Barthelemy v. Ashcroft

• Decision Date: 23 May 2003
• Docket Number: No. 01-71529.,01-71529.
• Citation: 329 F.3d 1062
• Parties: Jhonson BARTHELEMY, aka Johnson Barthelemy, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.3d 1062

Jhonson BARTHELEMY, aka Johnson Barthelemy, Petitioner, v. John D. ASHCROFT, U.S. Attorney General, Respondent.

No. 01-71529.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2002.

Filed May 23, 2003.

As Amended June 9, 2003.

Angela M. Bean, Angela M. Bean & Associates, San Francisco, CA, for the petitioner.

Ernesto Molina, Jr., Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before NOONAN, BERZON, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge.

We must decide whether § 321(a) of the Immigration and Nationality Act, now repealed, grants derivative citizenship to Petitioner Jhonson Barthelemy. We hold that it does not. We further reject Barthelemy's constitutional challenges to § 321(a). We hold that a bona fide reason supports the legal separation requirement of § 321(a)(3) and that § 321(a)(3) does not discriminate on the basis of gender, at least as applied to this petition. Barthelemy's petition for review is dismissed.

I

Jhonson Barthelemy appeals a final order of removal issued by the Board of Immigration Appeals (BIA). In 1998, Barthelemy was convicted of unlawful sexual intercourse with a minor, in violation of California Penal Code § 261.5(a). Barthelemy concedes that, as a result of this conviction, he is an aggravated felon. See 8 U.S.C. § 1101(a)(43)(A). Because he is an aggravated felon, Barthelemy is subject to immediate removal from this country unless he can establish that he is a United States citizen. 8 U.S.C. § 1227(a)(2)(A)(iii).

The facts in this petition are not disputed. Barthelemy was born in Port-au-Prince Haiti, in 1978 to Enese Jean-Baptiste and Roger Barthelemy. Neither Roger nor Enese were United States citizens at the time of Barthelemy's birth. Barthelemy does not know, and has never known, his natural mother, Enese. Enese left Barthelemy to the care of his father and paternal grandparents soon after giving birth. Roger and Enese never married.

Roger immigrated to the United States and became a lawful permanent resident in 1986. Thereafter, Roger married Marie, a naturalized United States citizen. Based on a visa petition filed on his behalf by Roger and Marie, Barthelemy entered the United States in 1989 as a lawful permanent resident. At the time, Barthelemy was 11 years old. Marie never adopted Barthelemy.

Roger was naturalized as a United States citizen in 1993 when Barthelemy was 14 years old. Whether Roger's naturalization derivatively conferred United States citizenship on Barthelemy is the issue before us.

II

We do not have jurisdiction to review a criminal alien's final order of removal. 8 U.S.C. § 1252(a)(2)(C). But where, as here, the petitioner claims he is a United States citizen not subject to removal, we have jurisdiction to determine whether the petitioner is an alien or a citizen. 8 U.S.C. § 1252(b)(5)(A); Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir.2001). We must dismiss Barthelemy's petition if we find that he is not a citizen.

No affirmative steps were taken to naturalize Barthelemy; therefore, he has citizenship, if at all, only derivatively through his father. As Barthelemy was born abroad to alien parents, derivative citizenship in this case is governed by Immigration and Nationality Act (INA) § 321(a), 8 U.S.C. § 1432(a), now repealed.¹ In relevant part, § 321(a) provides:

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

(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 last naturalized under clause (1) of this subsection, or 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.

8 U.S.C. § 1432(a) (emphasis added). It is undisputed that Barthelemy meets the conditions set forth in subsections (4) and (5) and is therefore a citizen if subsections (1), (2), or (3) apply. Subsections (1) and (2) do not apply here because only Barthelemy's father—and not his mother—has been naturalized, and no evidence in the record suggests that Barthelemy's mother is deceased. Thus, Barthelemy can only claim derivative citizenship if he satisfies the requirements of § 321(a)(3).

We review de novo the question of law presented. Hughes, 255 F.3d at 757-58. Barthelemy plainly does not qualify for citizenship under the latter clause of § 321(a)(3), which requires "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." (emphasis added).

Based on our review of the statute and case law, and using the usual meanings of the statutory terms, we hold that Barthelemy does not enjoy derivative citizenship under the first clause of § 321(a)(3) because his natural parents never married and thus could not legally separate. See Nehme v. Immigration and Naturalization Serv., 252 F.3d 415, 425-26 (5th Cir.2001) (holding that legal separation under § 321(a)(3) means "a formal, judicial alteration of the marital relationship") (emphasis in original); Wedderburn v. Immigration and Naturalization Serv., 215 F.3d 795, 799-800 (7th Cir.2000) (disregarding petitioner's argument that "legal separation" under § 321(a)(3) means only "not being legally joined"); Charles v. Reno, 117 F.Supp.2d 412, 418 (D.N.J.2000) (noting that § 321(a)(3) requires legal separation, which means that "the separation of the parents must be recognizable legally").²

III

Anticipating our holding that he does not have citizenship under the language of § 321(a), Barthelemy challenges the constitutionality of the provision on two equal protection grounds. First, he argues that § 321(a)(3) irrationally classifies petitioners seeking citizenship based on the former marital status of the petitioners' parents. Next, Barthelemy contends § 321(a)(3) impermissibly discriminates on the basis of gender. We reject both arguments.

A

Our review of Barthelemy's Fifth Amendment equal protection claim that § 321(a) unconstitutionally discriminates on the basis of his parents' former marital status is quite narrow. Congress has nearly plenary power to establish the qualifications for citizenship. U.S. Const. art. I. § 8 ("The Congress shall have Power... To establish an [sic] uniform Rule of Naturalization"); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (emphasizing that "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens") (internal citations and quotations omitted). We therefore must uphold the constitutionality of § 321(a) if a "facially legitimate and bona fide reason" supports the distinction made by the statute. Fiallo, 430 U.S. at 794-95, 97 S.Ct. 1473. We have equated this standard of review with rational basis review. See Ablang v. Reno, 52 F.3d 801, 804 (9th Cir.1995); Wauchope v. United States Dept. of State, 985 F.2d 1407, 1414 n. 3 (9th Cir.1993).

Reading § 321(a) in its entirety, we think that Congress generally intended to provide automatic citizenship to children born abroad of alien parents only after the naturalization of both biological parents. This policy is rational for at least a few reasons, but we need only discuss one rationale here: the protection of parental rights. If United States citizenship were conferred to a child where one parent naturalized, but the other parent remained an alien, the alien's parental rights could be effectively extinguished. See Fierro v. Reno, 217 F.3d 1, 6 (1st Cir.2000) (noting that § 321(a) presumably demonstrates the congressional intent to protect children from "separation from the parent having legal custody during the child's minority"); Wedderburn, 215 F.3d at 800 ("Both the child and the surviving but non-custodial [alien] parent may have reasons to prefer the child's original citizenship, which may affect obligations such as military service and taxation."). Thus, § 321(a) prevents the naturalizing parent from usurping the parental rights of the alien parent.

Nonetheless, recognizing that this general rule of derivative citizenship might sweep too broadly, Congress carved out three additional avenues to citizenship in § 321 that apply where only one parent naturalizes. If the alien parent has deceased, or if the natural father has not legitimated his child, and the mother naturalizes, citizenship for the child is possible. INA § 321(a)(2)-(3), 8 U.S.C. § 1432(a)(2)-(3). Citizenship is also provided to "[a] child born outside the United States of alien parents ... upon ... [t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents...." INA § 321(a)(3), 8 U.S.C. § 1432(a)(3).

Barthelemy challenges the constitutionality of this latter provision. Essentially, Barthelemy argues that the legal separation requirement of § 321(a)(3) is irrational. Barthelemy contends that the clause impermissibly distinguishes between those children born of parents who never married and those born of parents who at one time were married and then legally separated.³ We disagree. The legal separation requirement helps protect the parental rights of the alien parent, and is...