Grant v. U.S. Dept. of Homeland Sec.
| Decision Date | 17 July 2008 |
| Docket Number | Docket No. 05-4614-ag. |
| Citation | 534 F.3d 102 |
| Parties | Otis GRANT, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Otis Grant, Beacon, NY, pro se Petitioner.
Glenn T. Suddaby, United States Attorney for the Northern District of New York, William F. Larkin, Assistant United States Attorney, Syracuse, NY, for Respondent.
Before: CARDAMONE and POOLER, Circuit Judges, and KEENAN, District Judge.*
Petitioner Otis Grant, a native and citizen of Jamaica, seeks review of a June 18, 2001, order of the Board of Immigration Appeals ("BIA") affirming the January 11, 2001, order of Immigration Judge ("IJ") Mitchell Levinsky, directing Grant's removal from the United States. In re Otis Kirk Grant, No. A35 770 632 (B.I.A. June 18, 2001), aff'g In re Otis Kirk Grant, No. A35 770 632 (Immig.Ct. Jan. 11, 2001). Most of the arguments he raises already have been rejected by this circuit and are addressed in an accompanying summary order. Here we address the constitutionality of former 8 U.S.C. § 1432(a) (repealed 2000), which provided that an alien born out of wedlock automatically derived citizenship based on the naturalization of his or her mother before the alien turned eighteen but could obtain derivative citizenship based on the naturalization of his or her father before the alien turned eighteen only if the child had been legitimated. Because we have not previously decided the constitutionality of former Section 1432(a), we address that question briefly and find no constitutional defect.1
We set out only those portions of the history of this case that are relevant to understanding the issue before us. Grant was admitted to the United States as a lawful permanent resident in May 1978. On May 20, 1996, a New York court convicted Grant of murder in the second degree, criminal possession of a weapon, and other offenses. On May 5, 2000, the former Immigration and Naturalization Service placed Grant in removal proceedings by service of a notice to appear charging that (1) he had been convicted of an aggravated felony and was therefore removable pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), and (2) he had been convicted of possession of a weapon that was a firearm and was therefore removable under INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).
At his first appearance before IJ Levinsky in August 2000, Grant claimed that he had obtained derivative citizenship through his father. The IJ adjourned the hearing three times to allow Grant to obtain an attorney and evidence of derivative citizenship. During a November 2000 appearance, Grant admitted the charges in the notice to appear. Grant also informed the IJ that his parents were never married, his mother became a citizen after Grant turned eighteen, and his father became a citizen before Grant's eighteenth birthday.
On his final hearing date, January 11, 2001, Grant produced affidavits from his father and mother in which they indicated that Grant's father had played an active part in Grant's life, provided some financial support to Grant, and visited him frequently. However, Grant testified that his father did not have legal custody.
In an oral decision, the IJ held that (1) Grant was deportable as charged; (2) he was not eligible for relief under INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996), and INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), because, even though his conviction occurred before the repeal of Section 212(c), Grant, unlike the respondent in St. Cyr, had been convicted by a jury; (3) Grant could not apply for adjustment of status because his murder conviction rendered him ineligible for a waiver of inadmissibility pursuant to INA § 212(h), 8 U.S.C. § 1182(h); (4) Grant was also ineligible for Section 212(c) relief because he had served more than five years' imprisonment; and (5) Grant had not attained derivative citizenship from his father because his father never had legal custody.
On appeal to the BIA, Grant argued inter alia that he had obtained derivative citizenship from his father. Incident to this argument, he contended that Section 1432(a) was unconstitutional insofar as it allowed an alien to obtain derivative citizenship through his mother without proof of maternity but did not make the same path to citizenship available to alien children of naturalized fathers.
As to Grant's claim of derivative citizenship, the BIA held that "[i]n order for a child to derive United States citizenship . . ., proof is required that the naturalized parent retained legal custody of the child," and Grant had failed to demonstrate that his father had legal custody. Because the Board's decision was premised on the custody requirement, it declined to reach the constitutionality of the gender distinction embodied in former Section 1432(a). In addition, the BIA rejected each of the additional bases on which Grant sought relief from removal.
In July 2001, Grant filed a habeas corpus petition in the United States District Court for the Northern District of New York. On June 14, 2004, Magistrate Judge David E. Peebles recommended that the petition be denied. Before the district court could act on the recommendation, Congress enacted the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B.,119 Stat. 231, 302. Section 106(a) of the REAL ID Act provides that a petition for review to the court of appeals is the exclusive method for challenging an administrative order of removal, deportation, or exclusion, and Section 106(c) provides that any petitions pending in district court must be transferred to the appropriate court of appeals. 119 Stat. at 310-11, 8 U.S.C. § 1252(a) & note. Accordingly, the district court transferred Grant's petition to this court.
Former Section 1432(a) provided that a "child born outside of the United States of alien parents" who entered the United States acquired derivative citizenship if he or she met pertinent portions 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.2
Thus, an alien born out of wedlock can achieve derivative citizenship automatically, based on his or her mother's naturalization, before the alien becomes eighteen, if he has not been legitimated, but must show, at a minimum, that he has been legitimated in order to achieve citizenship based on the father's citizenship. Grant contends that this distinction denies him equal protection.
The BIA declined to address the constitutionality of the gender distinction and instead relied on Section 1432(a)'s "legal custody" requirement, which does not embody a gender distinction. However, Section 1432(a) is somewhat ambiguous both as to (1) whether a legitimated alien must also show that his father had legal custody, and as to (2) whether a child who has been legitimated and lives with his non-citizen father can obtain citizenship based on his mother's naturalization. On one hand, it refers to "legal custody," in the context of a "legal separation," which ordinarily occurs only when there has been a legal marriage. See generally Brissett v. Ashcroft, 363 F.3d 130, 133-34 (2d Cir.2004). This suggests that the "legal custody" requirement applies only in the context of a legal marriage. On the other hand, while stating that the mother's naturalization triggers derivative citizenship for a child born out of wedlock provided that the father has not legitimated the child, the section does not explicitly provide that the father's naturalization and legitimation of the child create derivative citizenship. If the father must show both legitimation and legal custody, but the mother need only show birth, there may be a serious constitutional problem as it may be virtually impossible for the natural father of an alien child to perform any act that would give the child derivative citizenship. See Tuan Anh Nguyen v. INS, 533 U.S. 53, 70-71, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001) ().
It appears that the BIA assumed that both legal custody and legitimation were required because it held that (1) Grant did not become a citizen because his father did not have legal custody and (2) therefore the court did not need to reach the equal protection claim based on the legitimation requirement applicable to fathers. To avoid the serious constitutional and statutory interpretation problems described in the last paragraph, we assume, without deciding, that naturalization of the father and legitimation of the child before the child reached the age of eighteen would create derivative citizenship. Thus, we address Grant's argument that the requirement that the father legitimate his alien child, while the mother need not prove a biological relationship in a similar manner, is unconstitutional.3
We are bound by Tuan Anh Nguyen to reject that challenge. In Tuan Anh Nguyen, the Court considered an equal protection challenge to 8 U.S.C. §...
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