Lake v. Reno

• Decision Date: 31 March 2000
• Docket Number: Docket No. 99-4125
• Citation: 226 F.3d 141
• Parties: (2nd Cir. 2000) Frederick A. Lake, Petitioner, v. Janet Reno, Attorney General of the United States, Respondent. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 141

226 F.3d 141 (2nd Cir. 2000)

Frederick A. Lake, Petitioner, v. Janet Reno, Attorney General of the United States, Respondent.

Docket No. 99-4125

August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 31, 2000

Decided: September 12, 2000

Appeal from the order of the Board of Immigration Appeals affirming the order of the Immigration Judge ordering petitioner's removal, and dismissing petitioner's appeal.

Reversed.

JOHN D.B. LEWIS, New York, NY, Jonathan S. Franklin, Lorane F. Hebert, Hogan & Hartson, Washington, D.C., Claudia Slovinsky, New York, NY, Lucas Guttentag, Immigrants' Rights Project, New York, NY, Sara L. Mandelbaum, American Civil Liberties Union, New York, NY, for Petitioner.

DIOGENES P. KEKATOS, Assistant United States Attorney, Mary Jo White, United States Attorney, Southern District of New York, Gideon A. Schor, Assistant United States Attorney, New York, NY, for Respondent.

ANTHONY M. RADICE, Deborah H. Isser, Mark David McPherson, Morrison & Foerster, New York, NY, Jonathan Band, Morrison & Foerster, Washington, D.C., Martha F. Davis, NOW Legal Defense and Education Fund, New York, NY, for Amicus Curiae NOW Legal Defense and Education Fund.

Before: OAKES, WALKER, and KEITH,^* Circuit Judges.

[CORRECTED OPINION]

JOHN M. WALKER, JR., Circuit Judge:

Petitioner Frederick A. Lake appeals from an order of the Board of Immigration Appeals ("BIA"), affirming the decision by the Immigration Judge ("IJ") that denied Lake's request for termination of removal proceedings and ordered his removal. Lake, who was born abroad and out of wedlock to an American father and an alien mother, claimed United States citizenship from birth under section 301(7) of the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1401(7) (1952), on the basis that his father was a United States citizen at the time of Lake's birth, and had met the residency requirements of the statute. Under section 309(a) of the INA, 8 U.S.C. § 1409(a) (1952), in order to confer citizenship upon an illegitimate child born abroad, a citizen father must establish his child's paternity by legitimation before the child reaches the age of 21. This requirement is not imposed upon citizen mothers. Lake, on behalf of his father, challenged section 309(a) as violative of the equal protection component of the Fifth Amendment's Due Process Clause because it burdened United States citizen fathers but not United States citizen mothers in establishing American citizenship for their foreign-born offspring. The BIA held that it lacked jurisdiction to consider this claim. We hold, first, that Lake has standing to raise his father's equal protection challenge, and, second, that section 309(a), as it applies to Lake's father, violates the constitutional requirement of equal protection of the laws. We therefore reverse the judgment of the BIA.

BACKGROUND

Lake was born in Jamaica in 1953 to Joseph Lake, a United States citizen, and Edith White, a Jamaican citizen. Although his parents never married, Lake's father had intermittent contact with him as a child, referred to Lake as his son to his other children, and listed him as one of his children in the family Bible. When Lake was 33 years old, in 1987, Lake moved to the United States as a lawful permanent resident married to a United States citizen. In 1991, he was convicted of armed robbery in New York state court, and sentenced to a minimum of six years' imprisonment. Lake was released on parole in 1997, the same year his father died.

In April 1998, the Immigration and Naturalization Service ("INS") began removal proceedings against Lake under 8 U.S.C. § 1227(a)(2)(A)(iii) (1999), as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (1999). At a hearing before the IJ, Lake denied that he was a deportable alien, claiming United States citizenship through his father. The government did not dispute that Joseph Lake was a United States citizen or that he was Lake's father. The IJ determined that, while there were indications that Lake's father had acknowledged paternity as to Lake, Lake's father had failed to do so in writing under oath as required by INA section 309(a). Thus, the IJ concluded that Lake was subject to removal because he had failed to show that his father had met the statutory requirement of establishing Lake's paternity by legitimation. The IJ also rejected Lake's equal protection challenge. On appeal, the BIA found that, assuming that Lake had established paternity, he had no claim to citizenship because he had not satisfied the conditions of section 309(a). The BIA rejected, as beyond its jurisdiction, Lake's two constitutional challenges: the unequal treatment of illegitimate children claiming citizenship through their fathers, and the unavailability of a waiver provision for lawful permanent residents under section 212(h) of the INA.

DISCUSSION

On appeal, Lake renews his argument that section 309(a) of the INA violates the constitutional guarantee of equal protection. In the alternative, Lake argues that if his citizenship claim is rejected, he should be granted relief on the basis that the application of section 212(h) of the INA, 8 U.S.C. § 1182(h) (1999), denies equal protection to lawful permanent residents. Because we reverse on the first ground, we do not need to consider the second.

Section 309 of the INA, which we will examine in some detail momentarily, provides that, subject only to a one-year continuous residency requirement applicable to the citizen mother, conferral of citizenship by a citizen mother is automatic at birth. See 8 U.S.C. § 1409(c) (1952). However, conferral of citizenship by a citizen father occurs only if the father takes the affirmative step of establishing paternity by legitimation before his child's 21st birthday. See id. § 1409(a). Thus, if Lake's mother had been the citizen instead of his father, Lake would automatically be a United States citizen and not subject to deportation. Because this is so, Lake argues, the statute establishes a facially discriminatory classification based on gender that cannot withstand heightened scrutiny under United States v. Virginia, 518 U.S. 515, 532-34 (1996).

In opposition, the government asserts that (1) Lake has no standing to raise the equal protection rights of his father; (2) even if Lake has standing, section 309(a) passes constitutional muster: (a) easily under the deference to Congress accorded to immigration statutes under Fiallo v. Bell, 430 U.S. 787 (1977), or (b) even under the heightened standard applicable to gender discrimination cases in the non-immigration context; and (3) regardless of the constitutionality of section 309(a), no remedy is available because only Congress and not the courts can confer citizenship. We examine each of these contentions in turn.

Like the proverbial 800-pound gorilla, a Supreme Court decision sits squarely in the middle of this case. In Miller v. Albright, 523 U.S. 420 (1998), the Supreme Court faced a nearly identical challenge to the current version of section 309. The Court fragmented, with the justices writing five separate opinions. Six justices accepted arguments of the government, but not the same arguments. Three justices held section 309 to be unconstitutional and two more said they would agree with those three, but that the plaintiff did not have standing to make the relevant constitutional challenge under the circumstances of that case. The precise arguments advanced by the parties here were made in Miller. On the facts of Miller, the Court did not hold section 309 unconstitutional; however, after analyzing and parsing the opinions of the justices in Miller as the law of our circuit suggests we should, we are convinced that the Court would have reached a different result had this case been before it. But before we dissect Miller, we turn to the relevant statutory provisions.

The Relevant Statutory Provisions

The parties agree that the version of the INA that applies to Lake is the one that was in effect in 1953, the year of his birth. See Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990) ("The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth."). For equal protection purposes, the earlier and current versions of the statute are indistinguishable, because both place greater burdens on the citizen father than on the citizen mother. Section 301 sets forth which persons shall be nationals and citizens of the United States at birth. Such persons include:

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.

8 U.S.C § 1401(a)(7) (1952).¹

The statutory provision that is attacked in this case, section 309(a), applies specifically to children who are born out of wedlock to citizen fathers and non-citizen mothers. Enacted in 1952, it states in relevant part:

The provisions of paragraphs (3)-(5) and (7) of section 1401(a) of this title . . . shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

8 U.S.C. § 1409(a) (1952).² In contrast, section 309(c), which applies to citizen mothers whose children are born abroad to non-citizen fathers, provides that:

a person born . . . outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United...