Lawal v. Atty Gen USA , 89 F. App'x 774 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-3-2004
Lawal v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2354
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2354
OLUKOLADE LAWAL,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Nos. 00-cv-2264, 02-cv-0265)
District Judge: Honorable Richard P. Conaboy
Argued
January 15, 2004
Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.
(Filed February 3, 2004)
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TODD R. GEREMIA, ESQ.1 (Argued)
Jones Day
222 East 41st Street
New York, New York 10017-6702
Attorney for Petitioner
PETER D. KEISLER, ESQ.
Assistant Attorney General, Civil Division
LINDA S. WERNERY, ESQ.
Senior Litigation Counsel
Office of Immigration Litigation
SUSAN C. LYNCH, ESQ. (Argued)
Attorney
U.S. Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal requires us to decide whether the district court erred in denying
Olukolade Lawal’s three consolidated petitions for habeas corpus. Lawal contends that
the U.S. Immigration and Naturalization Service (“INS”)2 illegally held him in custody as
1
The court is appreciative of the willingness of Mr. Geremia and his law firm,
Jones Day, to undertake representation in this case on a pro bono basis.
2
The INS is now known as the Bureau of Citizenship and Immigration Services
within the Department of Homeland Security. See Homeland Security Act of 2002, Pub.
L. No. 107-296, § 451, 116 Stat. 2135, 2195 (2002) (codified at 6 U.S.C. § 271 (Supp.
2003)). Because the operative events in this case took place before the name change, INS
is used here.
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a removable alien even though he had achieved derivative citizenship under either the
Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431, or the former Section 321 of
the Immigration and Nationality Act, 8 U.S.C. § 1432 (1988) (repealed 2000). We will
affirm.
I.
Because we write exclusively for the benefit of the parties, who are familiar with
the facts and the proceedings below, our discussion of the background will be limited.
Lawal is a 30-year-old native of Nigeria who was admitted to the United States as a
lawful permanent resident in 1987. Lawal moved to the United States to live with his
father, who married a United States citizen in 1979 and was naturalized in 1989, and his
stepmother. Lawal’s parents were never married.
On December 15, 1997, Lawal was convicted in the state of New York for selling
cocaine. As a result of this conviction, the INS initiated deportation proceedings. See 8
U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(B). Lawal contends that he is not subject
to removal notwithstanding the conviction because he is a citizen.
II.
The district court construed Lawal’s derivative citizenship arguments in the
habeas petitions as an appeal from the August 9, 2001 final order of deportation by the
Board of Immigration Appeals (“BIA”). Noting Lawal’s 1997 New York conviction for
the criminal sale of a controlled substance, the district court transferred Lawal’s
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challenge of the final order of deportation to us. See 8 U.S.C. § 1252(a)(2)(C) (“no court
shall have jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered in [8 U.S.C. §
1227(a)(2)(A)(iii), (B)]”); Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002).
We will not accept jurisdiction under the district court’s transfer order. Under 28
U.S.C. § 1631, a court may transfer a case to “any other such court in which the action or
appeal could have been brought at the time it was filed or noticed. . . .” None of Lawal’s
habeas petitions – dated December 26, 2000, April 10, 2001 and February 19, 2002 –
was filed in the district court within 30 days of the BIA’s final order of removal on
August 9, 2001. See 8 USC § 1252(b)(1) (setting a 30-day deadline for petitions for
review of final orders of removal). Accordingly, we hold that the transfer to us was
inappropriate.
III.
Assuming arguendo that it had jurisdiction to consider the habeas petitions even if
it could not review the final order of removal, the district court denied Lawal’s three
consolidated habeas petitions. The district court properly exercised its jurisdiction to
consider the consolidated petitions. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d
Cir. 2001) (“district courts retain jurisdiction to hear habeas petitions filed by aliens
subject to deportation for having committed certain criminal offenses”).
We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a) to
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review the district court’s final order denying the petitions. “We exercise plenary review
over the District Court’s legal conclusions in a habeas proceeding. . . .” Werts v.
Vaughn, 228 F.3d 178, 191 (3d Cir. 2000).
IV.
We agree with the district court that the CCA does not apply retroactively to grant
derivative citizenship to Lawal. The CCA applies only to individuals born outside of the
United States who satisfy several conditions, including a requirement that the individual
be “under the age of eighteen years” on the statute’s effective date, February 27, 2001.
See 8 U.S.C. § 1431(a); Child Citizenship Act of 2000, Pub. L. No. 106-395, § 104, 114
Stat. 1631, 1633 (2000); Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003); United
States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir. 2002); Hughes v. Ashcroft, 255 F.3d
752, 759-760 (9th Cir. 2001); Nehme v. INS, 252 F.3d 415, 431 (5th Cir. 2001). Lawal,
who was born on December 30, 1973, was 27 years old on the day the CCA became
effective. Accordingly, the CCA’s automatic citizenship provisions do not apply to him.
V.
We now turn to Lawal’s contention that he gained citizenship under the former
Section 321 of the Immigration and Nationality Act by virtue of the naturalization of his
father in 1989. The statute in effect at the time Lawal’s father was naturalized provided
in relevant part:
(a) A child born outside of the United States of alien parents . . . becomes a
citizen of the United States upon fulfillment of the following conditions:
5
....
(3) 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. . . .
8 U.S.C. § 1432 (1988) (repealed 2000).
As acknowledged by the district court, the immigration judge who initially
determined that Lawal met the requirements for derivative citizenship noted that the
former Section 321 left a gap for alien children born out of wedlock who sought to
obtain citizenship by virtue of their father’s naturalization. Lawal further contends that
we should interpret the former Section 321 to avoid what he views as the constitutional
problem posed by an unjustified gender-based classification.
Lawal recognizes, however, and we emphasize here, that Lawal has not asked us
to declare the former Section 321 unconstitutional as a violation of the Equal Protection
Clause. We further emphasize that Congress closed the gap in the former Section 321
and eliminated any suggestion of gender-based classification when it adopted the CCA.
See 8 U.S.C. § 1431.
The district court held that Lawal did not satisfy the conditions for derivative
citizenship in the former Section 321 because, even though Lawal was in the legal
custody of his father at the time of his father’s naturalization, Lawal’s parents were never
married and thus could not have undergone a “legal separation.” Lawal urges us to adopt
the view that Lawal’s parents are legally separated precisely because they were never
6
married. This argument, however, stretches the meaning of “legal separation” too far.
We start with “the language employed by Congress . . . and we assume that the
legislative purpose is expressed by the ordinary meaning of the words used.” INS v.
Phinpathya, 464 U.S. 183, 189 (1984) (internal quotations and citations omitted). It is
clear to us that Congress intended the term “legal separation” in the former Section
321(a)(3) to presume the preexistence of a legally binding marriage. In defining “legal
separation,” Black’s Law Dictionary advises us to “[s]ee SEPARATION (1).” Black’s
Law Dictionary 907 (7th ed. 1999). “[S]eparation. 1.” is described as “[a]n arrangement
whereby a husband and wife live apart from each other while remaining married, either
by mutual consent or by judicial decree[.]” Id. at 1369. See also Nehme, 252 F.3d at
426 (“in the United States, the term ‘legal separation’ is uniformly understood to mean
judicial separation”) (emphasis in original); Wedderburn v. INS, 215 F.3d 795, 799 (7th
Cir. 2000) (“it is impossible to see how people who have never been joined can be
separated”).
If the term “legal separation” included situations in which there had been no
marriage, the term would be superfluous. See id. (noting that the unmarried parent of a
child seeking citizenship was “‘legally separated’ from more than six billion people:
everyone on the planet other than his wife”). The view urged on us by Lawal would
“defy the axiom of statutory construction that whenever possible each word in a statutory
provision is to be given meaning and not to be treated as surplusage.” Acceptance Ins.
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Co. v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (internal quotations and citations
omitted).
The district court also rejected Lawal’s argument that he could have gained
citizenship by virtue of his father’s naturalization under the provision of the former
Section 321(a)(3) covering “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.” 8
U.S.C. § 1432(a)(3) (1988) (repealed 2000). On its face, this provision clearly does not
include situations, such as that of Lawal, in which the naturalized custodial parent is the
father rather than the mother. Still, Lawal contends that the provision’s purported
unjustified gender-based classification requires us to read the statute so as to grant
derivative citizenship to Lawal. This we will not do.
Again, we emphasize that our task is not to determine the constitutionality of the
former Section 321 in light of the Equal Protection Clause. We must determine only
whether Congress, “[i]n the exercise of its broad power over naturalization and
immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); see also Miller v. Albright,
523 U.S. 420, 434 n.11 (1998), intended the former Section 321 to apply to someone in
Lawal’s situation. In reviewing the choices made by Congress in this area, we are
mindful that “such decisions are frequently of a character more appropriate to either the
Legislature or the Executive than to the Judiciary.” Mathews, 426 U.S. at 81.
The former Section 321 is based on the general requirement that for a child born
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outside the United States to acquire citizenship, both parents must naturalize. 8 USC §
1432(a)(3) (1988) (repealed 2000). In carving out certain limited exceptions to prevent
hardship and preserve the family unit, Congress did not permit either an unwed mother or
an unwed father alone to transmit citizenship to a legitimated child when the other parent
was still living. It is true that the former Section 321 allows unwed mothers to transmit
citizenship to their children for whom paternity has not been legitimated but the statute
does not have a similar provision for unwed fathers. This is “neither surprising nor
troublesome from a constitutional perspective” because “[f]athers and mothers are not
similarly situated with regard to the proof of biological parenthood.” Nguyen v. INS,
533 U.S. 53, 63 (2001).
Ultimately, we need not determine the level of scrutiny that would apply to a
review of the former Section 321’s constitutionality in an equal protection case. Nor do
we need to determine whether the distinction between unmarried mothers and unmarried
fathers in the former Section 321(a)(3) “is substantially related to important
governmental objectives.” Miller, 523 U.S. at 434 n.11 (discussing the gender
distinction in 8 U.S.C. § 1409, the out-of-wedlock children citizenship provision of the
Immigration and Nationality Act). We are convinced that the canon of construction
urged on us by Lawal – that we must read the former Section 321 “to avoid serious
constitutional problems,” Sandoval v. Reno, 166 F.3d 225, 237 (3d Cir. 1999) – does not
require us to turn the former Section 321 on its head. By its terms, the statute does not
9
apply to Lawal.
We have considered all of the arguments advanced by the parties and conclude
that no further discussion is necessary. We conclude that the district court did not err in
holding that Lawal did not gain derivative citizenship under either the CCA or the former
Section 321(a)(3). Accordingly, the judgment of the district court denying Lawal’s three
consolidated habeas corpus petitions will be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
s/Ruggero J. Aldisert
Circuit Judge
DATED: February 3, 2004
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