UNITEDSTATES DISTRICT COURT
NORTHERNDISTRICT OF TEXAS
DALLASDIVISION
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
)
Plaintiff, ) 3:03-CR-144-M
)
v. ) [FILED UNDERSEAL]
)
XXXXXX-XXX, )
)
Defendant. )
)
EXPARTE MOTION FORAUTHORIZATION TO RETAIN EXPERT
Defendant,XXX XXX-XXX, pursuant to 18 U.S.C. ¤ 3006A(e)(1), hereby moves this Court forauthorization to obtain expert assistance from Paul Zoltan, an immigrationlawyer. In support of this motion,Mr. XXX-XXX sets forth the following facts and argument.
1. Mr.XXX-XXX is charged with illegal reentry after deportation in violation of 8U.S.C. ¤ 1326(a) and (b)(2), and 6 U.S.C. ¤¤ 202 and 557.
2. Inorder to establish illegal reentry as charged above, the first element thegovernment must establish is that the defendant was an alien at the timealleged in the indictment. See Fifth CircuitÕs pattern jury instructions. Of course, the government must provethis element to the jury (and the Court) beyond a reasonable doubt.
3. Mr.XXX-XXXÕs defense to the offense is that he is a citizen, or alternatively,that reasonable doubt exists with respect to his alienage.
4. Mr.XXX-XXX has raised this issue in a motion to dismiss that is currentlypending. Counsel believes thisissue is better raised at trial. It is better to raise this issue at trial because the legal question ofMr. XXX-XXXÕs status, as an element of the crime, becomes a question of fact tobe resolved by the jury or the court. More importantly, if raised at trial, any determination of the issueadverse to the government by the Court or the jury may not be appealed.
5. Inorder to raise this issue in a trial proceeding, counsel will need to put intoevidence the expert testimony of an immigration law expert in order to explain,how, by operation of law, Mr. XXX-XXX is, in fact a U.S. citizen, oralternatively, how his status is not clear.
6. Counselrealizes this is a rather extraordinary and unusual claim to make in an illegalreentry case. After all, Mr.XXX-XXX has been deported and the Immigration and Naturalization Servicebelieves that he is an alien. This motion, therefore, will brieflyexplain the legal theory on which Mr. XXX-XXX, relies.
7. Mr.XXX-XXX was born in Nuevo Laredo, in the state of Tamaulipas, in the country ofMexico in 1957. His father wasMexican. His mother, born in 1937,was also born in Mexico. Herfather, however, was born in Texas, and consequently was a U.S. citizen. Because he was a U.S. citizen,XXX-XXXÕs mother was also born a U.S. Citizen. See R.S. 1993, asamended in 1934, 48 Stat. 797, formerly 8 U.S.C.A ¤ 6 (ÒAll children heretoforeborn or hereafter born out of the limits and jurisdiction of the United States,whose fathers were or may be a the time of their birth citizens thereof, aredeclared citizens of the United States; but the rights of citizenship shall notdescend to children whose fathers never resided in the United States.Ó)[2] Although XXX-XXXÕs mother was born acitizen, she did not transmit that citizenship to him at his birth because shehad not lived in the United States prior to his birth. In effect, the law at the time ofXXX-XXXÕs birth provided that his mother must have been physically present inthe United States prior to the childÕs birth for a period of ten years, atleast five of which were after the age of fourteen. 8 U.S.C. ¤ 1401(g) (prior version). In 1966, after her husband, XXX-XXXÕsfather had died, his mother, at the age of 29, filed Form N-600. This request for an ÒApplication for Certificate of CitizenshipÓ wasbased on her fatherÕs U.S. citizenship. Based on her application, the I.N.S. granted her a certificate; however,remarkably, they did so in error. Section 1993 of the Immigration and Nationality Act of June 27, 1952 (8U.S.C. ¤ 1431) (repealed in 1978) provided:
Any person who is a national and a citizen of theUnited States at birth under paragraph (7) of subsection (a), (i.e., bornoutside of the United States, of a U.S. citizen and one alien parent, and theU.S. citizen parent had resided in the United States for the requisite timeperiod), shall lose his [or her] nationality and citizenship unless he [or she]shall come to the United States prior to attaining of twenty-three years andshall immediately following any such coming be continuously present in theUnited States for at least five years: provided that such physical presencefollows the attainment of the age of fourteen years and precedes the age oftwenty-eight years.
Therefore,XXX-XXXÕs mother, who admits in her Form N-600 application that she had neverresided in the United States, did not, therefore, fulfill the Òretentionrequirement,Ó and should not have been granted a certificate of citizenshippursuant to 8 U.S.C. ¤ 1401(g). Atfirst glance, this conclusion appears to weaken XXXÕs citizenship claim. Yet closer examination revealsotherwise.
8U.S.C. ¤ 1435(d) provided that a person who loses their citizenship becausethey do not meet the retention requirement quoted above becomes a citizen againÒfrom and after taking the oath of allegiance required by section 1448 of thistitle to be a citizen. . . without filing an application fornaturalization.Ó When XXX-XXXÕsmother filed her application for a certificate of citizenship, she, in fact,took the oath of allegiance required by section 1448. Therefore, by operation of law, she became a naturalized citizen. In other words, although she was born a citizen, she lost hercitizenship because she failed to reside in the United States for five yearsbetween the age of fourteen and twenty-eight. She regained her citizenship, however, by a process ofautomatic naturalization, whenshe took her oath of loyalty.
Howshe became a citizen makes all the difference in the world to Mr. XXX-XXX.[4] 8 U.S.C. ¤ 1432(c) provided, inrelevant part:
Achild born outside of the United States . . . of an alien parent and a citizenparent, who subsequently lost citizenship,. . . becomes a citizen upon the fulfillment of the following conditions:
(3)The Naturalization of the parent having legal custody of the child when therehas been a legal separation of the parents . . .; and if
(4)Such Naturalization takes place while such child is under age of eighteenyears; and
(5). . . the [child of the] parent naturalized under clause (3) . . . begins toreside permanently in the U.S. under eighteen years of age.
Mr.XXX-XXX fulfills all of the above conditions. He was a child born outside of the United States of acitizen parent who subsequently lost citizenship; who was separated from hisfather due to his fatherÕs death; who was naturalized when his mother took theoath of loyalty before Mr. XXX-XXX was eighteen years old; and thereafter, hebegan to live in the United States as a permanent resident. Mr. XXX-XXX, therefore, by operation oflaw, is a U.S. Citizen.
8. Afterhaving researched this issue, (with the assistance of Mr. XXX-XXX), counselconsulted with a respected local immigration lawyer, Paul Zoltan. Mr. Zoltan informed counsel that hispreliminary assessment was that the foregoing theory is legally sound. Counsel therefore requests permissionto retain Mr. Zoltan as an expert witness.
9. Mr.Zoltan has been practicing, exclusively, immigration law for eleven years. He received his B.A. from WesleyanUniversity in 1987, and his J.D. from the University of Minnesota Law School in1992. In the interlude between histime in college and law school, Mr. Zoltan spent a year teaching in Auncion,Paraguay. Since 1992, he haspracticed immigration law in Dallas, Texas. Until 1997, he served as Legal Service for the non-profitagency Proyecto Adelante. Sincethat time he has been in private practice. His practice focuses on the plight of refugees and the victimsof human trafficking and domestic violence. For the past two years he has served as the Coordinator ofthe Dallas Section of the American Immigration Lawyers Association. In May 2002, he received a formalÒSpecial RecognitionÓ from Mayor Laura Miller and Dallas City Council Òforgenerously and kindly assist[ing] the poorest of the poor to participate asfull citizens in our democratic society.Ó
10. Inthis case Mr. Zoltan has generously agreed to give his expert assistance at thereasonable rate of $150.00 per hour. Although, in court time, and trialpreparation time are difficult to predict in advance, Counsel anticipates thatMr. Zoltan will not need to expend more than twenty hours on this case.
WHEREFORE, XXX XXX-XXX respectfully requests thatthis Court authorize undersigned counsel to retain the services of Paul Zoltanin connection with the above referenced case at $150 per hour to a maximum of$5000.
Respectfullysubmitted,
__________________________
FranklynMickelsen
Tx.Bar 24001495
Broden& Mickelsen
2715Guillot
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
Attorneyfor Defendant
XXXXXX XXX
UNITED STATES DISTRICT COURT
NORTHERNDISTRICT OF TEXAS
DALLASDIVISION
UNITEDSTATES OF AMERICA, ) CRIMINAL ACTIONNO.
)
Plaintiff, ) 3:03-CR-144-M
)
v. ) [FILED UNDERSEAL]
)
XXXXXX-XXX, )
)
Defendant. )
)
EXPARTE O R D E R[NOT TO BE SERVED ON PLAINTIFF]
Uponconsideration of Defendant's Ex ParteMotion for Authorization to Retain Expert, said Motion is this day of _____, 2003 GRANTED.
ORDEREDDefendant is authorized to obtain the expert services of Paul Zoltan inconnection with the above referenced case at a rate of $150 per hour to amaximum of $5000.
___________________________
BARBARAM.G. LYNN
UNITEDSTATES DISTRICT JUDGE