Mary Ruth Burgess v. Edwin Meese as U.S. Attorney General and Immigration & Naturalization Service

802 F.2d 338 Mary Ruth BURGESS, Plaintiff-Appellee, v. Edwin MEESE as U.S. Attorney General and Immigration & Naturalization Service, Defendants-Appellants. No. 85-3916. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 1986. Decided Oct. 14, 1986. Paul D. Edmondson, Yakima, Wash., for plaintiff-appellee. Joan E. Smiley, Eloise Rosas, Dept. of Justice, Washington, D.C., for defendants-appellants. Appeal from the United States District Court for the Eastern District of Washington. Before WRIGHT, TANG and REINHARDT, Circuit Judges. TANG, Circuit Judge: 1 The Attorney General appeals the district court's grant of summary judgment declaring Mary Ruth Burgess a citizen of the United States under the Immigration and Nationality Act Secs. 301(g) and 309(a), 8 U.S.C. Secs. 1401 (g) and 1409(a)(1983). We affirm. FACTS 2 Mary Ruth Burgess ("Mary") was born September 28, 1962 in Tijuana, Mexico. Her mother, Josefine Carrillo, is a native of Colima, Mexico. Her father, Don L. Burgess ("Don"), was a native of Pikesville, Tennessee, USA. Mary's parents never legally married, but lived together in Tijuana, Mexico for ten years until Don's death on June 1, 1963 in…

concurring:

I concur in the judgment because Washington law compels it, as do federal statutes. But Judge Tang’s recital of the facts-causes me some concern. I see the potential for fraud in the entry of ex parte paternity decrees and believe we need more stringent procedures for establishing legitimation. I also disagree with the method by which the majority reaches its conclusion to affirm. It attributes to the district court findings of fact that were never made.

Mary Burgess was eight months old when Don Burgess died. Not until several days after his death did her mother register the birth in Mexico, showing Don as the father. Twenty years later, Mary se *342 cured a paternity decree in an ex parte proceeding in a Washington superior court. She then filed for a declaratory judgment of citizenship, but her marriage prevented her from meeting the statutory definition of “child.” Not to be dissuaded by the inconvenience of a marriage, she had it annulled, alleging that she married while still a minor without consent of her parent. She had married one day before her eighteenth birthday.

By not defining “legitimation,” 8 U.S.C. § 1409 (a), Congress has invited fraud. The facts…

The Attorney General appeals the district court’s grant of summary judgment declaring Mary Ruth Burgess a citizen of the United States under the Immigration and Nationality Act §§ 301(g) and 309(a), 8 U.S.C. §§ 1401 (g) and 1409(a)(1983). We affirm.

FACTS

Mary Ruth Burgess (“Mary”) was born September 28, 1962 in Tijuana, Mexico. Her mother, Josefine Carrillo, is a native of Colima, Mexico. Her father, Don L. Burgess (“Don”), was a native of Pikesville, Tennessee, USA. Mary’s parents never legally married, but lived together in Tijuana, Mexico for ten years until Don’s death on June 1, 1963 in Tijuana. Mary’s birth certificate was registered by her mother on June 7, 1963 in Tijuana, six days after Don’s death.

Mary entered the United States in 1979. She married in Yakima, Washington on September 27,1980. On April 15,1983, she obtained a declaration of paternity from the Superior Court of Washington for Yakima County establishing Don as her natural and legal father pursuant to WasLRev. Code Ann. § 26.26 (West 1986).

Mary submitted her claim to citizenship to the Immigration and Naturalization Service which was denied by the District Director on October 25, 1983. This decision…