Roy v. Barr, No. 15-72942 (9th Cir. 2020)
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The Ninth Circuit dismissed a petition for review of the BIA's decision upholding petitioner's removal based on criminal convictions. Petitioner argued that 8 U.S.C. 1432(a)(3)'s second clause discriminates by gender and legitimacy and thus violates the Constitution's guarantee of equal protection.
The panel held that petitioner failed to establish an equal protection violation with respect to section 1432(a)(3), the applicable derivative-citizenship statute. In this case, 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 section 1432(a)(3)'s second clause. Therefore, petitioner's constitutional challenge to section 1432(a)(3) failed and she could not be granted derivative citizenship. The panel also held that petitioner's contention under the first clause of section 1432(a)(3) is foreclosed by United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020). Because petitioner is not a citizen of the United States, the panel lacked jurisdiction to review her final order of removal.
Court Description: 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. 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.
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