960 F.3d 1175
9th Cir.2020Background
- Petitioner Rajeshree Roy was born in Fiji in 1974 to unmarried Fijian parents and remained in Fiji until entering the U.S. as a lawful permanent resident in 1984.
- Roy’s father immigrated to the U.S., naturalized in 1983, obtained full custody after the mother relinquished rights in Australia, and sought a visa for Roy.
- Roy’s paternity was legitimated before she turned 18 (father’s name on birth records or visa application); she was raised by her father in the U.S.
- In 2014 the government initiated removal proceedings based on prior criminal convictions; Roy moved to terminate, arguing she had derived U.S. citizenship via former 8 U.S.C. § 1432(a)(3).
- Roy also asserted that § 1432(a)(3)’s clause granting citizenship upon the mother’s naturalization for children born out of wedlock where paternity is not established violates equal protection (Fifth Amendment) by discriminating on the basis of gender and legitimacy.
- The Ninth Circuit held Roy was not similarly situated to persons who derived citizenship under § 1432(a)(3)’s mother-only clause (because she was legitimated), rejected her constitutional challenge, found she is not a U.S. citizen, and dismissed the petition for review as jurisdictionally barred.
Issues
| Issue | Roy's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 1432(a)(3)’s mother-only clause is an unconstitutional gender-based classification | The statute discriminates by granting derivative citizenship on mother’s naturalization for out-of-wedlock children when paternity unestablished, but not the converse for fathers | The classification is lawful and Roy lacks standing to obtain citizenship remedy; Roy is not similarly situated to those covered by the clause | Roy lacks standing to prevail on this claim because she was legitimated and thus not similarly situated; the gender challenge fails |
| Whether § 1432(a)(3)’s legitimation requirement is an unlawful legitimacy-based discrimination | Legitimation criterion operates to disadvantage children of fathers who cannot legitimate, thus discriminating on legitimacy and gender | Legitimation is a neutral, administrable criterion applicable to both mothers and fathers; Roy was legitimated so she’s not in the relevant class | Legitimation is not inherently discriminatory; Roy was legitimated, so she is not similarly situated and the claim fails |
| Whether the court can grant citizenship as remedy / review removal order | Roy asserted courts can remedy equal-protection violations by granting citizenship | Government argued § 1252(a)(2)(C) bars review if petitioner is not a citizen; remedy limits apply | Court recognized remedial power to grant citizenship for constitutional violations but dismissed because Roy is not entitled to relief; lacking citizenship, § 1252(a)(2)(C) precludes review of the removal order |
Key Cases Cited
- United States v. Mayea-Pulido, 946 F.3d 1055 (9th Cir. 2020) (interpreting § 1432(a)(3) and upholding custody-based derivative-citizenship route)
- Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (Fifth Amendment equal protection analysis parallels Fourteenth Amendment; applied heightened scrutiny to a different gender distinction)
- Gallinger v. Becerra, 898 F.3d 1012 (9th Cir. 2018) (framework for identifying classified and similarly situated comparative groups)
- Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. 2017) (plaintiff must show similarly situated group was treated disparately)
- Wedderburn v. INS, 215 F.3d 795 (7th Cir. 2000) (legitimated children not disadvantaged by sex-based distinctions in derivative-citizenship rules)
- Brown v. Holder, 763 F.3d 1141 (9th Cir. 2014) (courts may confer citizenship as a remedy for constitutional violations)
- Califano v. Westcott, 443 U.S. 76 (1979) (courts may add remedial text to statutes to cure gender discrimination)
- Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (equal protection principles applied in the context of sex-based classifications)