United States v. Cervantes-Nava

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 Cervan-
tes-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 deriva-
tive citizenship requirements of the Immigra-
tion and Nationality Act (“INA”) to grant
Cervantes-Nava citizenship, we affirm the con-
viction 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 resentenc-
ing.

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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, re-
siding 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 Cervantes-
Nava in Mexico; he was the legitimate child of
Pedro Cervantes Juarez. Maria had been phy-
sically 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 Cer-
vantes-Nava to obtain derivative citizenship
under the INA.
In 1965, Maria filed with the Immigration
and Naturalization Service (“INS”) an applica-
tion for Cervantes-Nava’s certification of citi-
zenship. The INS denied the application be-
cause Maria had not satisfied the residency re-
quirements 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
ties to the area. Despite the deportation order,
Cervantes-Nava returned to the United States.
II.
Cervantes-Nava stipulated to the facts un-
derlying the charge of illegal re-entry into the
United States after deportation but disputed
his status as an alien, challenging the consti-
tutionality of the derivative citizenship laws
that classified him as a non-citizen. He ar-
gued that the INA cannot constitutionally im-
pose a five-year continuous residency require-
ment 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 court rejected 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’ impris-
onment.
III.
We begin by examining the INA’s deriva-
tive citizenship provisions.1 At the time of
Cervantes’s birth,2 the 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 uni-
form 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).

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3
children to the detriment of legitimate 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 cit-
izenship. Section 301(a)(7) of the INA gov-
erned 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 chil-
dren born abroad to citizen mothers and im-
posed 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 Cervantes-
Nava’s argument is correctSSalien status
counts as an element of the illegal re-entry
charge that the United States must prove be-
yond 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 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 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). 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 the 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 effect at the time of Cer-
vantes-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 ille-
gitimate children born abroad:
[A] person born, on or after the effective
date of this chapter [December 23, 1952],
outside the United States and out of wedlock
shall be held to have acquired at birth the
nationality status of his mother, if the moth-
er had the nationality of the United States at
the time of such person’s birth, and if the
mother had previously been physically pres-
ent in the United 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...)

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4
government presented copies of the 1965 de-
nial of citizenship and the immigration judge’s
1993 order deporting Cervantes-Nava.6 Cer-
vantes-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 unconstitu-
tionality of the derivative citizenship statutes
and will consider whether that assumed uncon-
stitutionality would disprove the alienage ele-
ment of the illegal re-entry conviction. That
hypothetical inquiry leads us to conclude that
if a court found the derivative citizenship stat-
utes 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 grant-
ed citizenship. Because any judicial interpreta-
tion of the INA would classify him as an alien,
the government has met its burden of proving
his alien status even if the derivative citizen-
ship statutes are unconstitutional.7
A court reviewing the 1965 denial of citi-
zenship 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 sev-
erance options to cure the equal protection
problems of which Cervantes-Nava com-
plains.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 ad-
ministrative decisions, standing alone, should es-
tablish Cervantes-Nava’s alien status. We decline
to decide the case on this ground. Giving the ad-
ministrative decisions such sweeping preclusive ef-
fect would raise serious constitutional questions,
because neither the 1965 application for citizenship
nor the 1993 deportation proceeding included the
full range of constitutional rights available in a
criminal trial. See United States v. Mendoza-
Lopez, 481 U.S. 828, 839 & n.15 (1987) (refusing
to grant preclusive effect to deportation hearing be-
cause 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 un-
der 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, like mandamus 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 deter-
mined that a person does not qualify for citizen-
ship, . . . 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 chang-
es 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 Protec-
tion Clause. E.g., Califano v. Westcott, 443 U.S.
(continued...)

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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
parental residency requirement of § 309(c) and
apply the more stringent, default requirement
of § 301(a)(7) to both legitimate and illegiti-
mate children.10
The first option, however, would not cure
the constitutional defect, because severance of
§301(a)(7) would not suffice to eliminate the
unconstitutional distinction between legitimate
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 con-
viction 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 interpreta-
tions 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 re-
mainder of the INA). It remains uncertain, how-
ever, 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 de-
clare [the statute] a nullity and order that its bene-
fits not extend to the class that the legislature in-
tended 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., concur-
ring)).
11 Courts should select the severance option
(continued...)
11(...continued)
most compatible with the statute’s original text and
structure, because severance is based on the as-
sumption 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 statute where “the provisions are inseparable by
virtue of their inherent character.” Carter v.
Carter Coal Co., 298 U.S. 238, 322 (1936).

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violence or an aggravated felony under
§ 16(b). Id. at 923-28. Changes in sentencing
law between sentencing and appeal that benefit
the defendant require us to 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
recalculate Cervantes-Nava’s sentence without
the sixteen-level enhancement.
The judgment of conviction is AFFIRMED.
The judgment of sentence is VACATED and
REMANDED for resentencing.

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