Rajeshree Roy v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAJESHREE EUNICE ROY, AKA No. 15-72942

Rajeshree Eunice Willis,

Petitioner, Agency No.

A038-791-594

v.

WILLIAM P. BARR, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 28, 2020

San Francisco, California

Filed June 4, 2020

Before: J. Clifford Wallace, Ronald Lee Gilman,*

and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

*

The Honorable Ronald Lee Gilman, United States Circuit Judge for

the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 ROY V. BARR

SUMMARY**

Immigration

Dismissing Rajeshree Roy’s petition for review of a

decision of the Board of Immigration Appeals, the panel

concluded that Petitioner failed to establish an equal

protection violation with respect to 8 U.S.C. § 1432(a)(3), the

applicable derivative-citizenship statute.

Petitioner was born in Fiji in 1974 to two Fijian citizens

who never married. In 1983, her father naturalized, and her

mother formally relinquished parental rights and gave full

custody to the father. In 1984, Petitioner entered the United

states as a lawful permanent resident, but was later charged

as removable based on criminal convictions. She moved to

terminate proceedings, challenging the constitutionality of

8 U.S.C. § 1432(a)(3). An immigration judge denied the

motion, and the BIA dismissed Petitioner’s appeal.

Before this court, Petitioner argued that the second clause

of § 1432(a)(3) discriminates by gender and legitimacy and

thus violates the Constitution’s guarantee of equal protection.

The panel noted that the court generally lacks jurisdiction to

review a final order of removal against a non-citizen whose

commission of a certain type of crime rendered her

removable, 8 U.S.C. § 1252(a)(2)(C), but that the court

retains jurisdiction to review legal questions, including

whether § 1252(a)(2)(C)’s jurisdictional bar applies.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ROY V. BARR 3

The panel concluded that Petitioner’s gender-

discrimination claim failed because she was not similarly

situated to persons who derived citizenship under

§ 1432(a)(3)’s second clause. The panel explained that the

clause discriminates on the basis of gender because it grants

citizenship upon “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,” but does not grant

citizenship in the converse scenario: upon the naturalization

of the father if the child was born out of wedlock and the

child’s maternity has not been established by legitimation.

The panel noted that Petitioner did not, and could not,

challenge this clearly disparate treatment because both her

paternity and maternity were established during her youth.

However, Petitioner argued that the clause discriminates

because it does not contain an equivalent provision stating

that a child derives citizenship upon the naturalization of the

father where the child was born out of wedlock, and the

mother relinquished paternal rights or gave up the child. The

panel rejected this argument, explaining that the second

clause says nothing about the relinquishment of parental

rights or the abandonment of a child; rather, it hinges on

whether a father legitimated his child. Thus, the panel

concluded that Petitioner did not suffer from a gender-based

distinction; she simply did not meet the statute’s criteria.

The panel also rejected Petitioner’s legitimacy-

discrimination claim. Petitioner contended that

§ 1432(a)(3)’s use of legitimation as a criterion inherently

discriminates on the basis of gender because a father cannot

legitimate a child simply by being present for the child’s

birth. However, the panel concluded that, because both

fathers and mothers can legitimate a child after the child’s

4 ROY V. BARR

birth, legitimation is not inherently discriminatory. Further,

the panel concluded that Petitioner was not similarly situated

to a person who derived citizenship under the clause because

both her parents had legitimated.

To the extent that Petitioner raised a legitimacy-

discrimination claim based on the first clause of § 1432(a)(3),

which grants citizenship to a child upon naturalization of the

parent with legal custody when there has been a legal

separation of the parents (and therefore does not provide

citizenship where the parents were never married), the panel

observed that this court’s decision United States v. Mayea-

Pulido, 946 F.3d 1055 (9th Cir. 2020), foreclosed such a

challenge.

Accordingly, because Petitioner is not a United States

citizen, the panel concluded that it lacked jurisdiction to

review her final order of removal.

COUNSEL

Delanie Grewe (argued), Certified Law Student; Holly S.

Cooper (argued) and Michael Benassini, Supervising

Attorneys, U.C. Davis School of Law, Immigration Law

Clinic, Davis, California; Kasdin M. Mitchell (argued), Erin

E. Murphy, and Michael D. Lieberman, Kirkland & Ellis

LLP, Washington, D.C.; for Petitioner.

Tim Ramnitz (argued) and Laura M.L. Maroldy, Attorneys;

Shelley R. Goad, Assistant Director; Joseph H. Hunt,

Assistant Attorney General; Office of Immigration Litigation,

ROY V. BARR 5

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

Lisa Weissman-Ward, Jayashri Srikantiah, and Brittany

Benjamin, Stanford Law School, Immigrants’ Rights Clinic,

Stanford, California, for Proposed Intervenor.

OPINION

GRABER, Circuit Judge:

Petitioner Rajeshree Roy challenges her pending removal

to Fiji. Petitioner contends that, as a result of her father’s

naturalization in 1983, she should have become a United

States citizen automatically when she was admitted to the

United States as a permanent resident the next year. That did

not happen.

The applicable derivative-citizenship statute, former

8 U.S.C. § 1432(a)(3),1 contains two clauses. The first clause

grants citizenship to a child upon the “naturalization of the

parent having legal custody of the child when there has been

a legal separation of the parents.” Id. We upheld that clause

as constitutional in United States v. Mayea-Pulido, 946 F.3d

1055 (9th Cir. 2020).

1

We assess claims of derivative citizenship “under the law in effect

at the time the critical events . . . occurred.” Ayala-Villanueva v. Holder,

572 F.3d 736, 738 (9th Cir. 2009) (quoting Minasyan v. Gonzales,

401 F.3d 1069, 1075 (9th Cir. 2005)). All citations to § 1432 in this

opinion refer to the version in effect in 1984.

6 ROY V. BARR

Section 1432(a)(3)’s second clause grants citizenship to

a child upon “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.” Petitioner argues that this

clause discriminates by gender and legitimacy and thus

violates the Constitution’s guarantee of equal protection.

Because Petitioner’s paternity and maternity were both

established when she was a child, she is not similarly situated

to persons who derived citizenship under § 1432(a)(3)’s

second clause. Thus, her constitutional challenge fails.

Accordingly, because Petitioner is not a United States citizen,

we dismiss the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was born in Fiji in 1974 to two Fijian citizens.

Her parents had four children together, but they never

married. Petitioner’s mother moved to Australia in 1975, and

her father immigrated lawfully to the United States soon

after. Petitioner remained in Fiji with her paternal

grandmother for nearly a decade.

In 1983, Petitioner’s father became a naturalized United

States citizen. Through proceedings in Australia, Petitioner’s

mother formally relinquished her parental rights over

Petitioner and gave full custody to Petitioner’s father.

Petitioner’s father then filed a visa application for Petitioner

to live with him in the United States. The parties agree that

Petitioner’s paternity was legitimated at some point before

she turned 18, either because her father’s name appeared on

ROY V. BARR 7

her birth certificate (along with her mother’s name) or

because her father identified her as his daughter on the visa

application. Petitioner entered the United States as a lawful

permanent resident in 1984; her father raised her from that

point forward with minimal involvement from her mother,

who still lives in Australia.

In 1991, Petitioner was convicted of nine criminal

charges, including assault and battery. She served a 14-year

sentence for those convictions, which she concedes would

render a non-citizen removable from the United States. In

2011, Petitioner was convicted of shoplifting. The

government commenced removal proceedings upon her

release from prison in 2014.

Petitioner moved to terminate the removal proceedings,

arguing that she should have derived citizenship from her

father. Specifically, Petitioner argued that § 1432(a)(3)

unconstitutionally fails “to recognize the rights of fathers who

act as sole caretakers for their out-of-wedlock children.” An

immigration judge denied Petitioner’s motion to terminate

because he lacked jurisdiction to address her constitutional

claim. Likewise, the Board of Immigration Appeals

dismissed Petitioner’s appeal because it lacked jurisdiction to

consider her constitutional claim. Sola v. Holder, 720 F.3d

1134, 1135 (9th Cir. 2013) (per curiam). Petitioner timely

sought our review.

8 ROY V. BARR

JURISDICTION AND STANDARD OF REVIEW2

Although we generally lack jurisdiction to review a final

order of removal against a non-citizen whose commission of

a certain type of crime rendered her removable, 8 U.S.C.

§ 1252(a)(2)(C), we retain jurisdiction under § 1252(a)(2)(D)

to review legal questions, including whether

§ 1252(a)(2)(C)’s jurisdictional bar applies. Here, because

there is no genuine dispute of material fact, we may

determine Petitioner’s citizenship “as a matter of law.”

Mustanich v. Mukasey, 518 F.3d 1084, 1087 (9th Cir. 2008)

(citing § 1252(b)(5)(A)). We review de novo legal and

constitutional questions arising from removal proceedings.

Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).

DISCUSSION

To prevail on her equal-protection claim, Petitioner “must

show that a class that is similarly situated has been treated

disparately.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957,

2

Contrary to the government’s view, Petitioner has standing to

challenge § 1432(a)(3)’s constitutionality. Specifically, the alleged

constitutional violation, if it existed, would be redressable. We have held

that courts may grant citizenship “as a remedy to rectify constitutional

violations.” Brown v. Holder, 763 F.3d 1141, 1149 (9th Cir. 2014). See

also Wauchope v. U.S. Dep’t of State, 985 F.2d 1407, 1418 (9th Cir. 1993)

(explaining that an award of citizenship falls within “the traditional

authority of the courts to remedy equal protection violations by extending

the benefits of a discriminatory statute to a disfavored class”). And the

Supreme Court has affirmed the addition of new text to a statute as a

remedy “to render [an unconstitutional] program gender neutral.”

Califano v. Westcott, 443 U.S. 76, 93 (1979).

ROY V. BARR 9

966 (9th Cir. 2017) (internal quotation marks omitted).3 In

analyzing Petitioner’s claim, we first “identify the

[government’s] classification of groups” in the statute. Id.

(quoting Country Classic Dairies, Inc. v. Milk Control

Bureau, 847 F.2d 593, 596 (9th Cir. 1988)). After identifying

a “classified group,” we search for a comparative group

“composed of individuals who are similarly situated to those

in the classified group in respects that are relevant to the

[government’s] challenged policy.” Gallinger v. Becerra,

898 F.3d 1012, 1016 (9th Cir. 2018). “If the two groups are

similarly situated, we determine the appropriate level of

scrutiny and then apply it.” Id. (emphasis added).

Section 1432(a) provides (with emphasis added to the

challenged clause):

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

3

Petitioner challenges federal legislation, so the “applicable equality

guarantee” comes from the Fifth Amendment’s Due Process Clause rather

than the Fourteenth Amendment’s Equal Protection Clause. Sessions v.

Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017). The Fifth

Amendment prohibits “discrimination that is so unjustifiable as to be

violative of due process.” Id. (quoting Weinberger v. Wiesenfeld,

420 U.S. 636, 638 n.2 (1975)). Despite the textual differences between

the two amendments, the “approach to Fifth Amendment equal protection

claims has always been precisely the same as to equal protection claims

under the Fourteenth Amendment.” Id. (quoting Weinberger, 420 U.S.

at 638 n.2).

10 ROY V. BARR

(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 . . . 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.

The parties agree that Petitioner satisfied the criteria of (a)(4)

and (a)(5).

A. Petitioner’s Gender-Discrimination Claim

Section 1432(a)(3)’s second clause discriminates on the

basis of gender. It grants citizenship upon “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,” but it does not grant citizenship in the converse

scenario: upon the naturalization of the father if the child

was born out of wedlock and the child’s maternity has not

ROY V. BARR 11

been established by legitimation. Although that scenario is

unlikely, it is not impossible. For example, an unmarried

mother could give birth at her home and then leave the baby

on the father’s doorstep. The father could get a DNA test to

confirm his relationship to the baby, but if he had sex with

more than one woman approximately nine months earlier, the

child’s maternity would remain unknown. And, as we

discuss later, the mother could legitimate her relationship to

the child well after the child’s birth.

Petitioner, however, does not challenge the clearly

disparate treatment identified above. Nor could she, because

both her paternity and her maternity were established during

her youth. Instead, she argues that the statute

unconstitutionally discriminates “because it does not contain

any equivalent provision stating that a child automatically

becomes a citizen upon the naturalization of the father if the

child was born out of wedlock and the mother has

relinquished parental rights” or has abandoned the child.

We disagree. Section 1432(a)(3)’s second clause says

nothing about the relinquishment of parental rights or the

abandonment of a child. Rather, it hinges derivative

citizenship on whether a father legitimated his child. A father

who fails to legitimate his out-of-wedlock child might also

abandon the child, but the two actions are not identical. For

example, a father could legitimate his child and then abandon

the child later. Thus, Petitioner’s proposed comparative

group does not align with the classified group “in respects

that are relevant to the [government’s] challenged policy.”

Gallinger, 898 F.3d at 1016.

Petitioner’s circumstances illustrate the disconnect

between the classified group and her proposed comparative

12 ROY V. BARR

group. Even if Petitioner’s parents’ roles in her life had been

reversed—that is, if her mother had naturalized and raised her

in the United States and her father had “abandoned” her—she

still would not have derived citizenship under § 1432(a)(3),

because her father legitimated her. Section 1432(a) provides

three avenues to derivative citizenship for legitimated

children, and none of them “depends on the sex of the parent

(or parents) who naturalize or have custody.” Wedderburn v.

INS, 215 F.3d 795, 802 (7th Cir. 2000).

Under § 1432(a), “[l]egitimated children become citizens

if both parents naturalize, if the surviving parent naturalizes,

or if the parent having ‘legal custody’ naturalizes following

the parents’ ‘legal separation.’” Id. (quoting § 1432(a)(3)).

In other words, Petitioner did not suffer from a gender-based

distinction; she simply did not meet the statute’s criteria. See

Levy v. U.S. Att’y Gen., 882 F.3d 1364, 1367 (11th Cir. 2018)

(per curiam) (listing the conditions under which a legitimated

child would derive citizenship through § 1432(a) and stating

that “[n]one of those conditions turns on gender”); accord

Barthelemy v. Ashcroft, 329 F.3d 1062, 1068 (9th Cir. 2003)

(“[Section 1432(a)(3)] makes no sex-based distinction when

the petitioner has been legitimated.”), overruled in part on

other grounds, as recognized in Mayea-Pulido, 946 F.3d

at 1062.

Petitioner’s proposed remedy also makes clear the legal

infirmity of her equal-protection claim. She suggests that we

should modify the second clause of § 1432(a)(3) to provide

for derivative citizenship upon:

[T]he naturalization of the mother parent with

sole legal custody of the child if the child was

born out of wedlock and the paternity of the

ROY V. BARR 13

child has not been established by legitimation

the other parent has relinquished parental

rights.

Petitioner’s suggestion does not simply correct a gender

disparity—it rewrites the statute entirely. No matter how

preferable her version might be as a policy matter,4 we lack

the power to amend statutes to accommodate policy

preferences. See RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 649 (2012) (explaining

that “the pros and cons” of a particular policy “are for the

consideration of Congress, not the courts”).

The Constitution’s guarantee of equal protection forbids

“governmental decisionmakers from treating differently

persons who are in all relevant respects alike.” Dream Act,

855 F.3d at 966 (quoting Nordlinger v. Hahn, 505 U.S. 1, 10

(1992)). Because Petitioner’s father legitimated her, she does

not resemble, in all relevant ways, persons who derived

citizenship under § 1432(a)(3)’s second clause. Gallinger,

898 F.3d at 1016. We therefore do not apply any level of

scrutiny to the second clause’s gender distinction, much less

the heightened scrutiny that Morales-Santana, 137 S. Ct. at

1690, applied to a different gender distinction, because

4

Congress repealed § 1432 when it enacted the Child Citizenship Act

of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1631, 1632. Under the

Child Citizenship Act, a child born outside the United States derives

citizenship when the child meets certain other conditions (which Petitioner

undisputedly met here) and “[a]t least one parent of the child is a citizen

of the United States, whether by birth or naturalization.” 8 U.S.C.

§ 1431(a). But that rule does not apply retroactively to people (such as

Petitioner) who already had turned 18 when the law took effect in 2001.

Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir. 2001).

14 ROY V. BARR

Petitioner’s gender-discrimination claim fails at the outset,

Gallinger, 898 F.3d at 1016.

B. Petitioner’s Legitimacy-Discrimination Claim

Petitioner’s legitimacy-discrimination claim is largely an

extension of her gender-discrimination claim, but we address

that claim separately here. Petitioner contends that

§ 1432(a)(3)’s use of legitimation (or lack thereof) as a

criterion inherently discriminates on the basis of gender

because a father cannot legitimate a child simply by being

present for the child’s birth. Regardless, because both fathers

and mothers can legitimate a child after the child’s birth,

legitimation is not inherently discriminatory on the basis of

gender.

Consider our earlier example of a hypothetical mother

who gave birth at home and then left her baby on the father’s

doorstep, thus keeping her maternity a mystery. That mother

could reappear later in the child’s life to establish her

maternity by legitimation, whether through a DNA test or

some other mechanism. For instance, in California (where

Petitioner’s father has lived since coming to the United

States), the mother could establish a “parent and child

relationship” by providing “proof of having given birth to the

child.” Cal. Fam. Code § 7610(a).

Now recall the version of § 1432(a)(3)’s second clause

with reversed gender roles, which would grant citizenship

“upon the naturalization of the father if the child was born out

of wedlock and the child’s maternity has not been established

by legitimation.” Reversing the gender roles does not help

Petitioner. Her mother and father both legitimated her when

she was a child, so she does not resemble, in all relevant

ROY V. BARR 15

ways, persons who derived citizenship under § 1432(a)(3)’s

second clause. Gallinger, 898 F.3d at 1016. Again, because

Petitioner is not similarly situated to persons who derived

citizenship under § 1432(a)(3)’s second clause, we do not

apply any level of scrutiny to that clause’s gender or

legitimacy distinction, and Petitioner’s repackaged gender-

discrimination claim still fails. Id.

To the extent that Petitioner raises a legitimacy-

discrimination claim that is distinct from her gender-

discrimination claim, Mayea-Pulido forecloses her claim.

There, we explained that children born to unmarried parents

could obtain derivative citizenship under § 1432(a)(3) “if

[their] parents later married and then legally separated, the

same as a marital child whose parents were married at his

birth but later [legally] separated.” Mayea-Pulido, 946 F.3d

at 1064. If Petitioner’s parents had married at some point

after her birth and then legally separated before she turned 18

(and if her father had sole custody), she would have derived

citizenship from her father under § 1432(a)(3)’s first clause.

Likewise, Petitioner would have derived citizenship from

her father under § 1432(a)’s other subsections if she had met

the relevant criteria: (1) both parents naturalized; or (2) one

parent (her mother) died and the surviving parent (her father)

naturalized. Thus, contrary to Petitioner’s view, the statute

does not impose a categorical bar against unwed fathers

passing citizenship to children born out of wedlock. If

anything, § 1432(a)(3)’s second clause gives children born to

unmarried parents “an extra route to citizenship, one not

enjoyed by legitimate (or legitimated) offspring.”

Wedderburn, 215 F.3d at 802.

16 ROY V. BARR

Petitioner’s constitutional challenge to § 1432(a)(3) fails,

so we cannot grant her derivative citizenship. Accordingly,

because Petitioner is not a citizen of the United States, we

lack jurisdiction to review her final order of removal.

8 U.S.C. § 1252(a)(2)(C).

PETITION DISMISSED.