Monday, November 18, 2013

Mondaca Vega en banc in the Ninth Circuit by Timothy Dugdale

Claudia Marquez-Moreno (Moreno) recently lost a petition of review of her criminal conviction for falsely claiming American citizenship (US v. Moreno 2013, 3rd Circuit Download Third ciercuit decision). Moreno previously contested an impending deportation (Marquez-Marquez v. Gonzales 2006, 5th Circuit, 2006) by claiming derivative citizenship through her U.S. citizen stepfather even though he didn't marry her mother until long after she was born and then adopted her some time after that. The judges were unconvinced, especially by her Hail Mary attempt to leverage Scales and Solis-Espinoza to her advantage. The petition was denied and Moreno was deported but not undaunted. She snuck back into the US and returned to New Mexico, her previous playground of criminality. She managed to secure a US passport from the State Department by claiming she was born in New Mexico. Thinking perhaps that she was now free to roam, Moreno went to Mexico and upon return, the passport was confiscated by ICE. A year later, ICE put her in custody. The DHS, however, allowed her release when they learned she had been issued a valid passport and the State Department had not revoked the passport. In 2011, Moreno, with her usual moxy, went on vacation outside the United States. When her cruise ship arrived in St. Thomas, she presented a New Mexico driver's license, a New Mexico birth certificate and a copy of her passport. She was arrested for willful misrepresentation in violation of 18 U.S.C. § 911 and ultimately sentenced to twenty-nine months in prison.

The Third Circuit denied Moreno's petition because she could only satisfy one of what the court considered the two keynotes of proof of citizenship - a valid passport and the person to whom it was issued was actually a US citizen. This decision runs counter to their previous ruling in Vana v. Attorney General (per curiam) and Judge Smith dissented, stating that a passport is recognized throughout the circuit court system as conclusive evidence of U.S. citizenship pursuant to 22 U.S.C. § 2705(1).

Moreno is an interesting decision with interesting timing because the 9th circuit has just announced that it will rehear en banc Mondaca-Vega (2013). In that petition, a gent with over fifty years of immigration violations and removals, fought to keep his US passport and avoid deportation. The record from the evidenciary hearing in district court was damning - Mondaca-Vega, a Mexican citizen, had secured a false identity in the United States and parlayed that into a passport not only for himself but his children as well. The petitioner, on the other hand, argued that he was who he said he was and must be accepted as such because he had a passport and its derivative power to prove it.

Perhaps the Ninth will take note of another part of Judge Smith's dissent in Moreno. He suggests that she should have been acquitted and that if prosecutors wanted to have a real crack at her, they should have had the State Department revoke her passport first. -- Timothy Dugdale, Ph.D., Founder Atomic Quill Media, Windsor, Ontario

http://lawprofessors.typepad.com/immigration/2013/11/mondaca-vega-en-banc-in-the-ninth-circuit-by-.html

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