Scales v. INS: Ninth Circuit Rules Transmission of Citizenship Does Not Require Blood Relationship

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

SCALES V. INS: NINTH CIRCUIT RULES TRANSMISSION OF CITIZENSHIP DOES NOT REQUIRE BLOOD RELATIONSHIP
Immigrants' Rights Update, Vol. 14, No. 8, Dec. 27, 2000

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit has held that the petitioner, a man born in the Philippines, acquired citizenship through his U.S. citizen father, even though his father may not be his blood relative. Stanley Scales, the petitioner, was born in the Philippines in 1977. His mother, Aily Topaz, met Stanley Scales, Sr., an American citizen-serviceman, during the first week of September 1976. A week later, Topaz told Scales that she was pregnant, probably from a prior relationship. Topaz and Scales were married in March 1977, and Stanley Scales, Jr., was born on Apr. 6, 1977. The family moved to Texas and later, when the junior Scales was 11 years old, to Washington State.

In 1996 Scales, Jr., was convicted of an aggravated felony and was placed in deportation proceedings. At his deportation hearing, he conceded that he was a Philippine citizen. On appeal to the Board of Immigration Appeals, he alleged that he was actually a U.S. citizen, based on the principle that children born during a valid marriage are presumed offspring of that marriage. He also stated that it was possible that Scales, Sr., was his natural father. The BIA rejected his arguments on the merits, citing an affidavit of nonpaternity that his father had signed in order to obtain an immigrant visa for Scales, Jr., when he moved to the U.S. in 1979.

Whether or not parents may confer citizenship benefits on their children depends on the immigration laws in effect at the time of their children's birth. In 1977, the year when Scales Jr. was born, the applicable statute provided that a person born outside the U.S. to an alien parent and citizen parent could acquire U.S. citizenship through the citizen parent, provided that the citizen parent had lived in the U.S. for a certain period of time. Another relevant statute defined "child" as an unmarried person under 21 years of age and included within its definition such a person who was "legitimated" under the law of the child's or father's residence.

In Washington, the state of the family's domicile, a presumption exists that a man is the natural father of a child born during marriage. Scales, Jr., thus argued that he was legitimated and that he therefore acquired citizenship through his father.

As no regulations or other guidelines interpret this issue, the government argued that a statement on citizenship acquisition issued from the State Dept. Foreign Affairs Manual (FAM) should be given deferential treatment. The FAM states that without a blood relationship, U.S. citizenship is not acquired. The government cited Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), for the proposition that when statutory language is ambiguous, courts should defer to the reasonable interpretation of the agency charged by Congress with implementing the statute.

The Ninth Circuit held that because determining the petitioner's citizenship was not the duty of the State Dept., the agency was not entitled to deference. Moreover, the court ruled, the FAM statement is not specifically an interpretation of the particular statute and the FAM provision is not an interpretation arrived at after formal adjudication. The court stated that interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron style deference.

Applying the particular immigration statute requiring only that the petitioner be "born of parents" one of whom is an U.S. citizen, the court held that Scales, Jr., acquired citizenship through his citizen father.

Scales v. INS, __ F.3d __, No. 97-70915 (9th Cir. Nov. 21, 2000).