madera derives

United States citizenship through his non-biological father

pursuant to § 1401. 

The majority attempts to distinguish Scales and SolisEspinoza on the ground that Martinez-Madera was born “out

of wedlock” because his parents were not married at the time

of his birth.1 However, this difference does not vitiate the

requirement of Scales and Solis-Espinoza that we look to state

law to determine whether the petitioner is legitimately the

child of the citizen parent. 

III

In looking to state law, Scales and Solis-Espinoza adhered

to an express provision of the INA. We have previously held:

Legitimacy is a legal concept, and the law determines whether and under what circumstances a child

it has denominated illegitimate may become legitimate. The Immigration and Nationality Act provides

that a child who is unmarried and under twenty-one

years of age can be legitimated under the law of the

child’s residence or domicile, or under the law of the

father’s residence or domicile, whether in or outside

the United States, if such legitimation takes place

before the child reaches the age of eighteen years

and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.

Burgess v. Meese, 802 F.2d 338, 340 (9th Cir. 1986) (empha1The majority cites a Fifth Circuit case in support of its conclusion. See

Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006). Aside from

being non-binding on this Court, Marquez-Marquez does not explicitly

evaluate whether Marquez-Marquez was born into wedlock under the relevant state law. 

MARTINEZ-MADERA v. HOLDER 3371
sis added) (citing 8 U.S.C. § 1101(b)(1)(C) (1983)); see also

Scales, 232 F.3d at 1163 (quoting an earlier version of the

same statute, 8 U.S.C. § 1101(c)(1) (1976), containing identical language). 

Congress has expressly provided that a child who is considered “legitimated” under applicable state law is also to be

considered “legitimated” for the purposes of immigration law.

The majority ignores this express provision. 

IV

Denying Martinez-Madera’s derivative citizenship claim

also contravenes the public policy considerations we have traditionally respected in such cases. 

First, as we observed in Solis-Espinoza: “Public policy supports recognition and maintenance of a family unit. The INA

was intended to keep families together. It should be construed

in favor of family units and the acceptance of responsibility

by family members.” 401 F.3d at 1094. See also H.R. Rep.

85-1199, pt. 2, reprinted in 1957 U.S.C.C.A.N. 2016, 2021

(the INA “implements the underlying intentions of our immigration laws regarding the preservation of the family unit.”).

Martinez-Madera lived with his parents and siblings as a family unit throughout his entire childhood and has resided in the

United States for over forty years. To deny him derivative citizenship and deport him to Mexico is unjust, illogical, and

does nothing to further U.S. immigration policy. 

Second, the majority’s interpretation violates the principles

of cooperative federalism. “Family relations are a traditional

area of state concern.” Moore v. Sims, 442 U.S. 415,

435(1979); see also H.C. ex rel. Gordon v. Koppel, 203 F.3d

610, 613 (9th Cir. 2000) (noting the importance of the state

interest in family relations). Federal courts have no general

jurisdiction over domestic relations, Ankenbrandt v. Richards,

504 U.S. 689, 697-701(1992), while “state courts have a spe3372 MARTINEZ-MADERA v. HOLDER
cial expertise and experience” in family relations, H.C., 203

at 613 (citing Hisquierdo v. Hisquierdo, 439 U.S. 572, 581

(1979)). 

The best method of advancing these two policy objectives

is to hold—consistent with the INA, Solis-Espinoza, and

Scales—that state law governs determinations of legitimacy.

V

For all of these reasons, I would hold that courts should

look to state law to determine whether a person may properly

be considered “legitimate” or “born in wedlock” for the purposes of § 1401. Applying state law, I would hold that

Martinez-Madera is “for all purposes legitimate” under Cal.

Civ. Code § 2302 and is entitled to derivative citizenship

under § 1401. 

Because the majority has concluded otherwise, I must

respectfully dissent.

2The majority additionally argues that even if California law should

determine whether Martinez-Madera was born out of wedlock, he has not

met the requirements of Cal. Civ. Code § 230 because that statute is applicable only to biological fathers. This argument relies on dicta from an

1892 California Supreme Court case. Although we normally follow a state

supreme court’s interpretation of a state statute, California caselaw simply

does not answer the question of whether Cal. Civ. Code § 230 permits a

step-father to legitimize his wife’s biological child. Absent clear direction

from the California Supreme Court, which we do not have here, there is

no compelling reason to interpret the California statute in the manner suggested by the majority. 

MARTINEZ-MADERA v. HOLDER 3373