Wedderburn v. I.N.S.

• Decision Date: 01 June 2000
• Docket Number: No. 99-2241,99-2241
• Citation: 215 F.3d 795
• Parties: (7th Cir. 2000) Kevin Wedderburn, Petitioner, v. Immigration and Naturalization Service, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 795

215 F.3d 795 (7th Cir. 2000)

Kevin Wedderburn, Petitioner, v. Immigration and Naturalization Service, Respondent.

No. 99-2241

In the United States Court of Appeals For the Seventh Circuit

Argued January 5, 2000

Decided June 1, 2000

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

Before Posner, Chief Judge, and Easterbrook and Ripple, Circuit Judges.

Easterbrook, Circuit Judge.

Children born outside the United States, of alien parents, acquire U.S. citizenship automatically if before their eighteenth birthday they move to the United States, and one or both of their parents become U.S. citizens. Section 321(a) of the Immigration and Nationality Act, 8 U.S.C. sec.1432(a). Kevin Wedderburn, who was born in Jamaica of Jamaican parents, contends that he became a citizen on June 2, 1993, four months before his eighteenth birthday, when his father Fitzroy Wedderburn became a naturalized United States citizen. Immigration officials, by contrast, believe that Kevin is not a U.S. citizen because his mother, Julie Hines, remains a citizen of Jamaica. Kevin has been ordered deported because of his criminal record (he was sentenced to six years' imprisonment in 1995 for aggravated sexual assault of a boy under nine years of age), and if Kevin is an alien that criminal conviction not only supports removal but also forecloses all avenues of discretionary administrative relief and judicial review. But a person ordered removed is entitled to review of the questions whether he is an alien, and whether he committed a felony requiring removal. Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997). See also, e.g., Solorzano- Patlan v. INS, 207 F.3d 869 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601 (7th Cir. 1999). Kevin does not deny that his criminal conviction requires removal, if he is an alien. (It is irrelevant for current purposes whether that conviction is best classified under 8 U.S.C. sec.1101(a)(43)(A), as "sexual abuse of a minor", or sec.1101(a)(43)(F), as a "a crime of violence . . . for which the term of imprisonment [is] at least one year".) Thus everything turns on citizenship: if Kevin is a citizen, the order of deportation must be set aside, but if he is not a citizen we must dismiss his petition for want of jurisdiction.

Kevin was born in Jamaica on October 30, 1975. His parents were not married and did not marry each other later--though on June 5, 1986, Fitzroy added his name to Kevin's birth certificate as the father, which under Jamaican law means that Kevin is a legitimate child. Before legitimating Kevin, Fitzroy moved to the United States and married. His wife, Velma, became a U.S. citizen in 1986 and filed a petition for a visa that would allow Kevin to live in the United States. When he was eleven, Kevin came to the United States, but after three years in New York with Fitzroy and Velma, he moved to Illinois to live with his paternal grandmother.

Whether these events made Kevin a citizen depends on sec.321(a), which reads:

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.

Kevin meets the conditions in clauses (4) and (5), so he is a citizen if any one of clauses (1) to (3) applies. Julie Hines has not naturalized, so he does not satisfy clause (1). Nothing in the record suggests that Julie has died, so Kevin does not satisfy clause (2). Clause (3) offers two options. Kevin does not satisfy the latter, involving his mother's naturalization, not only because Julie has not become a U.S. citizen but also because his paternity has been established by legitimation. He does not meet the former option, involving naturalization of the parent with legal custody, because his parents have not undergone "a legal separation" and it is unclear whether Fitzroy had "legal custody" of Kevin at the time. His residence at the time of Fitzroy's naturalization was with his paternal grandmother, so the BIA's conclusion that one parent's permanent physical custody with the other's consent is "legal custody" does not assist Kevin. See Matter of M--, 3 I.&N. Dec. 850 (1950). Kevin does not meet the requirements of sec.321(a).

Kevin asks us to read sec.321(a)(3) to treat him as a citizen notwithstanding his inability to meet the statutory conditions. His argument draws on what he believes is a statutory incongruity. Section 101(c)(1), 8 U.S.C. sec.1101(c)(1), which defines the term "child" for purposes of Title III of the Act (which comprises sec.321), includes legitimated and adopted children in the set eligible for citizenship.

The term "child" means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile . . . if such legitimation or adoption takes place before the child reaches the age of 16 years . . ., and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.

According to Kevin, he is a "child" under this definition, so sec.321(a)(3) should be read to deem him a citizen. The premise of this argument is incorrect; he is not a "child" under sec.101(c)(1), because he was not in Fitzroy's custody at the time of the legitimating event. In June 1986, when Fitzroy legitimated Kevin by adding his name to Kevin's birth certificate, Fitzroy was living in New York, while Kevin was living in Jamaica with one of his grandmothers. But even if Kevin were a "child" under sec.101(c)(1), this would not by itself make him a citizen. Section 101 defines terms; the substantive requirements of citizenship appear elsewhere in the Act. Only with respect to sec.322, 8 U.S.C. sec.1433, which permits a U.S. citizen parent to obtain citizenship for a "child" in his "legal custody," does the definition have independent significance. (Fitzroy has not sought to confer citizenship on Kevin via sec.322.) Both sec.101(c)(1) and sec.321(a) equate legitimated children to legitimate ones. Kevin's problem is not the nature of this equation, but the fact that he does not qualify under sec.321(a) whether he is "illegitimate," "legitimated," or "legitimate." The label does not make a difference, because Julie Hines is alive (we must assume) and has not become a U.S. citizen, and Kevin has never been in his father's "legal custody [after] there has been a legal separation of the parents". Putting sec.101 together with sec.321 does not help Kevin, and appealing to the statutes' spirit, as Kevin does, does not alter the statutes' language.

We may assume, as Kevin insists, that, when sec.321(a) was enacted, the predominant, if not the exclusive, means of legitimating an illegitimate child was the parents' subsequent marriage. When legitimation equals marriage, then a dissolution will produce "legal separation" and "legal custody", so that legitimated children can take full advantage of the first possibility under sec.321(a)(3). When some foreign nations made it possible to legitimate a child without marriage, or indeed abolished the distinction between legitimate and illegitimate children, this created the possibility that the legitimated child could not use sec.321(a)(3)'s first clause. Kevin sees this as a "gap" that we should close; but it is not a proper function of interpretation (as opposed to amendment) to ensure that every development in foreign law has a corresponding benefit under U.S. law. Kevin has the same options he and others like him possessed before Jamaica amended its law in 1976 to treat persons in his position as legitimate--Fitzroy's signature on the birth certificate did more to affect his status as a recognized father than to alter Kevin's status under Jamaican law--the amendment of Jamaican law does not have any significance for the proper interpretation of sec.321(a)(3).

At oral argument, the judges and counsel explored two different, and perhaps more promising, ways of approaching sec.321(a). One possibility is that "legal custody" and "legal separation of the parents" have a technical meaning, perhaps by incorporating Jamaican law, that enables Kevin to satisfy sec.321(a)(3). The other is that Congress acted irrationally, and thus unconstitutionally, by requiring both "legal custody" and "legal separation." The parties submitted post-argument memoranda concerning the first of these possibilities. These memoranda show that Kevin did not raise either line of argument before the Board of Immigration Appeals, or for that matter in his appellate briefs, so they have been waived. But we cover them briefly nonetheless, if only to show that Kevin's deportation is not the result of a blunder by his lawyers.

"Legal custody" and "legal separation of the parents", as words in a federal statute, must take their meaning from federal law. On this both sides agree. But federal law may point to state (or foreign) law as a rule of decision, and this is how the INS has consistently understood these terms. Matter of H--, 3 I.&N. Dec. 742 (1949), concludes that the term "legal separation" means

...