Howard Paul Levy v. U.S. Attorney General
16-14972
| 11th Cir. | Sep 21, 2017Background
- Howard Paul Levy, born in Jamaica, was legitimated when his father acknowledged paternity; his father became a U.S. lawful permanent resident in 1978, obtained full custody in 1984, and naturalized in 1985. Levy became an LPR in 1985 and resided with his father.
- After a federal mail-fraud conviction, DHS initiated removal proceedings; an Immigration Judge sustained removal and the BIA affirmed.
- Levy sought termination of removal, claiming he derived U.S. citizenship through his father’s 1985 naturalization under former INA § 321(a)(3) (8 U.S.C. § 1432(a)(3) (1985)).
- The IJ and BIA held Levy did not derive citizenship because his parents were never married and thus never ‘‘legally separated’’ as required by § 321(a)(3).
- Levy argued § 321(a)(3) violates the Fifth Amendment’s equal protection component by discriminating on the basis of gender (caregiver/breadwinner dichotomy); he also mentioned a legitimacy-based challenge but did not develop it.
- The court reviewed the constitutional claim de novo and denied the petition, finding no gender discrimination and declining to consider the inadequately briefed legitimacy argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former INA § 321(a)(3) violates equal protection by discriminating based on gender | Levy: statute favors mothers over fathers (caregiver/breadwinner dichotomy); thus discriminates by gender | Government: statute looks to the parent having legal custody; it does not single out mothers or fathers | Court: No gender discrimination; statute neutral as to parent’s sex; claim denied |
| Whether Levy derived citizenship under § 321(a)(3) given his parents never married | Levy: father naturalized and had legal custody, so he should derive citizenship | Government: clause applies only when parents were ‘‘legally separated’’; parents never married so clause inapplicable | Court: Levy could not derive citizenship under § 321(a)(3); parents not legally separated, petition denied |
| Whether the statute discriminates based on legitimacy | Levy: (argued only in reply) statute treats legitimated vs. non-legitimated children differently | Government: not addressed on merits here | Court: Issue abandoned for inadequate briefing; not considered |
| Remedy post-Morales-Santana | Levy: sought leave to file supplemental brief on remedies after Supreme Court decision | Government: not adopted because underlying claim failed | Court: Motion to supplement denied as moot because BIA order affirmed |
Key Cases Cited
- Cole v. U.S. Att’y Gen., 712 F.3d 517 (11th Cir. 2013) (federal courts review constitutional and legal questions de novo in immigration cases)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (issue abandoned if raised perfunctorily or without supporting authority)
- United States v. Evans, 473 F.3d 1115 (11th Cir. 2006) (arguments raised first in a reply brief are generally not considered)
- Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (Supreme Court decision affecting gender-based distinctions in derivative citizenship doctrine; raised for potential remedies)