JOSE FRANCISCO TINEO AKA Luis Albеrto Padilla, AKA Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
No. 16-1461
United States Court of Appeals for the Third Circuit
Opinion Filed: September 4, 2019
PRECEDENTIAL; Argued January 19, 2018; Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.
OPINION
Charles N. Curcio [ARGUED]
Curcio Law Firm
3547 Alpine Avenue NW
Suite 104
Grand Rapids, MI 49544
Attorney for Petitioner
Stefanie N. Hennes [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
GREENAWAY, JR., Circuit Judge.
In plain terms, we are called to decide whether precluding a father from ever having his born-out-of-wedlock child derive citizenship through him can be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment.
In not so plain terms, under the now repealed
As a result,
Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “is verifiable from the birth itself,” and likewise “the opportunity for the development of a relationship between citizen parent and child . . . .” Nguyen v. INS., 533 U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) (“The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required for [those] claiming under their mothers’ estates . . . .” (emphasis added)). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out-of-wedlock child derive through him. This problem only arises where the child‘s mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship to their out-of-wedlock children as a result of the interplay between
Such is the case with the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father‘s residence or domicile—the Dominican Republic and New York—legitimation could only occur if his birth parents married. So Tineo‘s father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. On the cusp of being removed from the United States as a noncitizen, Tineo brings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. We hold that, in this circumstance, the interplay of
A. Arrival in the United States
Tineo was born in the Dominican Republic on January 16, 1969. His parents, both citizens of the Dominican Republic, never married. His father, Felipe Tineo, moved to the United States and became a naturalized U.S. citizen in 1981. Two years later, his father married a legal permanent resident.
Tineo came to live with his father once his birth mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He was 15 years old at the time and lived with his father until he turned 21 in 1990.
B. Removal Proceedings
Felipe Tineo died an American in 2006. The question of his son‘s citizenship has come up on two occasions: once before his death and once after. Both were in the context of removal proceedings. This is in part because only noncitizens may be removed. See
1.
The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1993. He was issued a Notice to Appear (“NTA“) dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of his citizenship, Tineo produced a United States passport that was issued to him in 2001.2
2.
The second occasion arose pursuant to an NTA issued on October 14, 2014. The
First, Tineo was convicted on July 8, 2002, of the sale of a controlled substance in New York state court, thus making him inadmissible pursuant to
Second, on January 15, 2008, upon returning to the United States after a trip abroad, Tineo presented the passport issued to him in 2001. The NTA charged that “[i]n doing so, [he] falsely represented [him]self to be a [U.S.] Citizen . . . to gain entry into the United States,” thus violating
The third event providing a basis for Tineo‘s removal was his conviction in 2014 of passport fraud and aggravated identity theft in the Eastern District of Pennsylvania. This conviction arose when, after his passport expired, Tineo attempted to obtain a new passport using the name Luis Padilla. Tineo presented several identification documents in the name Luis Padilla in support of his passport application. Based on this conviction, the NTA charged Tineo as inadmissible, pursuant to
C. Challenges to Removal
Appearing pro se before the immigration judge, Tineo admitted to his criminal convictions, but challenged his removability on the grounds that (1) he derived citizenship through his father and (2) this was evinced by his legally obtained first passport.4
1.
His derivative citizenship claim was based on former
A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
The naturalization of both parents; or - The naturalization of the surviving parent if one of the parents is deceased;6 or
- 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
- Such naturalization takes place while such child is under the age of eighteen years; and
- 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 last naturalized under clause (1) of this subsection, or 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 statute defines “child” as meaning:
an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child‘s residence or domicile, or under the law of the father‘s residence or domicile, whether in the United States or elsewhere . . . .
The United States Citizenship and Immigration Services (“USCIS“) interpreted the language beginning with “and includes” as restricting the meaning of child to exclude children born out of wedlock who were not legitimated, regardless of whether they were unmarried and under the age of 21. When Tineo filed an application for a certificate of citizenship—also known as a Form N-600—in 2007, USCIS denied his application because he was “a child born out of wedlock” and “had not been legitimated by his [U.S.] citizen father . . . .” App 4. In denying Tineo‘s derivative citizenship claim, the Immigration Judge (IJ) stated that “[t]hе CIS denial letter [regarding the N-600 application] . . . correctly noted the law.” App. 10. That is, “children born out of wedlock who have not been legitimated are not included in the definition of ‘child’ under the INA.” App. 10.8
The Board of Immigration Apрeals (“BIA“) affirmed the IJ‘s decision. It found “no clear error in the Immigration Judge‘s factual finding that the respondent has not presented evidence of legitimization . . . , such that he has not established that he was a ‘child’ for purposes of deriving citizenship through his father.” App. 6. Tineo argued that the definition of “child” “creates an unconstitutional gender-based distinction between mothers and fathers, in violation of the equal protection clause of the Constitution.” Id. But the BIA concluded that it lacked “jurisdiction to entertain such a challenge.” Id.
2.
Tineo further argued that the IJ erred in not finding that he was a U.S. citizen based on the issuance of his first passport. Relying on Delmore v. Brownell, 236 F.2d 598 (3d Cir. 1956), Matter of Villanueva, 19 I. & N. Dec. 101 (BIA 1984), and Matter of Peralta, 10 I. & N. Dec. 43 (BIA 1962), Tineo‘s view was “that unless it is void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings, but constitutes conclusive proof of such person‘s [U.S.] citizenship.” App. 5. The BIA rejected this argument, based on new precedent from this Court in United States v. Moreno, 727 F.3d 255 (3d Cir. 2013). In Moreno, we held that “a passport constitutes conclusive proof of citizenship only if the passport was issued to a U.S. citizen.” Id. at 257.9
D. Petition for Review and Motion to Remand
Tineo filed a timely petition for review with this Court. In lieu of filing a brief, the government moved to remand to allow the BIA “to provide a more fulsome explanation as to what weight should be afforded a previously-valid, but expired passport in establishing citizenship.” Mot. to Remand 1. The case was then stayed, pending the
II. Jurisdiction and Standard/Scope of Review
A. Jurisdiction
We have jurisdiction to decide a nationality claim under
That Tineo‘s claim is premised on his father‘s constitutional rights is of no moment. Typically, a party has to assert his own legal rights and cannot rely on the legal rights of third parties. Morales-Santana, 137 S.Ct. at 1689. But, as the Supreme Court articulated,
we recognize an exception where, as here, the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor‘s ability to protect his own interests.
Id. (alteration in original) (internal quotation marks omitted) (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)). As Felipe Tineo‘s son, Tineo satisfies the “close relationship” requirement, while his father‘s death establishes the hindrance to his father‘s ability to assert this claim on his own. See id. (considering the petitioner-child as the “obvious claimant” and “best available proponent” of the equal protection rights of his deceased father whose “failure to assert a claim in his own right stem[med] from disability, not disinterest (internal quotation marks and citations omitted)); see also Breyer v. Meissner, 214 F.3d 416, 423 (3d Cir. 2000) (holding that the petitioner could assert his mother‘s equal protection rights because “his own alleged deprivation of citizenship as a result of discrimination against his mother constitute[d] injury-in-fact, the closeness of his relationship to his mother [was] obvious, and his mother‘s death most definitely constitute[d] a hindrance to her assertion of her own rights“).
B. Standard and Scope of Review
Though he asks us to employ any number of mechanisms to cure the constitutional infirmity he asserts, Tineo‘s challenge remains that, in conjunction with the government‘s construction of “child,” as defined in
1.
The standard of review for such a challenge is intermediate scrutiny. That is, the legislation will only withstand constitutional scrutiny if its defender shows
This is not merely because the legislation differentiates on the basis of gender. Indeed, because of Congress‘s “broad power to admit or exclude [noncitizens],” statutes governing immigration benefits to noncitizens need only be supported by a rational basis, even where they differentiate on the basis of gender. See Fiallo v. Bell, 430 U.S. 787, 788–89, 792–96 (1977). Rather, it is also because, as was the case in Morales-Santana, Tineo claims that “he is” and has for some time been “a U.S. citizen.” See Morales-Santana, 137 S. Ct. at 1693–94 (applying an “exacting standard of review” to “a claim of th[e same] order“); see also Dent v. Sessions, 900 F.3d 1075, 1081 (9th Cir. 2018) (overturning prior ruling that rational basis review applied even where the relevant statute governs who is and is not a citizen in light of Morales-Santana). The government concedes as much. See Resp‘t Br. 33.
Similar to the Ninth Circuit, we previously assessed whether “[f]ormer
So we too must relent: in accordance with United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009), based on intervening Supreme Court precedent, this panel declines to follow our Court‘s precedential decision in Catwell. We will apply intermediate scrutiny in this case and do so because Tineo presents a gender-based equal protection challenge and claims that he is a U.S. citizen.
2.
The scope of the challenge is as-applied. This entails a concession that the statute at issue may be constitutional in many of its applications but contends “that its application to a particular person under particular circumstances deprived that person of a constitutional right.” United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (citation omitted). In contrast, a facial challenge “tests a law‘s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case.” Id. (citation omitted). Properly understood, Tineo‘s challenge turns on the particular circumstances at hand: the statute‘s interaction with the New York and Dominican Republic laws and his particular family circumstances.
III. Discussion
A. Challenge
Moving to the challenge itself, it is twofold. Tinеo first asks that we avoid the constitutional question by rejecting the government‘s construction of “child,” as defined in
1.
Section 1101(c)(1) is the linchpin of the denial of Tineo‘s constitutional avoidance argument. This is because
We agree that the government‘s construction of
Under the government‘s construction,
Assuming arguendo that we would be able to, construing
Regardless of the merits (or lack thereof) of imposing a legitimation requirement on the fathers of children born out of wedlock, invalidating a provision‘s operation in a vast number of instances across two different statutes, one of which is not at issue, is too strong a medicine for avoiding or curing the otherwise narrow infirmity Tineo has identified. Tineo‘s father was unable to have his born-out-of-wedlock child derive citizenship through him, whereas a similarly situated mother would have faced no such roadblock. Though
2.
As we have noted in prior cases, “the standard of review . . . is often outcome determinative.” Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 213 (3d Cir. 2013). This case is no different. To survive the challenge Tineo presents, the government is required to show that
Unsurprisingly, the order is too tall: the government‘s justification is unavailing in these circumstances.
Even if this interest did not equate to the perpetuation of discrimination against unwed fathers, the government has not articulated how deferring to state legitimation rules constitutes an impоrtant governmental interest ”today.” See id. at 1690. Although some states have not formally abolished the distinction between legitimated and unlegitimated children, these classifications now have little import under state law: long gone are the days when unlegitimated children simply could not inherit. See, e.g.,
Our dissenting colleague would like us to cast this reality aside because, “in legislating, Congress is not required to anticipate every potential outcome that results from the application of a statute in order for it to pass constitutional muster.” Diss. Op. 5.11 The view originates from a passage in Nguyen. The Court had acknowledged the importance of assuring the existence of a relationship between citizen parent and child, both as a biological matter and in terms of the opportunity for a true relationship to develop between the two. Nguyen, 533 U.S. at 62, 65 (acknowledging that the biological relationship between a mother and child is “verifiable from the birth itself,” and “likewise the opportunity for the development of a relationship between citizen parent and child“). In response, the “petitioners assert[ed] that, although a mother
With this as the background, there is no disagreement that the existence of a relationship between citizen parent and child is an important governmental objective, particularly in the “difficult context of conferring citizenship on a vast number of persons.” Id. at 70. We also agree that the means-end fit required to survive intermediate scrutiny does not mean that
To that effect, the Supreme Court has long recognized that “laws treating fathers and mothers differently may not be constitutionally applied . . . where the mother and father are in fact similarly situated with regard to their relationship with the child.” Morales-Santana, 137 S. Ct. at 1693 n. 12 (2017) (alteration in original) (internal quotation marks omitted) (quoting Lehr v. Robertson, 463 U.S. 248, 267 (1983)). It thus saw no equal protection problem where an unwed father who “ha[d] never supported and rarely seen” his child complained that he was entitled to receive notice of a proceeding to adopt her. Lehr, 463 U.S. at 250. The Court concluded that “the New York statutes adequately protected appellant‘s inchoate interest in establishing a relationship with [his daughter],” and thus found “no merit in the claim that his constitutional rights were offended.” Id. at 262–65; see also Morales-Santana, 137 S. Ct. at 1693 n.12 (explaining that “[t]he ‘similarly situated’ condition was not satisfied in Lehr, [because] the father in that case had ‘never established any custodial, personal, or financial relationship’ with the child“). Notably, the statutes provided that the father would have been entitled to notice had he done any one of the following: (1) filed his name in the state‘s putative father registry, (2) established paternity by adjudication, (3) been identified as the child‘s father on her birth certificate, (4) openly lived with the child‘s mother and held himself out to be her father, (5) identified as the father in a sworn statement, or (6) married the child‘s mother before she turned six months old. Id. at 251.
Tellingly, the Court took the opposite view with an Illinois statute that outright terminated the custody rights of an unwed father who had “lived with his children all their lives and had lived with their mother for eighteen years,” and thereby rendered “the nature of the actual relationship between parent and child . . . completely irrelevant.” Lehr, 463 U.S. at 258–59.
Nothing in Nguyen suggests that the Court has departed from this course. Like the New York statutes in Lehr,
We thus maintain that, when applied to his circumstance, the provisions from which such a burden and presumption stem—
B. Remedy
Anticipating this result, the government suggests that we “should not fashion a remedy and, instead, leave that work to Congress.” Resp‘t Br. 48. In so suggesting, the government advances the view thаt we do not have the “power to provide relief of the sort requested in this [petition]—namely, conferral of citizenship on a basis other than that prescribed by Congress.” Morales-Santana, 137 S. Ct. at 1701 (Thomas, J., joined by Alito, J., concurring in part) (internal quotation marks and citations omitted). We do not subscribe to this view. See Breyer, 214 F.3d at 429 (finding an equal protection violation in a derivative citizenship statute, and providing that, pursuant to additional findings by the District Court, the noncitizen petitioner would “be entitled to American citizenship relating back to his birth“).
As an initial matter, a judgment in Tineo‘s favor “would confirm [his] pre-existing citizenship rather than grant [him] rights that [he] does not now possess.” Miller v. Albright, 523 U.S. 420, 432 (1998) (opinion of Stevens, J.). Or, more precisely, what Tineo seeks is “severance of the offending provisions so that the statute, free of its constitutional defect, can operate to determine whether citizenship was transmitted” by his father. Nguyen, 533 U.S. at 95–96 (O‘Connor, J., dissenting) (citing Miller, 523 U.S. at 488–89)
More to the point, the view espoused by the government has never commanded a majority of the Supreme Court, and, in fact, as the authoring Justice Scalia bemoaned, “[a] majority of the Justices . . . concluded otherwise in” Miller and “the Court . . . proceed[ed] on the same assumption” in Nguyen. Nguyen, 533 U.S. at 73–74 (Scalia, J., joined by Thomas, J., concurring) (concluding that it was thus “appropriate . . . to reach the merits of petitioners’ equal protection claims [and] join the opinion of the Court“).
The principal case cited by the government—INS v. Pangilinan, 486 U.S. 875, 883 (1988)—does not convince us otherwise. That case involved the judicial conferral of citizenship as an equitable remedy where there was no finding that the statute was constitutionally infirm. Section 701 of the 1940 Nationality Act provided an avenue by which noncitizens who served in World War II could naturalize without having to meet a residency or English-proficiency requirement. Id. at 877–88. That pathway presumed that a representative would be designated to receive petitions, conduct hearings, and grant naturalizations overseas. Id. at 878. For foreign-policy reasons, the Attorney General deprived the Philippine Islands of such a representative for a nine-month period. Id. at 879–80. This led to a stream of litigation by Filipino veterans who did not naturalize before the 1940 Act expired. Id. at 880. Two cases made it to the Ninth Circuit and were consolidated. Id. The Ninth Circuit held that the deprivation of a representative in the Philippines violated the mandate of the 1940 Act and awarded an equitable remedy by retroactively conferring citizenship. Id. at 882. The Supreme Court reversed because, like the doctrine of equitable estoppel, equitable remedies cannot “override a public policy established by Congress . . . .” Id. at 883 (internal quotation marks and citation omitted). That is, “the power to make someone a citizen of the United States has not been conferred upon the federal courts, like mandamus or injunction, as one of their generally applicable equitable powers.” Id. at 883–84 (emphasis added).
That statement and holding have no bearing where the Constitution is concerned. See Nguyen, 523 U.S. at 95–96 (O‘Connor, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting). In that instance, the notion that a court is not empowered to fashion a remedy finds support in only an exceedingly strict view of the plenary power doctrine. Seе Miller, 523 U.S. at 455–56 (Scalia, J., concurring in the judgment) (“It is in my view incompatible with the plenary power of Congress over those fields for judges to speculate as to what Congress would have enacted if it had not enacted what it did . . . .“). It was not too long ago that a similarly strict treatment of this doctrine resulted in the condonation of even the most blatant discrimination. See, e.g., The Chinese Exclusion Case, 130 U.S. 581, 610–11 (1889) (establishing the modern plenary-power doctrine in upholding the Chinese Exclusion Act); Fong Yue Ting v. United States, 149 U.S. 698, 732, 13 S. Ct. 1016, 1017 (1893) (holding that the political branches could deport residents based solely on their race and deem all people of “the Chinese race” incompetent to sign the affidavit needed for Chinese immigrants to remain lawfully); id. at 763 (Fuller, J., dissenting) (castigating the majority‘s decision as “incompatible with the immutable principles of justice, inconsistent with the nature of our government, and in conflict with the written constitution by which that government was created, and those principles secured“); Boutilier v. INS, 387 U.S. 118, 122–24 (1967) (holding that Congress could deem gay men excludable “as afflicted with a . . . psychopathic personality” under the plenary-power doctrine).
Unsurprisingly, then, while continuing to recognize the broad deference owed to Congress in immigration matters, the Supreme Court has in recent years curtailed the plenary-power doctrine‘s excesses, both by clarifying that rational-basis review still adheres upon its invocation and by limiting the classes of persons subject thereto. See, e.g., Morales-Santana, 137 S. Ct. at 1693–94; INS v. Chadha, 462 U.S. 919, 940–41 (1983) (rejecting the government‘s invocation of the plenary-power doctrine because the case concerned “whether Congress has chosen a constitutionally permissible means of implementing that power“). We, too, have recognized that the plenary-power doctrine—while affording Congress great discretion—“is subject to important constitutional limitations,” and “it is the province of the courts” to enforce those constraints. Osorio-Martinez v. Att‘y Gen. of U.S., 893 F.3d 153, 175 (3d Cir. 2018) (quoting Zadvydas v. Davis, 533 U.S. 678, 695 (2001)) (holding that children with special immigrant juvenile status may invoke the Suspension Clause).
That curtailment is further apparent from the Court‘s remedy analysis in Morales-Santana. After finding an unconstitutional infirmity with the provisions at issue, the Court engaged in precisely the sort of “speculat[ion] as to what Congress would have enacted if it had not enacted what it did” Justice Scalia cautioned against in his concurrence in Miller. The equal protection infirmity at issue was that the statute retained a longer physical-presence requirement for unwed citizen fathers to transmit citizenship to their children born abroad to a noncitizen mother than for similarly situated unwed citizen mothers. Morales-Santana, 137 S. Ct. at 1698. The petitioner asked the Court to extend the benefit of the shorter physical-presence requirement to the unwed fathers that the statute reserved for the unwed mothers. Id. The Court expressly stated that it had the option of doing just that or nullifying the benefit reserved for the unwed mothers such that both classes of parents would have a longer physical presence requirement. Id. Despite acknowledging that “extension, rather than nullification, is the proper course” it chose nullification because extension would have disrupted the statutory scheme in a way that would have meant a shorter physical-presence requirement for unwed fathers and mothers than for their wed counterparts. Id. at 1700.
To our case, then, the “proper course” is proper. Indeed, we are confronted with the same two remedial alternatives: we can remedy the unequal treatment by extending the benefit that
Gleaning that the proper course is extension is rather straightforward in this case. On the one hand, nothing supports nullification. This is because in the face of nullification—that is, the possibility that
On the other, there is no roadblock to granting extension. There is little support for the view that Congress intended that no unlegitimated child born out of wedlock would ever derive citizenship through her father. Even if it did, its enactment of a severability provision counsels against considering that conviction as so strong as to warrant depriving similarly situated mothers of the benefit in order to implement it. See The Immigration and Nationality Act of 1952 § 406, 66 Stat. 163, 281 (“If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.” (emphases added)).
In addition, contrary to the government‘s suggestion, Morales-Santana is no obstacle. The Court‘s reluctance to grant extension in Morales-Santana was driven by the fact that it would result in ascribing a discriminatory intent to Congress: that of “disadvantageous treatment of marital children in comparison to nonmarital children.” 137 S. Ct. at 1700. There is no argument that
So we will: Jose Francisco Tineo became a U.S. citizen when his father naturalized and he was “under the age of eighteen years” and “residing in the United States pursuant to a lawful admission for permanent residence . . . .” See
* * * * *
We acknowledge that, like Morales-Santana before him, Tineo does not engender much sympathy. He had other options available to seek citizenship in his own right. See, e.g.,
But he is not the Tineo that is our focus here. The result fostered by the gender classification at issue precluded Felipe Tineo from ever having his child derive citizenship from him. No matter how we attain
With this ruling, the consequence for Tineo‘s offenses is not removal, but rather what the law provides is permissible for any other citizen who is convicted of the same offenses. We will therefore grant the petition for review and vacate the order of removal. This course obviates the need to reach Tineo‘s argument that the BIA should have found that his passport established a presumption of citizenship that the government may rebut only by showing that the passport was fraudulently or illegally obtained. See Dessouki, 915 F.3d at 967 (citizenship finding mooted “lingering agency issues“).
SMITH, Chief Judge, concurring in part and dissenting in part.
When Felipe Tineo became a naturalized United States citizen, he acquired all the rights that adhere to that status. At the relevant time, this included the right to pass his citizenship to his children under the circumstances described in
The Government posits that
Recently, in Morales-Santana, the Supreme Court reaffirmed that it correctly decided Nguyen. In Nguyen, the parental acknowledgement requirement served the important interest of establishing “the parent‘s filial tie to the child.” Morales-Santana, 137 S. Ct. at 1694. The Supreme Court described the parental acknowledgement requirement as “a justifiable, easily met
Nguyen recоgnized two important interests that are served in establishing the existence of such a filial tie: (1) the importance of assuring the existence of a biological father-child relationship; and (2) the importance of developing a true interpersonal relationship between the child and the citizen parent who, in turn, has ties to the United States. Nguyen, 533 U.S. at 62–65. The differential treatment of mothers and fathers is based upon genuine differences at the time of the birth of a child, and does not rely on outdated stereotypes. See Nguyen, 533 U.S. at 68 (“There is nothing irrational or improper in the recognition that at the moment of birth . . . the mother‘s knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.“).
The legitimation requirement in
Section 1432 is actually more difficult to satisfy than the statute in Nguyen because
It need hardly be pointed out that we are not permitted to override the will of Congress and select other methods for designating the recipients of derivative citizenship. Indeed, in Nguyen, the Supreme Court rejected the suggestion that a DNA test should suffice, observing that the “Constitution . . . does not require that Congress elect one particular mechanism from among many possible methods of establishing paternity.” Nguyen, 533 U.S. at 63. Our review is limited to consideration of whether Congress‘s selection of state legitimation law is substantially related to its goal of establishing the existence of a true filial tie before citizenship may pass from a father to his non-marital child. As I see it, such a substantial relationship exists.
The majority is swayed by the outcome that Jose Tineo is forever barred from receiving derivative citizenship via his naturalized father because his mother died when Jose was 15, and the laws of the relevant jurisdictions (New York and the Dominican Republic) offered no method for Felipe to legitimate Jose after her death. For that reason, the majority dismisses the Government‘s primary justification for the statute. But in legislating, Congress is not required to anticipate every potential outcome that results from the
Equal protection does not require that “the statute under consideration must be capable of achieving its ultimate objective in every instance.” Id. Thus, although the result in the case we confront is that Jose Tineo cannot acquire derivative citizenship under
I therefore would deny the petition for review.
Notes
such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1)), and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.