Smart v. Ashcroft

• Decision Date: 09 March 2005
• Docket Number: No. 02-4505.,02-4505.
• Citation: 401 F.3d 119
• Parties: Andre Camille SMART, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 119

401 F.3d 119

Andre Camille SMART, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-4505.

United States Court of Appeals, Second Circuit.

Argued December 15, 2004.

Decided March 9, 2005.

Daniel M. Pell, Esq. (Elyana Tarlow, Esq., on the brief), York, PA, for Petitioner.

Michael C. James, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Sara L. Shudofsky, Assistant United States Attorney, on the brief), New York, NY, for Respondent.

Before: WALKER, Chief Judge, SACK and HALL, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Andre Camille Smart petitions for review of a September 5, 2002, order of the Board of Immigration Appeals ("BIA"), summarily affirming an order of removal issued against him. In his petition, Smart argues that former section 321 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1432 (repealed 2000), the derivative citizenship statute applicable to foreign-born children of alien parents who become naturalized citizens, discriminates against him because he is adopted, in violation of the equal protection guarantee contained in the Due Process Clause of the Fifth Amendment to the U.S. Constitution. Because 8 U.S.C. § 1432's treatment of adopted children is rationally related to a legitimate government interest, we hold that the statute does not unconstitutionally discriminate against Smart, and deny his petition.

BACKGROUND

Smart was born in Jamaica in 1982. In July 1988, while residing in Jamaica, he was adopted by Daphne and Horace McLean. Daphne McLean had become a U.S. citizen through naturalization approximately a year earlier, in August 1987; Horace McLean was naturalized several months after Smart's adoption, in January 1989. Smart did not reside with either parent at the time each was naturalized in the United States. In September 1989, however, Smart was admitted to the United States as a lawful permanent resident, and took up residence with his adoptive parents. Twelve years later, in 2001, he was convicted upon a guilty plea in New York state court of attempted robbery in the second degree, and sentenced to a determinate term of two years imprisonment. In May 2001, three months after his conviction, the Immigration and Naturalization Service ("INS") served Smart with a Notice of Hearing, charging him as removable pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for an aggravated felony, as that term is defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

At his hearing before the immigration judge ("IJ"), Smart's sole defense to removal was that he had derived U.S. citizenship from his adoptive parents, both of whom were naturalized before Smart's eighteenth birthday, and that therefore he could not be deported as a criminal alien. Smart acknowledged that, on its face, the statutory provision under which he was claiming derivative citizenship, former 8 U.S.C. § 1432, precluded him, as a foreign-born child of alien adoptive parents, from achieving derivative citizenship because he was not residing with his adoptive parents in the United States at the time they were naturalized. Smart contended, however, that the statute unconstitutionally denied him equal protection of the laws because it treats adopted children and biological children differently. He urged the IJ to hold as much and to deem him a citizen because he had satisfied the statutory requirements applicable to foreign-born biological children of alien parents. The IJ concluded that constitutional issues were beyond his jurisdiction and ordered Smart removed.

The BIA affirmed the IJ's order without opinion. Smart timely petitioned this court for review, asserting a claim of U.S. nationality as a bar to his removal.

DISCUSSION

While we do not ordinarily have jurisdiction to review, on direct petition, a final order of removal based on an alien's conviction for an aggravated felony, see 8 U.S.C. § 1252(a)(2)(C), we may review such an order when the alien challenges the applicability of this limitation to our jurisdiction, see Drakes v. Ashcroft, 323 F.3d 189, 190-91 (2d Cir.2003). Here, because Smart claims that he is not an alien, but instead a U.S. citizen and thus not subject to removal under the statute, the jurisdictional inquiry "merges" with the merits of Smart's claim. See id.

Former 8 U.S.C. § 1432, the statute that Smart concedes controls his case, governs derivative citizenship for "a child born outside the United States of alien parents," linking the child's claim of citizenship to the naturalization of the child's parents. Under subsection (a), a foreign-born biological child of alien parents becomes a U.S. citizen upon the naturalization of both his parents, if such naturalization takes place before the child turns eighteen and either (1) the child is residing in the United States pursuant to a lawful admission of permanent residence at the time of the naturalization of the parent last naturalized, or (2) thereafter begins to reside permanently in the United States while under the age of eighteen. However, 8 U.S.C. § 1432(b), the subsection applicable to Smart, provides that where the foreign-born child is adopted by alien parents, derivative citizenship under the terms of subsection (a) requires additionally that the adopted child be "residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission of permanent residence." (emphasis added).

Former 8 U.S.C. § 1432, then, establishes different requirements for obtaining derivative citizenship for a foreign-born biological child of alien parents, from those applicable to a similarly situated child who is adopted. The relevant difference in Smart's case is that while biological children under the age of eighteen can move to the United States after their parents have become naturalized and still achieve derivative citizenship, adopted children cannot; foreign-born adopted children must reside "in the United States at the time of naturalization" of their adoptive parents, in the custody of their adoptive parents. Because Smart was not residing with his adoptive parents in the United States at the time they were naturalized he cannot claim derivative citizenship under the terms of former 8 U.S.C. § 1432.

Former 8 U.S.C. § 1432 was repealed in 2000 by the Child Citizenship Act ("CCA"), 8 U.S.C. § 1431. The CCA simplified the statutory regime governing derivative citizenship. It allows a child to achieve derivative citizenship where only one parent is a U.S. citizen, and eliminates the requirement that adopted children reside with their adoptive parents at the time of their naturalization, although it still imposes certain limitations relevant only to adopted children. See 8 U.S.C. § 1431(b) ("Subsection (a) of this section shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 1101(b)(1) of this title."). The CCA changes do not benefit Smart because the CCA is...