[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 15, 2002
No. 01-15275 THOMAS K. KAHN
Non-Argument Calendar CLERK
D. C. Docket No. 01-00286-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO ARBELO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Miami
(April 15, 2002)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Appellant was indicted, and adjudged guilty following a bench trial, for
being found in the United States after having been removed from the country in
1998, as a result of a conviction for an aggravated felony, without having obtained
the express consent of the Attorney General for re-entry in violation of § 1326. At
trial, the court was presented with one legal issue: whether the Child Citizenship
Act of 2000 (the “Act”), 8 U.S.C. § 1431, which became effective on February 27,
2001, operated retroactively to make appellant (a native of Guatemala born in
1968) a “citizen” as a matter of law before he was “found” in Miami-Dade county
in March 2001.1 Appellant contended that if the Act were applied retroactively, the
court was required to dismiss his indictment. The court resolved this issue in favor
of the government.
The Act amended and repealed prior provisions of Title 8 of the United
States Code relating to the automatic acquisition of citizenship by children of
American citizens. See 8 U.S.C. § 1431; Nehme v. INS, 252 F.3d 415, 430-32 &
nn. 19, 20 (5th Cir. 2001). Under the Act, “a minor child who is a lawful
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In addition to this legal issue, the court was presented with two subsidiary
factual issues, both of which it resolved in appellant’s favor: (1) whether
appellant’s father had become a naturalized American citizen on June 9, 1980, and
(2) whether appellant had resided with, and was in the legal custody of, his father
from 1982 to 1984. In that we resolve the legal issue in the government’s favor,
we do not address these issues of fact.
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permanent resident [of the United States] would automatically be naturalized when
either one of his parents becomes a United States citizen . . . as long as the child is
in the legal custody of the citizen parent.” Nehme, 252 F.3d at 430-31. The Act
specified that its amendments to prior law “shall take effect 120 days after the date
of the enactment of this Act and shall apply to individuals who satisfy the
requirements [set forth above] as in effect on such effective date.” The Act § 104;
Nehme, 252 F.3d at 431. The Act’s effective date was February 27, 2001.
Appellant acknowledges, as he did in the district court, that the decisions
interpreting and applying the Act have squarely rejected his argument for
retroactivity. See Hughes v. Ashcroft, 255 F.3d 752, 758-60 (9th Cir. 2001);
Nehme, supra; and In Re Jesus Enrique Rodriguez-Tejedor, 23 I. & N. Dec. 153,
interim dec. 3454 (BIA July 24, 2001) (en banc)). We are persuaded that those
decisions are correct, and therefore hold that, in the Eleventh Circuit, the Act is not
to be applied retroactively.
AFFIRMED.
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