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Fifth Circuit Court of Appeals Transfers Review for Petition of Removal against Mexican Immigrant—District Court to Clarify His Citizenship

After being ordered removed by an immigration judge, Ulises Hernandez Rosales found a glimmer a of hope as the United States Court of the Appeals for the Fifth Circuit transferred his petition for review of removal (deportation), after learning there was a real issue of material fact to his citizenship concerns. In light of this issue, Court Of Appeals moved to transfer the case to United States district court for a hearing and decision to confirm Hernandez’s nationality claim.

Case Background: Overstaying and Drug Charges

Ulises Hernandez Rosales (Hernandez), age 29, is a native of Mexico, born in Nuevo Leon on August 21, 1986. Hernandez entered the United States in 1995 as a nonimmigrant visitor, but would overstay his visa and be convicted for cocaine possession charges by a Texas court in 2009. A year later, the Department of Homeland Security summoned Hernandez after finding him eligible for deportation on the grounds of violating his visa privileges and for being convicted of charges related to possession of a controlled substance.

In 2011, Hernandez appeared before an immigration judge (IJ), admitting he was born in Mexico, had stayed longer than his visa allowed, and was rightfully convicted for possession of cocaine. However, his case was allowed to continue in order to provide an opportunity to prove his United States citizenship by virtue of being born to his mother, Edna Rosales Villanueva, which would, in effect, grant him protection against deportation.

In later hearings, Hernandez argued that he had obtained U.S. citizenship under 8 U.S.C. § 1409(c), which grants citizen’s rights to offspring born out of wedlock to mothers with U.S. citizenship, and had stayed in the United States for a continuous period of one year before the child’s birth.

The court ultimately agreed that his mother, Edna Rosales Villanueva, was indeed a U.S. citizen, and confirmed she had continuously stayed in the United States for over a year before her son’s birth.

Because of this, the immigration court would base its ruling on Hernandez’s U.S. citizenship on whether or not he was truly born “out of wedlock” and eligible under the Immigration and Nationality Act (INA).

The IJ, however, rejected Hernandez’s arguments, ruling he was born in wedlock and therefore could not benefit from 8 U.S.C. § 1409(c) and receive citizenship protection. He was later ordered removed, a ruling affirmed by the Board of Immigration Appeals (BIA), forcing Hernandez to seek review with the Court of Appeals.


Because Hernandez’s mother had reportedly divorced her husband before her son’s birth, the court ruled there was a genuine issue of material fact to the petitioner’s claims, and if confirmed, would mean he was indeed born out of wedlock. As such, the Fifth Circuit transferred the case to a district court, which would decide on the petitioner’s citizenship claim, specifically, whether Hernandez’s mother and her husband were married or divorced at the time of their son’s birth.

Long and complex cases like this serve to highlight the importance of having legal counsel. To learn about your rights as an immigrant, talk to the legal team of Lyttle Law Firm today. Call us at (512) 215-5225.

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