Rajeshree Roy v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJESHREE EUNICE ROY, AKA No. 15-72942
Rajeshree Eunice Willis,
Petitioner, Agency No.
A038-791-594
v.
WILLIAM P. BARR, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 28, 2020
San Francisco, California
Filed June 4, 2020
Before: J. Clifford Wallace, Ronald Lee Gilman,*
and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 ROY V. BARR
SUMMARY**
Immigration
Dismissing Rajeshree Roy’s petition for review of a
decision of the Board of Immigration Appeals, the panel
concluded that Petitioner failed to establish an equal
protection violation with respect to 8 U.S.C. § 1432(a)(3), the
applicable derivative-citizenship statute.
Petitioner was born in Fiji in 1974 to two Fijian citizens
who never married. In 1983, her father naturalized, and her
mother formally relinquished parental rights and gave full
custody to the father. In 1984, Petitioner entered the United
states as a lawful permanent resident, but was later charged
as removable based on criminal convictions. She moved to
terminate proceedings, challenging the constitutionality of
8 U.S.C. § 1432(a)(3). An immigration judge denied the
motion, and the BIA dismissed Petitioner’s appeal.
Before this court, Petitioner argued that the second clause
of § 1432(a)(3) discriminates by gender and legitimacy and
thus violates the Constitution’s guarantee of equal protection.
The panel noted that the court generally lacks jurisdiction to
review a final order of removal against a non-citizen whose
commission of a certain type of crime rendered her
removable, 8 U.S.C. § 1252(a)(2)(C), but that the court
retains jurisdiction to review legal questions, including
whether § 1252(a)(2)(C)’s jurisdictional bar applies.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROY V. BARR 3
The panel concluded that Petitioner’s gender-
discrimination claim failed because she was not similarly
situated to persons who derived citizenship under
§ 1432(a)(3)’s second clause. The panel explained that the
clause discriminates on the basis of gender because it grants
citizenship upon “the naturalization of the mother if the child
was born out of wedlock and the paternity of the child has not
been established by legitimation,” but does not grant
citizenship in the converse scenario: upon the naturalization
of the father if the child was born out of wedlock and the
child’s maternity has not been established by legitimation.
The panel noted that Petitioner did not, and could not,
challenge this clearly disparate treatment because both her
paternity and maternity were established during her youth.
However, Petitioner argued that the clause discriminates
because it does not contain an equivalent provision stating
that a child derives citizenship upon the naturalization of the
father where the child was born out of wedlock, and the
mother relinquished paternal rights or gave up the child. The
panel rejected this argument, explaining that the second
clause says nothing about the relinquishment of parental
rights or the abandonment of a child; rather, it hinges on
whether a father legitimated his child. Thus, the panel
concluded that Petitioner did not suffer from a gender-based
distinction; she simply did not meet the statute’s criteria.
The panel also rejected Petitioner’s legitimacy-
discrimination claim. Petitioner contended that
§ 1432(a)(3)’s use of legitimation as a criterion inherently
discriminates on the basis of gender because a father cannot
legitimate a child simply by being present for the child’s
birth. However, the panel concluded that, because both
fathers and mothers can legitimate a child after the child’s
4 ROY V. BARR
birth, legitimation is not inherently discriminatory. Further,
the panel concluded that Petitioner was not similarly situated
to a person who derived citizenship under the clause because
both her parents had legitimated.
To the extent that Petitioner raised a legitimacy-
discrimination claim based on the first clause of § 1432(a)(3),
which grants citizenship to a child upon naturalization of the
parent with legal custody when there has been a legal
separation of the parents (and therefore does not provide
citizenship where the parents were never married), the panel
observed that this court’s decision United States v. Mayea-
Pulido, 946 F.3d 1055 (9th Cir. 2020), foreclosed such a
challenge.
Accordingly, because Petitioner is not a United States
citizen, the panel concluded that it lacked jurisdiction to
review her final order of removal.
COUNSEL
Delanie Grewe (argued), Certified Law Student; Holly S.
Cooper (argued) and Michael Benassini, Supervising
Attorneys, U.C. Davis School of Law, Immigration Law
Clinic, Davis, California; Kasdin M. Mitchell (argued), Erin
E. Murphy, and Michael D. Lieberman, Kirkland & Ellis
LLP, Washington, D.C.; for Petitioner.
Tim Ramnitz (argued) and Laura M.L. Maroldy, Attorneys;
Shelley R. Goad, Assistant Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration Litigation,
ROY V. BARR 5
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
Lisa Weissman-Ward, Jayashri Srikantiah, and Brittany
Benjamin, Stanford Law School, Immigrants’ Rights Clinic,
Stanford, California, for Proposed Intervenor.
OPINION
GRABER, Circuit Judge:
Petitioner Rajeshree Roy challenges her pending removal
to Fiji. Petitioner contends that, as a result of her father’s
naturalization in 1983, she should have become a United
States citizen automatically when she was admitted to the
United States as a permanent resident the next year. That did
not happen.
The applicable derivative-citizenship statute, former
8 U.S.C. § 1432(a)(3),1 contains two clauses. The first clause
grants citizenship to a child upon the “naturalization of the
parent having legal custody of the child when there has been
a legal separation of the parents.” Id. We upheld that clause
as constitutional in United States v. Mayea-Pulido, 946 F.3d
1055 (9th Cir. 2020).
1
We assess claims of derivative citizenship “under the law in effect
at the time the critical events . . . occurred.” Ayala-Villanueva v. Holder,
572 F.3d 736, 738 (9th Cir. 2009) (quoting Minasyan v. Gonzales,
401 F.3d 1069, 1075 (9th Cir. 2005)). All citations to § 1432 in this
opinion refer to the version in effect in 1984.
6 ROY V. BARR
Section 1432(a)(3)’s second clause grants citizenship to
a child upon “the naturalization of the mother if the child was
born out of wedlock and the paternity of the child has not
been established by legitimation.” Petitioner argues that this
clause discriminates by gender and legitimacy and thus
violates the Constitution’s guarantee of equal protection.
Because Petitioner’s paternity and maternity were both
established when she was a child, she is not similarly situated
to persons who derived citizenship under § 1432(a)(3)’s
second clause. Thus, her constitutional challenge fails.
Accordingly, because Petitioner is not a United States citizen,
we dismiss the petition for review.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was born in Fiji in 1974 to two Fijian citizens.
Her parents had four children together, but they never
married. Petitioner’s mother moved to Australia in 1975, and
her father immigrated lawfully to the United States soon
after. Petitioner remained in Fiji with her paternal
grandmother for nearly a decade.
In 1983, Petitioner’s father became a naturalized United
States citizen. Through proceedings in Australia, Petitioner’s
mother formally relinquished her parental rights over
Petitioner and gave full custody to Petitioner’s father.
Petitioner’s father then filed a visa application for Petitioner
to live with him in the United States. The parties agree that
Petitioner’s paternity was legitimated at some point before
she turned 18, either because her father’s name appeared on
ROY V. BARR 7
her birth certificate (along with her mother’s name) or
because her father identified her as his daughter on the visa
application. Petitioner entered the United States as a lawful
permanent resident in 1984; her father raised her from that
point forward with minimal involvement from her mother,
who still lives in Australia.
In 1991, Petitioner was convicted of nine criminal
charges, including assault and battery. She served a 14-year
sentence for those convictions, which she concedes would
render a non-citizen removable from the United States. In
2011, Petitioner was convicted of shoplifting. The
government commenced removal proceedings upon her
release from prison in 2014.
Petitioner moved to terminate the removal proceedings,
arguing that she should have derived citizenship from her
father. Specifically, Petitioner argued that § 1432(a)(3)
unconstitutionally fails “to recognize the rights of fathers who
act as sole caretakers for their out-of-wedlock children.” An
immigration judge denied Petitioner’s motion to terminate
because he lacked jurisdiction to address her constitutional
claim. Likewise, the Board of Immigration Appeals
dismissed Petitioner’s appeal because it lacked jurisdiction to
consider her constitutional claim. Sola v. Holder, 720 F.3d
1134, 1135 (9th Cir. 2013) (per curiam). Petitioner timely
sought our review.
8 ROY V. BARR
JURISDICTION AND STANDARD OF REVIEW2
Although we generally lack jurisdiction to review a final
order of removal against a non-citizen whose commission of
a certain type of crime rendered her removable, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction under § 1252(a)(2)(D)
to review legal questions, including whether
§ 1252(a)(2)(C)’s jurisdictional bar applies. Here, because
there is no genuine dispute of material fact, we may
determine Petitioner’s citizenship “as a matter of law.”
Mustanich v. Mukasey, 518 F.3d 1084, 1087 (9th Cir. 2008)
(citing § 1252(b)(5)(A)). We review de novo legal and
constitutional questions arising from removal proceedings.
Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).
DISCUSSION
To prevail on her equal-protection claim, Petitioner “must
show that a class that is similarly situated has been treated
disparately.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957,
2
Contrary to the government’s view, Petitioner has standing to
challenge § 1432(a)(3)’s constitutionality. Specifically, the alleged
constitutional violation, if it existed, would be redressable. We have held
that courts may grant citizenship “as a remedy to rectify constitutional
violations.” Brown v. Holder, 763 F.3d 1141, 1149 (9th Cir. 2014). See
also Wauchope v. U.S. Dep’t of State, 985 F.2d 1407, 1418 (9th Cir. 1993)
(explaining that an award of citizenship falls within “the traditional
authority of the courts to remedy equal protection violations by extending
the benefits of a discriminatory statute to a disfavored class”). And the
Supreme Court has affirmed the addition of new text to a statute as a
remedy “to render [an unconstitutional] program gender neutral.”
Califano v. Westcott, 443 U.S. 76, 93 (1979).
ROY V. BARR 9
966 (9th Cir. 2017) (internal quotation marks omitted).3 In
analyzing Petitioner’s claim, we first “identify the
[government’s] classification of groups” in the statute. Id.(quoting Country Classic Dairies, Inc. v. Milk Control
Bureau, 847 F.2d 593, 596 (9th Cir. 1988)). After identifying
a “classified group,” we search for a comparative group
“composed of individuals who are similarly situated to those
in the classified group in respects that are relevant to the
[government’s] challenged policy.” Gallinger v. Becerra,
898 F.3d 1012, 1016 (9th Cir. 2018). “If the two groups are
similarly situated, we determine the appropriate level of
scrutiny and then apply it.” Id. (emphasis added).
Section 1432(a) provides (with emphasis added to the
challenged clause):
A child born outside of the United States of
alien parents . . . becomes a citizen of the
United States upon fulfillment of the
following conditions:
(1) The naturalization of both parents; or
3
Petitioner challenges federal legislation, so the “applicable equality
guarantee” comes from the Fifth Amendment’s Due Process Clause rather
than the Fourteenth Amendment’s Equal Protection Clause. Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017). The Fifth
Amendment prohibits “discrimination that is so unjustifiable as to be
violative of due process.” Id. (quoting Weinberger v. Wiesenfeld,
420 U.S. 636, 638 n.2 (1975)). Despite the textual differences between
the two amendments, the “approach to Fifth Amendment equal protection
claims has always been precisely the same as to equal protection claims
under the Fourteenth Amendment.” Id. (quoting Weinberger, 420 U.S.
at 638 n.2).
10 ROY V. BARR
(2) The naturalization of the surviving parent
if one of the parents is deceased; or
(3) The naturalization of the parent having
legal custody of the child when there has been
a legal separation of the parents or the
naturalization of the mother if the child was
born out of wedlock and the paternity of the
child has not been established by legitimation;
and if
(4) Such naturalization takes place while such
child is under the age of eighteen years; and
(5) Such child is residing in the United States
pursuant to a lawful admission for permanent
residence at the time of the naturalization of
the parent . . . naturalized under clause (2) or
(3) of this subsection, or thereafter begins to
reside permanently in the United States while
under the age of eighteen years.
The parties agree that Petitioner satisfied the criteria of (a)(4)
and (a)(5).
A. Petitioner’s Gender-Discrimination Claim
Section 1432(a)(3)’s second clause discriminates on the
basis of gender. It grants citizenship upon “the naturalization
of the mother if the child was born out of wedlock and the
paternity of the child has not been established by
legitimation,” but it does not grant citizenship in the converse
scenario: upon the naturalization of the father if the child
was born out of wedlock and the child’s maternity has not
ROY V. BARR 11
been established by legitimation. Although that scenario is
unlikely, it is not impossible. For example, an unmarried
mother could give birth at her home and then leave the baby
on the father’s doorstep. The father could get a DNA test to
confirm his relationship to the baby, but if he had sex with
more than one woman approximately nine months earlier, the
child’s maternity would remain unknown. And, as we
discuss later, the mother could legitimate her relationship to
the child well after the child’s birth.
Petitioner, however, does not challenge the clearly
disparate treatment identified above. Nor could she, because
both her paternity and her maternity were established during
her youth. Instead, she argues that the statute
unconstitutionally discriminates “because it does not contain
any equivalent provision stating that a child automatically
becomes a citizen upon the naturalization of the father if the
child was born out of wedlock and the mother has
relinquished parental rights” or has abandoned the child.
We disagree. Section 1432(a)(3)’s second clause says
nothing about the relinquishment of parental rights or the
abandonment of a child. Rather, it hinges derivative
citizenship on whether a father legitimated his child. A father
who fails to legitimate his out-of-wedlock child might also
abandon the child, but the two actions are not identical. For
example, a father could legitimate his child and then abandon
the child later. Thus, Petitioner’s proposed comparative
group does not align with the classified group “in respects
that are relevant to the [government’s] challenged policy.”
Gallinger, 898 F.3d at 1016.
Petitioner’s circumstances illustrate the disconnect
between the classified group and her proposed comparative
12 ROY V. BARR
group. Even if Petitioner’s parents’ roles in her life had been
reversed—that is, if her mother had naturalized and raised her
in the United States and her father had “abandoned” her—she
still would not have derived citizenship under § 1432(a)(3),
because her father legitimated her. Section 1432(a) provides
three avenues to derivative citizenship for legitimated
children, and none of them “depends on the sex of the parent
(or parents) who naturalize or have custody.” Wedderburn v.
INS, 215 F.3d 795, 802 (7th Cir. 2000).
Under § 1432(a), “[l]egitimated children become citizens
if both parents naturalize, if the surviving parent naturalizes,
or if the parent having ‘legal custody’ naturalizes following
the parents’ ‘legal separation.’” Id. (quoting § 1432(a)(3)).
In other words, Petitioner did not suffer from a gender-based
distinction; she simply did not meet the statute’s criteria. See
Levy v. U.S. Att’y Gen., 882 F.3d 1364, 1367 (11th Cir. 2018)
(per curiam) (listing the conditions under which a legitimated
child would derive citizenship through § 1432(a) and stating
that “[n]one of those conditions turns on gender”); accord
Barthelemy v. Ashcroft, 329 F.3d 1062, 1068 (9th Cir. 2003)
(“[Section 1432(a)(3)] makes no sex-based distinction when
the petitioner has been legitimated.”), overruled in part on
other grounds, as recognized in Mayea-Pulido, 946 F.3d
at 1062.
Petitioner’s proposed remedy also makes clear the legal
infirmity of her equal-protection claim. She suggests that we
should modify the second clause of § 1432(a)(3) to provide
for derivative citizenship upon:
[T]he naturalization of the mother parent with
sole legal custody of the child if the child was
born out of wedlock and the paternity of the
ROY V. BARR 13
child has not been established by legitimation
the other parent has relinquished parental
rights.
Petitioner’s suggestion does not simply correct a gender
disparity—it rewrites the statute entirely. No matter how
preferable her version might be as a policy matter,4 we lack
the power to amend statutes to accommodate policy
preferences. See RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 649 (2012) (explaining
that “the pros and cons” of a particular policy “are for the
consideration of Congress, not the courts”).
The Constitution’s guarantee of equal protection forbids
“governmental decisionmakers from treating differently
persons who are in all relevant respects alike.” Dream Act,
855 F.3d at 966 (quoting Nordlinger v. Hahn, 505 U.S. 1, 10
(1992)). Because Petitioner’s father legitimated her, she does
not resemble, in all relevant ways, persons who derived
citizenship under § 1432(a)(3)’s second clause. Gallinger,
898 F.3d at 1016. We therefore do not apply any level of
scrutiny to the second clause’s gender distinction, much less
the heightened scrutiny that Morales-Santana, 137 S. Ct. at
1690, applied to a different gender distinction, because
4
Congress repealed § 1432 when it enacted the Child Citizenship Act
of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1631, 1632. Under the
Child Citizenship Act, a child born outside the United States derives
citizenship when the child meets certain other conditions (which Petitioner
undisputedly met here) and “[a]t least one parent of the child is a citizen
of the United States, whether by birth or naturalization.” 8 U.S.C.
§ 1431(a). But that rule does not apply retroactively to people (such as
Petitioner) who already had turned 18 when the law took effect in 2001.
Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir. 2001).
14 ROY V. BARR
Petitioner’s gender-discrimination claim fails at the outset,
Gallinger, 898 F.3d at 1016.
B. Petitioner’s Legitimacy-Discrimination Claim
Petitioner’s legitimacy-discrimination claim is largely an
extension of her gender-discrimination claim, but we address
that claim separately here. Petitioner contends that
§ 1432(a)(3)’s use of legitimation (or lack thereof) as a
criterion inherently discriminates on the basis of gender
because a father cannot legitimate a child simply by being
present for the child’s birth. Regardless, because both fathers
and mothers can legitimate a child after the child’s birth,
legitimation is not inherently discriminatory on the basis of
gender.
Consider our earlier example of a hypothetical mother
who gave birth at home and then left her baby on the father’s
doorstep, thus keeping her maternity a mystery. That mother
could reappear later in the child’s life to establish her
maternity by legitimation, whether through a DNA test or
some other mechanism. For instance, in California (where
Petitioner’s father has lived since coming to the United
States), the mother could establish a “parent and child
relationship” by providing “proof of having given birth to the
child.” Cal. Fam. Code § 7610(a).
Now recall the version of § 1432(a)(3)’s second clause
with reversed gender roles, which would grant citizenship
“upon the naturalization of the father if the child was born out
of wedlock and the child’s maternity has not been established
by legitimation.” Reversing the gender roles does not help
Petitioner. Her mother and father both legitimated her when
she was a child, so she does not resemble, in all relevant
ROY V. BARR 15
ways, persons who derived citizenship under § 1432(a)(3)’s
second clause. Gallinger, 898 F.3d at 1016. Again, because
Petitioner is not similarly situated to persons who derived
citizenship under § 1432(a)(3)’s second clause, we do not
apply any level of scrutiny to that clause’s gender or
legitimacy distinction, and Petitioner’s repackaged gender-
discrimination claim still fails. Id.
To the extent that Petitioner raises a legitimacy-
discrimination claim that is distinct from her gender-
discrimination claim, Mayea-Pulido forecloses her claim.
There, we explained that children born to unmarried parents
could obtain derivative citizenship under § 1432(a)(3) “if
[their] parents later married and then legally separated, the
same as a marital child whose parents were married at his
birth but later [legally] separated.” Mayea-Pulido, 946 F.3d
at 1064. If Petitioner’s parents had married at some point
after her birth and then legally separated before she turned 18
(and if her father had sole custody), she would have derived
citizenship from her father under § 1432(a)(3)’s first clause.
Likewise, Petitioner would have derived citizenship from
her father under § 1432(a)’s other subsections if she had met
the relevant criteria: (1) both parents naturalized; or (2) one
parent (her mother) died and the surviving parent (her father)
naturalized. Thus, contrary to Petitioner’s view, the statute
does not impose a categorical bar against unwed fathers
passing citizenship to children born out of wedlock. If
anything, § 1432(a)(3)’s second clause gives children born to
unmarried parents “an extra route to citizenship, one not
enjoyed by legitimate (or legitimated) offspring.”
Wedderburn, 215 F.3d at 802.
16 ROY V. BARR
Petitioner’s constitutional challenge to § 1432(a)(3) fails,
so we cannot grant her derivative citizenship. Accordingly,
because Petitioner is not a citizen of the United States, we
lack jurisdiction to review her final order of removal.
8 U.S.C. § 1252(a)(2)(C).
PETITION DISMISSED.