Robert Franklyn Lodge v. U.S. Attorney General

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10416

____________________

ROBERT FRANKLYN LODGE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A043-215-757

____________________

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2 Opinion of the Court 22-10416

Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and HULL,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This petition for review challenges the constitutionality of a

federal law about derivative citizenship. Robert Franklyn Lodge, a

native and citizen of Jamaica, was born out of wedlock. Lodge’s

mother abandoned him, and his father moved to the United States

and became a naturalized citizen. Lodge’s father later brought him

here as a lawful permanent resident. After Lodge was convicted of

aggravated felonies, the Department of Homeland Security sought

to remove him. Lodge argued that he had derived citizenship from

his father under a since-repealed statute. The immigration judge

ordered Lodge removed to Jamaica, and the Board of Immigration

Appeals dismissed his appeal. Lodge argues that the former statute

discriminated against unmarried fathers based on sex and against

black children based on race. He maintains that he derived citizen-

ship because the statute, cured of its constitutional defects, would

have permitted his father to transmit citizenship to him. Because

we conclude that Lodge lacks standing to raise these constitutional

challenges, we dismiss his petition for review and deny as moot his

motion to transfer.

I. BACKGROUND

Born in 1979, Robert Franklyn Lodge is a native and citizen

of Jamaica. His father, Robert Francis Lodge, was born in Jamaica

and became a naturalized citizen of the United States in 1989. And

Lodge’s mother, Lorna Wyndham, has never been a citizen of the

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22-10416 Opinion of the Court 3

United States. Lodge’s parents never married. But their names ap-

pear on Lodge’s “birth registration form” as his father and mother.

Lodge’s mother abandoned him when he was a child. She

left Jamaica to reside in London. Lodge’s father became his sole

“guardian” and “provide[d] everything” for him. He “maintained a

continuing and close relationship” with Lodge, “support[ing] him

fully and completely.” Lodge’s father brought Lodge to the United

States, where he was admitted as a lawful permanent resident in

1992.

The Department of Homeland Security began removal pro-

ceedings against Lodge after he was convicted of aggravated felo-

nies in 2016. See 8 U.S.C. § 1227(a)(2)(A)(iii). Lodge argued before

the immigration judge that he was a citizen of the United States.

The Department responded that Lodge was not a citizen.

The immigration judge found that Lodge was not a citizen

of the United States. When Lodge’s father naturalized and Lodge

became a lawful permanent resident, the Immigration and Nation-

ality Act provided several pathways to derivative citizenship for

children born abroad to alien parents. See 8 U.S.C. § 1432(a) (1994),

repealed by Child Citizenship Act of 2000, Pub. L. No. 106-395,

§ 103, 114 Stat. 1631, 1632 (2000). Although Lodge would have de-

rived citizenship under the Child Citizenship Act of 2000, which

repealed and replaced those pathways, that new law is not retroac-

tive, and Lodge did not satisfy its terms on its effective date. See 8

U.S.C. § 1431(a); United States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir.

2002). The immigration judge explained that Lodge did not meet

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4 Opinion of the Court 22-10416

the statutory conditions for naturalization under former sec-

tion 1432(a). The immigration judge rejected Lodge’s requests for

withholding of removal and for relief under the Convention

Against Torture and ordered him removed to Jamaica. Lodge ap-

pealed to the Board of Immigration Appeals, which dismissed his

appeal.

Lodge petitioned this Court pro se for relief. He argued that

the second clause of section 1432(a)(3)—which allowed natural-

ized unmarried mothers, but not naturalized unmarried fathers, to

transmit citizenship to their children when other conditions were

met—violated the equal protection guarantee of the Due Process

Clause of the Fifth Amendment because it discriminated based on

sex and race. We dismissed the appeal for want of prosecution but

reinstated it after Lodge obtained counsel.

Lodge moved to transfer the proceeding to the Northern

District of Georgia. See 8 U.S.C. § 1252(b)(5)(B). He argued that ad-

judication of his argument about race discrimination requires fact-

intensive inquiry into the legislative purpose and the effect of the

second clause of section 1432(a)(3) and that this Court may not de-

cide issues of material fact about nationality. See id. We carried the

motion with the case.

II. STANDARD OF REVIEW

We review de novo our subject-matter jurisdiction. Clement v.

U.S. Att’y Gen., 75 F.4th 1193, 1198 (11th Cir. 2023).

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22-10416 Opinion of the Court 5

III. DISCUSSION

Lodge presents two constitutional challenges. First, he ar-

gues that the second clause of former section 1432(a)(3) excluded

him from derivative citizenship based on an unconstitutional sex

classification. Second, he argues that the same clause excluded him

from derivative citizenship for a racially discriminatory purpose.

We may address these challenges only if Lodge has standing.

Former section 1432(a) automatically conferred citizenship

on a “child born outside of the United States of alien parents . . .

upon fulfillment of ” three conditions. 8 U.S.C. § 1432(a). The first

condition, which appeared in the second clause of sec-

tion 1432(a)(3), required “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.” Id. § 1432(a)(3). The second

condition required that “[s]uch naturalization take[] place while

such child is unmarried and under the age of eighteen years.” Id.

§ 1432(a)(4). And the third condition required that “[s]uch child . . .

begin[] to reside permanently in the United States while under the

age of eighteen years.” Id. § 1432(a)(5).

Lodge acknowledges that he did not derive citizenship under

the statute. Although Lodge began to reside permanently in the

United States before he turned 18 and was unmarried and under 18

when his father became a naturalized citizen, the second clause of

section 1432(a)(3) provided derivative citizenship only if his mother,

not his father, naturalized. His mother never did so.

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6 Opinion of the Court 22-10416

Lodge challenges the constitutionality of the second clause.

When the conditions in sections 1432(a)(3), 1432(a)(4), and

1432(a)(5) were satisfied, he argues, the second clause of sec-

tion 1432(a)(3) “confer[red] automatic citizenship on the child of

an unmarried mother, but not of a similarly situated unmarried fa-

ther.” Lodge argues that the sex classification in the second clause

was the basis for denial of his defense of citizenship. He maintains

that the clause unconstitutionally discriminated based on sex be-

cause it treated unmarried mothers and unmarried fathers une-

qually based solely on the “outmoded stereotype[]” that “an unwed

father is more likely to be ‘out of the picture’ than an unwed

mother.” And he contends that the “disparate treatment of unmar-

ried fathers” is unconstitutional too because the second clause was

enacted with the purpose, and had the disparate effect, of limiting

the number of black children who could derive citizenship.

For us to consider his constitutional challenges, Lodge must

first establish that he has standing under Article III of the Constitu-

tion. See Walters v. Fast AC, LLC, 60 F.4th 642, 647 (11th Cir. 2023).

He must prove that he has suffered an injury-in-fact, fairly traceable

to the challenged sex classification, that a favorable decision likely

would redress. See TocMail, Inc. v. Microsoft Corp., 67 F.4th 1255, 1262

(11th Cir. 2023). His injury must be “particularized” and “actual.”

Walters, 60 F.4th at 648 (citation and internal quotation marks omit-

ted). And the sex classification must be the “likely cause[]” of his

injury. See id. at 647 (citation and internal quotation marks omit-

ted).

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22-10416 Opinion of the Court 7

Lodge must establish his standing even though he is assert-

ing his father’s right to equal protection. “Because [the second

clause of section 1432(a)(3)] treats sons and daughters alike,

[Lodge] does not suffer discrimination on the basis of his [sex].” See

Sessions v. Morales-Santana, 137 S. Ct. 1678, 1688 (2017). “He com-

plains, instead, of [sex]-based discrimination against his father.” Id.

That is, Lodge argues that the sex classification in the second clause

“clearly injure[s]” “his father” and that he has third-party standing

“to assert his [father’s] constitutional claims.” A litigant ordinarily

may not assert the rights of third parties. See Elend v. Basham, 471

F.3d 1199, 1206 (11th Cir. 2006). But a petitioner may have third-

party standing to challenge a sex classification in a statute govern-

ing derivative citizenship to “vindicate his father’s right to the equal

protection of the laws.” Sessions, 137 S. Ct. at 1689. Yet even a peti-

tioner who invokes third-party standing must establish his own

constitutional standing. See Mata Chorwadi, Inc. v. City of Boynton

Beach, 66 F.4th 1259, 1264 (11th Cir. 2023) (“[E]xceptions to the pro-

hibition against asserting third-party rights . . . do not alter the re-

quirements of standing under Article III.” (citation omitted)). So

although Lodge asserts his father’s right to equal protection, he still

must prove that the challenged sex classification was the “factual

caus[e]” of an actual injury to him that a favorable decision likely

would redress. See Walters, 60 F.4th at 650 (emphasis omitted).

Lodge suffered an actual injury. He is subject to removal be-

cause he was convicted of aggravated felonies. See 8 U.S.C.

§ 1227(a)(2)(A)(iii). The “risk of removal” is “sufficient to create an

actual or imminent injury” under Article III. Gonzalez v. United

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8 Opinion of the Court 22-10416

States, 981 F.3d 845, 852 (11th Cir. 2020). And citizenship is a defense

to removal. See 8 U.S.C. § 1227(a) (only aliens may be removed).

The injury that Lodge alleges—that is, the one that he asks us to

remedy—is the immigration judge’s order to remove him because

he is not a citizen under section 1432(a).

Lodge argues that the sex classification in the second clause

of former section 1432(a)(3) caused this injury. His theory of injury

and traceability underpins his arguments about both sex and race

discrimination. His theory of race discrimination is that the second

clause “impermissibly benefits one class”—unmarried naturalized

mothers—while “exclud[ing] another from the benefit”—unmar-

ried naturalized fathers—based on a racially discriminatory pur-

pose. And the “cure” for both “the sex- and race-based discrimina-

tion” is to “allow fathers to bestow derivative citizenship on their

nonmarital children” under former section 1432(a)(3).

Lodge’s theories fail because his injury is not “fairly tracea-

ble” to the sex classification in the second clause of former sec-

tion 1432(a)(3). See TocMail, 67 F.4th at 1262 (citation and internal

quotation marks omitted). Lodge would not have become a citizen

under a sex-neutral version of the second clause of former section

1432(a)(3). The second clause provided a pathway to derivative cit-

izenship for a child born abroad to alien parents upon “the natural-

ization of the mother if the child was born out of wedlock and the

paternity of the child has not been established by legitimation.” 8

U.S.C. § 1432(a)(3). To be sure, because his mother never natural-

ized, Lodge did not derive citizenship under this statute. But he also

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could not have derived citizenship under a sex-neutral version of

the statute: a sex-neutral version of the second clause of sec-

tion 1432(a)(3) would have conferred citizenship on children upon

“the naturalization of one parent if the child was born out of wed-

lock and the paternity or maternity of the other parent has not been es-

tablished.” Or a sex-neutral version would have conferred citizen-

ship upon “the naturalization of the mother if the child was born

out of wedlock and the paternity of the child has not been estab-

lished by legitimation or the naturalization of the father if the child

was born out of wedlock and the maternity of the child has not been es-

tablished.” Either way, because Lodge’s maternity has been estab-

lished, he would not have derived citizenship from his father even

under a version of the second clause that treated mothers and fa-

thers the same.

That Lodge’s defense of citizenship was rejected has nothing

to do with the sex classification. He did not “suffer from a [sex]-based

distinction” in the second clause. See Roy v. Barr, 960 F.3d 1175, 1182

(9th Cir. 2020) (emphasis added). So he cannot establish traceability.

See Swann v. Sec’y, 668 F.3d 1285, 1286 (11th Cir. 2012) (holding that

an “alleged injury [i]s not fairly traceable” to a challenged provision

if the claimant “would not have received” the benefit he sought

“regardless” of whether his claim had merit).

Lodge insists that the sex classification caused his injury. He

asks us to “hold that [he] derived citizenship through his father”

under the pathway to derivative citizenship provided in sec-

tion 1432(a)(4), section 1432(a)(5), and a sex-neutral version of the

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10 Opinion of the Court 22-10416

second clause of section 1432(a)(3). He would have us remedy the

alleged constitutional defects in the second clause by “allow[ing]

the child of a similarly situated father . . . to obtain the same bene-

fits” that the clause grants to children of naturalized, unmarried

mothers. In Lodge’s view, a father “similarly situated” to a natural-

ized mother whom the second clause benefits would be a father

who “has legitimated the child and obtained exclusive legal cus-

tody” over him. Lodge proposes that we construe the second clause

to confer automatic citizenship—assuming that the conditions in

sections 1432(a)(4) and 1432(a)(5) are met—upon the “naturaliza-

tion of the mother if the child was born out of wedlock and the

paternity of the child has not been established by legitimation or

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

the child is in the legal custody of the father.”

Lodge’s proposed amendment “does not simply correct a

[sex] disparity—it rewrites the statute entirely.” See Roy, 960 F.3d at

1182–83 (rejecting a similar proposed cure of the sex classification

in the second clause of section 1432(a)(3)). By Lodge’s logic, the

second clause would have allowed naturalized mothers to transmit

citizenship if the child were born out of wedlock and the child were

in the legal custody of the mother. But the second clause instead al-

lowed mothers to transmit citizenship “if the child is born out of

wedlock and the paternity of the child has not been established by legiti-

mation.” 8 U.S.C. § 1432(a)(3). These conditions are not the same.

A child can be in his mother’s legal custody even if his father has

legitimated him. Whether a child is in his mother’s custody says

nothing about whether the child’s paternity has been established.

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Whether a child is in his father’s custody says nothing about

whether the child’s maternity has been established. And that the

child’s maternity has been established does not tell us whether he

is in his father’s custody.

Lodge misses the point when he argues that a paternal “cus-

todial relationship” is “on all fours with the maternal relationship

described in” the second clause of section 1432(a)(3) because “the

unwed mother is presumed to have sole legal custody” over the

child. The second clause does not allow transmission of citizenship

by the mother with sole legal custody if paternity has been estab-

lished by legitimation. Likewise, that a father might have sole legal

custody would be, on the plain terms of the sex-neutralized statute,

only half the story; establishment of maternity would be the other

half.

We agree with the government that it is “no coincidence”

that Lodge’s proposed amendment would, instead of removing the

sex classification from the second clause, “effectively render retro-

active the derivative citizenship provisions” of the Child Citizen-

ship Act. Under that law, which became effective in 2001, a child

born abroad derived citizenship when, before he turned 18, he

“resid[ed] in the United States” as a lawful permanent resident “in

the legal and physical custody of [his] citizen parent.” 8 U.S.C.

§ 1431(a)(1)–(3); Arbelo, 288 F.3d at 1262. Lodge appears to have sat-

isfied those conditions. But the Act is not retroactive. Arbelo, 288

F.3d at 1263. And the pathway to citizenship that depends on the

second clause of former section 1432(a)(3) is not, as Lodge

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12 Opinion of the Court 22-10416

contends, the new law plus a sex classification: the second clause of

former section 1432(a)(3) makes no reference to custody.

Lodge retorts that legitimation is an “inherently sex-based”

concept and that his standing cannot turn on whether he satisfies

an “inherently [sexist] part of an unconstitutional test.” We disa-

gree. Although legitimation is often considered a mechanism for

establishing paternity, not maternity, see Schreiber v. Cuccinelli, 981

F.3d 766, 774 (10th Cir. 2020); Matter of Cross, 26 I. & N. Dec. 485,

489 n.5, 492 (B.I.A. 2015), “both fathers and mothers can legitimate

a child after the child’s birth,” Roy, 960 F.3d at 1183 (emphasis omit-

ted). Yet most children are necessarily legitimated by their mothers

by being born to them in a place where that fact is officially rec-

orded. In any event, the removal of the sex classification from the

second clause of section 1432(a)(3) would not need to involve the

concept of establishment of maternity by legitimation.

Lodge is wrong that maternity need never be established. In-

deed, the authorities that he cites undermine his argument. The

Supreme Court has stated, for example, that “[t]he mother’s status

is documented in most instances”—not all—“by the birth certificate

or hospital records and the witnesses who attest to her having given

birth.” Nguyen v. INS, 533 U.S. 53, 62 (2001) (emphasis added). An-

other decision states that “[e]stablishing maternity is seldom”—not

never—“difficult.” Lalli v. Lalli, 439 U.S. 259, 268 (1978) (emphasis

added). And the Ninth Circuit has stated that “in most cases”—not

all—“there is a reasonable expectation that the illegitimate child’s

maternal descent will be easier to trace than her paternal descent.”

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Ablang v. Reno, 52 F.3d 801, 805 (9th Cir. 1995) (emphasis added).

These authorities do not speak in categorical terms. That a child’s

maternity has not been established is, even if improbable, “not im-

possible.” Roy, 960 F.3d at 1182. “[A]n unmarried mother could give

birth at her home and then leave the baby on the father’s doorstep.”

Id. The father might confirm his own paternity with a test but not

know the identity of the mother. Id. Lodge misses that the estab-

lishment of maternity, like the establishment of paternity by legit-

imation, is a legal proposition that attests a biological fact; it is not

the biological fact itself. Were it otherwise, establishment of pater-

nity would be no more meaningful a concept than establishment

of maternity. In short, the law does not always know that a partic-

ular mother has given birth.

The sex classification in the second clause of former sec-

tion 1432(a)(3) was not the “factual caus[e]” of Lodge’s injury. See

Walters, 60 F.4th at 650 (emphasis omitted). He lacks standing to

challenge its constitutionality. So we may not address the merits of

his arguments about race and sex discrimination or whether he has

third-party standing to assert his father’s right to equal protection.

We also do not address Lodge’s motion to transfer. See 8 U.S.C.

§ 1252(b)(5)(B). Nor do we decide whether Lodge qualified as a

“child” under section 1432(a)(3). See 8 U.S.C. § 1101(c)(1) (1994) (de-

fining “child” in section 1432(a)(3) to include a child born to un-

married parents only if he was legitimated under certain condi-

tions).

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14 Opinion of the Court 22-10416

IV. CONCLUSION

We DISMISS Lodge’s petition for review, and we DENY

his motion to transfer as moot.