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Viramontes-Alvarado; U.S. v.

Facts

Appellant alien was deported in 1995 and was later discovered by a Border Patrol agent in jail, where he admitted to illegal reentry. He contended that he was not an alien because he was the illegitimate son of a U.S. citizen father. The court found that while the father testified to paternity, he had not legitimated the appellant under California law, which required public acknowledgment and cohabitation. The district court sentenced the appellant based on an aggravated felony conviction, which was later vacated.

Viramontes-Alvarado contends that he is not an alien because he is the illegitimate son of an American citizen father.

Issue

Whether the appellant was a U.S. citizen by virtue of being the illegitimate son of a U.S. citizen father, and whether the sentence enhancement for illegal reentry was appropriate.

The issue at trial was whether Viramontes-Alvarado was an American citizen by his birth to an American citizen father, Benjamin 'Tony' Viramontes, and therefore could not be guilty of illegal reentry.

Rule

Under California law, legitimation of an illegitimate child requires the father to publicly acknowledge the child and to receive the child into his home.

That law, as it applies to this case, provides that legitimation must be made by a father by receiving the child into his home and openly holding out the child as his natural child.

Analysis

The court applied California's legitimation requirements, determining that the appellant's father had not met the necessary conditions for legitimation. The father had not publicly acknowledged the appellant in California nor had he lived with him, which led to the conclusion that the appellant could not claim citizenship through his father.

In light of California case law, we noted that to satisfy 230, 'the child must reside with the father.' Kaliski v. District Dir., I.N.S., 620 F.2d 214, 216 (9th Cir. 1980).

Conclusion

The court affirmed the conviction for illegal reentry but vacated the sentence due to the erroneous application of the aggravated felony enhancement.

We affirm the conviction, but vacate the sentence as not in compliance with United States v. Fuentes-Barahona, 111 F.3d 651 (9th Cir. 1997) (per curiam).

Who won?

The United States prevailed in the case as the court upheld the conviction for illegal reentry, finding that the appellant did not meet the criteria for citizenship.

The government presented sufficient evidence for the jury to conclude that the allegations of legitimation presented by Viramontes-Alvarado simply did not satisfy California's legitimation statute.

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