882 F.3d 1364
11th Cir.2018Background
- Howard Paul Levy, born in Jamaica, became a U.S. lawful permanent resident in 1985 after his father (who had acknowledged paternity at birth) obtained custody and naturalized that year; his mother never resided in the U.S. and died in 2013.
- Levy was convicted of conspiracy to commit mail fraud, prompting DHS removal proceedings; an Immigration Judge sustained the removal charge.
- Levy moved to terminate removal, claiming derivative citizenship under former 8 U.S.C. § 1432(a)(3) (law in effect at his father’s 1985 naturalization); the IJ denied relief and the BIA affirmed.
- The BIA found Levy could only claim derivative citizenship under clause (1) of § 1432(a)(3) as applied in 1985, and concluded he failed to meet the relevant condition because his parents never legally separated.
- Levy raised constitutional challenges: gender discrimination, illegitimacy discrimination (equal protection), and an asserted burden on his right to family integrity; the court reviewed those arguments de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1432(a) discriminates on the basis of gender | Levy: statute treats children differently based on parent’s gender (would derive citizenship if mother were the U.S. citizen) | Govt: statute’s conditions turn on custody/separation, not parent gender; facts reversed would not change outcome | Rejected: statute does not discriminate based on gender |
| Whether § 1432(a)(3) discriminates based on legitimacy | Levy: clause targets children born out of wedlock; invalid under equal protection | Govt: clause distinguishes parental marital/legal separation choices, not immutable birth status | Rejected: classification is not legitimacy-based; even if it were, it survives intermediate scrutiny as substantially related to parental-rights interest |
| Appropriate scrutiny for naturalization derivative citizenship rules | Levy: statute implicates heightened protection for legitimacy/family interests | Govt: immigration/naturalization context permits deference; alternatively statute satisfies intermediate or relaxed standard | Court: did not decide which relaxed standard applies; found statute satisfies intermediate scrutiny and the government interest in protecting alien parental rights |
| Whether § 1432(a) unconstitutionally burdens fundamental right to family integrity | Levy: statute can lead to deportation/separation and thus burdens family unit | Govt: Levy is being removed for a deportable crime, not statute’s application; failure to confer citizenship after criminal conviction does not violate due process | Rejected: no fundamental-right violation shown; petition denied |
Key Cases Cited
- Cole v. U.S. Att’y Gen., 712 F.3d 517 (11th Cir. 2013) (standard for de novo review of INA constitutional claims)
- Frontiero v. Richardson, 411 U.S. 677 (1973) (discussion of classifications targeting children born out of wedlock)
- Clark v. Jeter, 486 U.S. 456 (1988) (intermediate scrutiny for legitimacy-based classifications)
- Fiallo v. Bell, 430 U.S. 787 (1977) (deference to congressional classifications in immigration context)
- Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011) (applying relaxed review to § 1432 equal protection challenges)
- Pierre v. Holder, 738 F.3d 39 (2d Cir. 2013) (upholding § 1432 as substantially related to protecting parental rights)
- Ayton v. Holder, 686 F.3d 331 (5th Cir. 2012) (similar reasoning upholding § 1432)
- Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003) (derivative naturalization can impact parental rights)
- Catwell v. U.S. Att’y Gen., 623 F.3d 199 (3d Cir. 2010) (Congress may limit single-parent derivative citizenship to protect alien parents’ rights)
- Nguyen v. I.N.S., 533 U.S. 53 (2001) (statute need not achieve its objective in every instance to satisfy intermediate scrutiny)