In a shocking Circuit Court decision yesterday, the Fifth Circuit concluded that a 1978 decision of the BIA had cited a section of the Mexican constitution that didn’t even exist and that the agency had continued to use this fictional section of Mexican law to deny requests for proof of U.S. Citizenship for 35 years since. The case is called Saldana Iracheta v. Holder.

In Matter of Reyes, the Board held that when a child is born to un-wed parents in Mexico, he can only be “legitimated” by his father if his father and his mother subsequently get married to each other.  This belief was based on the Board’s understanding of “Article 314 of the Constitution of Mexico.”

The Fifth Circuit, however, pointed out that there is no such section of the Constitution of Mexico, and there never was.  Yet, the court noted the agency has continued to rely on this falsehood over and over, in case after case (citing numerous examples of denied AAO appeals citing this rule).  It said

the BIA’s mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases. That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals.

The Court said whether a child had been legitimated was a question of law, not of labels.  And because children born out of wedlock who are “acknowledged” have the same legal rights as those who are “legitimated” under Mexican law, the individual was a U.S. Citizen.