Ruben Lopez Ramos v. William Barr ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1728
RUBEN LOPEZ RAMOS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A039-091-760
____________________
ARGUED SEPTEMBER 25, 2019 — DECIDED NOVEMBER 7, 2019
____________________
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
RIPPLE, Circuit Judge. Ruben Lopez Ramos brings this pe-
tition to review the removal decision of the Board of Immi-
gration Appeals (“BIA”). He claims that the statutory
scheme set forth in the since-amended 8 U.S.C. § 1401 (1968)
(amended 1986) and §§ 1431–32 (1968) (amended 2000) vio-
lates the Equal Protection guarantee of the Fifth Amend-
ment’s Due Process Clause because those provisions prevent
2 No. 19-1728
him from deriving citizenship through his United States citi-
zen mother. The Immigration Judge (“IJ”), noting that the
immigration court lacks jurisdiction over constitutional
questions, limited her analysis to the provisions of the Im-
migration and Nationality Act (“INA”) and denied
Mr. Lopez’s motion to terminate removal proceedings. The
BIA affirmed without opinion the decision of the IJ.1
Mr. Lopez timely seeks review of the removal decision here. 2
Because the statutory scheme has a rational basis, there is no
equal protection violation. Consequently, we deny the peti-
tion for review.
I.
BACKGROUND
Mr. Lopez was born in Mexico on November 19, 1974, to
Bertha Ramos de Lopez and Jaime Lopez Gonzalez. Ms. Ra-
mos de Lopez, although born in Mexico, had acquired Unit-
1 The jurisdiction of the Board of Immigration Appeals (“BIA”) is prem-
ised on 8 U.S.C. § 1229a.
2 Our jurisdiction is premised on 8 U.S.C. § 1252(a)(2)(D) and (b)(5)(A).
The Commissioner contends that this court is barred from review by
§ 1252(a)(2)(C), which precludes review of final orders of removal
against aliens removable by reason of having committed a criminal of-
fense covered in 8 U.S.C. § 1182(a)(2) or § 1227(a)(2)(A)(iii), (B), (C), or
(D). Government’s Br. 2–3. It is undisputed that Mr. Lopez committed a
criminal offense covered by § 1227(a)(2)(A)(iii) and (a)(2)(B)(i). However,
whether § 1252(a)(2)(C) bars review depends on whether Mr. Lopez is a
citizen, a question we have jurisdiction to decide. Section 1252(b)(5)(A)
provides: “If the petitioner claims to be a national of the United States
and the court of appeals finds from the pleadings and affidavits that no
genuine issue of material fact about the petitioner’s nationality is pre-
sented, the court shall decide the nationality claim.”
No. 19-1728 3
ed States citizenship at birth through her mother. Ms. Ramos
de Lopez entered the United States in 1978 and received a
certificate of citizenship in 1990. Mr. Lopez’s father’s immi-
gration status is unknown.
Mr. Lopez was admitted to the United States as a lawful
permanent resident in January 1985. On November 12, 2009,
he was convicted of two counts of conspiracy to distribute
methamphetamine and was sentenced to 122 months’ im-
prisonment. During his incarceration, Immigration and Cus-
toms Enforcement (“ICE”) officials advised him that he
might have derived United States citizenship through his
mother. After his release, he filed an application for a certifi-
cate of citizenship but later withdrew it.
On September 6, 2018, the Department of Homeland Se-
curity (“DHS”) filed a notice to appear before the immigra-
tion court, initiating removal proceedings against Mr. Lopez.
The notice to appear alleged that Mr. Lopez is not a citizen
of the United States but a native and citizen of Mexico. It fur-
ther alleged that he was admitted to the United States as an
immigrant and later convicted of two counts of conspiracy to
distribute methamphetamine. It charged that these convic-
tions rendered him removable under § 1227(a)(2)(A)(iii) and
(a)(2)(B)(i). 3
3 8 U.S.C. § 1227(a)(2)(B)(i) reads:
Any alien who at any time after admission has been convict-
ed of a violation of (or a conspiracy or attempt to violate)
any law or regulation of a State, the United States, or a for-
eign country relating to a controlled substance (as defined in
section 802 of Title 21), other than a single offense involving
(continued … )
4 No. 19-1728
Although he admitted the other allegations in the notice
to appear, Mr. Lopez denied that he is not a citizen or na-
tional of the United States. He maintained that the sections
of the INA in force at the time of his birth that prevented
him from automatically deriving citizenship violated the
Equal Protection Clause of the Fifth Amendment. In his
view, former statutes 8 U.S.C. §§ 1431–32 (1968) (amended
2000) impermissibly distinguished between children born
abroad to two noncitizen parents and children born abroad
to one citizen parent and one noncitizen parent.
Noting the immigration court’s lack of jurisdiction over
constitutional issues, the IJ declined to consider Mr. Lopez’s
equal protection challenge and ruled that Mr. Lopez was not
a citizen of the United States and therefore was removable.
The BIA affirmed without opinion.
On April 18, 2019, Mr. Lopez filed a motion for an emer-
gency stay of removal. We denied his motion, holding that
he had not made the requisite showing of irreparable harm
or substantial likelihood of success on the merits.
Judge Hamilton dissented. He noted that Mr. Lopez was re-
movable “because of an odd, arguably irrational, conun-
drum” and that a stay of removal would do no harm and
4
would give the court time to consider carefully the issues.
( … continued)
possession for one’s own use of 30 grams or less of marijua-
na, is deportable.
8 U.S.C. § 1227(a)(2)(A)(iii) reads: “Any alien who is convicted of an ag-
gravated felony at any time after admission is deportable.”
4 R.9 at 1–2.
No. 19-1728 5
Mr. Lopez timely filed this petition for review of the BIA de-
5
cision.
II.
DISCUSSION
A.
Mr. Lopez bases his claim to citizenship on his member-
ship in the class of children who fall under former 8 U.S.C.
§ 1431 (1968) (amended 2000). 6 He is not, however, a mem-
ber of the class described in this provision. That statute ad-
dressed the automatic conferral of citizenship on the minor
child of one citizen parent and one noncitizen parent “if such
alien parent is naturalized.” § 1431(a) (emphasis added). Noth-
ing in the record suggests that Mr. Lopez’s father was ever
5 Because the BIA affirmed without opinion the IJ’s decision, we review
the IJ’s decision as the final agency determination. Georgis v. Ashcroft, 328
F.3d 962, 966–67) (7th Cir. 2003) (explaining that, in such a situation, “the
IJ’s decision becomes that of the BIA for purposes of judicial review”).
6 Former 8 U.S.C. § 1431 (1968) (amended 2000) provided in relevant
part:
(a) A child born outside of the United States, one of whose
parents at the time of the child’s birth was an alien and the
other of whose parents then was and never thereafter ceased
to be a citizen of the United States, shall, if such alien parent
is naturalized, become a citizen of the United States, when —
(1) such naturalization takes place while such child is under
the age of sixteen years; and
(2) such child is residing in the United States pursuant to a
lawful admission for permanent residence at the time of
naturalization or thereafter and begins to reside permanent-
ly in the United States while under the age of sixteen years.
6 No. 19-1728
naturalized, nor does Mr. Lopez make such a claim. The IJ
concluded—and the Government relies on the assumption—
that a related but different statute, former § 1401(a)(7) (1968)
(amended 1986), 7 applied to Mr. Lopez at the time of his
birth. Section 1401 “provides the general framework for the
acquisition of citizenship at birth.” Sessions v. Mo-
rales-Santana, 137 S. Ct. 1678, 1686–87 (2017). Subsection
(a)(7) of that provision governed the nationality and citizen-
ship of the born-abroad child of a citizen and a noncitizen. It
required that the citizen parent satisfy a “physical presence”
minimum of ten years’ residence in the United States prior
to the child’s birth. § 1401(a)(7).
In essence, then, Mr. Lopez challenges a statutory scheme
that automatically conferred citizenship on some children
born abroad but not on others. He submits that the statutory
scheme is discriminatory because a child claiming citizen-
ship through a parent born in the United States must
demonstrate that the parent had a physical presence in the
United States for ten years. By contrast, a child whose parent
7 Former 8 U.S.C. § 1401(a)(7) (1968) (amended 1986) provided:
[A] person born outside the geographical limits of the Unit-
ed States and its outlying possessions of parents one of
whom is an alien, and the other a citizen of the United States
who, prior to the birth of such person, was physically pre-
sent in the United States or its outlying possessions for a pe-
riod or periods totaling not less than ten years, at least five of
which were after attaining the age of fourteen years … .
The statute has since been amended and currently contains a residency
requirement of five years’ presence, five of which must be after the age
of fourteen. 8 U.S.C. § 1401(g) (2012).
No. 19-1728 7
acquired United States citizenship through naturalization
need not show such physical presence of the parent. He
maintains that this statutory scheme violates the Equal Pro-
tection Clause because it made the citizenship of the children
in the former class conditional but granted automatic citi-
zenship to children in the latter group.
B.
The principles that must govern our evaluation of
Mr. Lopez’s claim are well-established. United States citizen-
ship is acquired either by birth or by naturalization. Miller v.
Albright, 523 U.S. 420, 423 (1998). The citizenship of those
who are “born or naturalized in the United States, and sub-
ject to the jurisdiction thereof” is constitutionally guaranteed
and not subject to abridgment. U.S. Const. amend. XIV, § 1;
Afroyim v. Rusk, 387 U.S. 253, 262 (1967). By contrast,
“[p]ersons not born in the United States acquire citizenship
by birth only as provided by Acts of Congress.” Miller, 523
U.S. at 424. Mr. Lopez contends that the statutory scheme
under which he did not derive citizenship at birth is an un-
constitutional exercise of Congress’s power.
Our review of a constitutional question is de novo. An-
derson v. Milwaukee Cty., 433 F.3d 975, 978 (7th Cir. 2006).
When examining an equal protection claim under the Fifth
Amendment, 8 we first determine whether the statute “im-
pacts a fundamental right or targets a suspect class. When no
8 The Supreme Court’s approach to equal protection claims under the
Fifth Amendment “has always been precisely the same as to equal pro-
tection claims under the Fourteenth Amendment.” Weinberger v. Wiesen-
feld, 420 U.S. 636, 638 n.2 (1975).
8 No. 19-1728
suspect class or fundamental right is involved, we employ a
rational basis test to determine whether the legislative act is
constitutional.” Eby-Brown Co., LLC v. Wisconsin Dep’t. of
Agric., 295 F.3d 749, 754 (7th Cir. 2002). This rule is particu-
larly appropriate when we are dealing with distinctions
made in the context of the admission or removal of nonciti-
zens. Canto v. Holder, 593 F.3d 638, 641 (7th Cir. 2010). In this
area, Congress has exceptionally broad power to determine
the classes of noncitizens who may enter the Country. See
Fiallo v. Bell, 430 U.S. 787, 794 (1977); see also Kleindienst v.
Mandel, 408 U.S. 753, 765–67 (1972). If “any plausible reason
could provide a rational basis for Congress’ decision to treat
the classes differently, our inquiry is at an end, and we may
not test the justification by balancing it against the constitu-
tional interest asserted by those challenging the statute.” La-
ra-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001) (quotation
marks omitted) (citations omitted). Mr. Lopez does not
maintain that he is a member of a suspect or protected class
or that his fundamental rights are at stake. See Mo-
rales-Santana, 137 S. Ct. at 1689 (applying heightened scruti-
ny to gender-based classification in the same statutory
scheme at issue here). The parties therefore appropriately
focus their arguments on whether the since-amended statu-
tory scheme is supported by a rational basis.
The requirement of the statutory provision at the heart of
this case can be stated succinctly: A person born abroad to
one citizen and one noncitizen parent did not automatically
derive citizenship at birth unless the citizen parent had been
present physically in the United States before the child’s
birth for at least ten years. Five or more of those years had to
be after the parent attained the age of fourteen. Mr. Lopez
does not contend that this provision does not apply to him.
No. 19-1728 9
He also does not contest that his mother (the citizen parent)
did not fulfill this residency requirement. Instead, he simply
maintains that there is no rational basis on which to distin-
guish between him—a minor child, born abroad to a United
States citizen, who lawfully entered the Country and lived in
the custody of that United States citizen parent in the United
States—and a lawful permanent resident minor child living
in the custody of a lawful permanent resident parent when
that parent naturalizes.
As the party challenging the constitutionality of the stat-
utory scheme’s differential treatment of the two groups,
Mr. Lopez bears the burden of establishing that there is no
“reasonably conceivable state of facts that could provide a
rational basis for the classification.” United States v. Nagel,
559 F.3d 756, 760 (7th Cir. 2009). This is indeed a high bur-
den because rational basis review is quite limited. See gener-
ally Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483
(1955) (applying minimal scrutiny in rational basis review).
“Governmental action only fails rational basis scrutiny if no
sound reason for the action can be hypothesized.” Lamers
Dairy Inc. v. U.S. Dep’t. of Agric., 379 F.3d 466, 473 (7th Cir.
2004). “Practically, our [rational basis] review must be highly
deferential.” Id.
Acknowledging that he must show that there is no ra-
tional basis on which to distinguish between the two classes
of children, Mr. Lopez submits that the statutory scheme
evinces a congressional concern about “the influence of an
alien father (or a U.S. citizen father, who had never resided
in the United States and thereby might have greater
10 No. 19-1728
ties/allegiance to another country) over the political ideology
9
of what would otherwise be his U.S. citizen child.” He of-
fers no source for this proposed rationale. Further, he main-
tains that nothing in the legislative history provides an ex-
planation for the differential treatment. Mr. Lopez also sub-
mits that the eventual passage of the Child Citizenship Act
of 2000, which eliminated the distinction between the two
classes, “wholly belie[s]” the assertion that there is a rational
10
basis for the “inequitable classification.”
The Government proffers the justification that Congress
intended to confer citizenship on individuals who had a
substantial connection to the United States.
The rational basis for that provision is to extend citi-
zenship to those with ties or allegiance to the United
States, rather than the foreign-born offspring of all in-
dividuals who were born in the [C]ountry (or them-
selves derived citizenship through a parent) but did
11
not reside, settle, or build a life here.
As the Government sees it, the parents of both classes of
children must manifest an intent to settle or make a home in
the United States. A citizen parent must satisfy a residency
requirement under former § 1401(a)(7); a parent not born in
the United States must satisfy a naturalization requirement
under former § 1432. Notably, at the relevant time, the natu-
ralization process carried—and still carries—a residency re-
9 Appellant’s Br. 8–9.
10 Appellant’s Br. 10.
11 Government’s Br. 21.
No. 19-1728 11
quirement for the applicant. 8 U.S.C. § 1427 (1968) (amended
1990). 12 The Supreme Court of the United States has
acknowledged the “legitimate concern of Congress that
those who bear American citizenship and receive its benefits
have some nexus to the United States.” Rogers v. Bellei, 401
U.S. 815, 832 (1971) (internal citation omitted). Indeed, it has
described residence in the Country as “the talisman of dedi-
cated attachment.” Id. at 834 (citation omitted).
The Government also notes that the legislative history of
the statute makes clear that the legislation was aimed at pre-
venting
the perpetuation of United States citizenship by citi-
zens born abroad who remain there, or who may have
been born in the United States but who go abroad as
infants and do not return to this country. Neither
such persons nor their foreign-born children would
have a real American background, or any interest ex-
12Former 8 U.S.C. § 1427 (1968) (amended 1990) provided in relevant
part:
(a) No person … shall be naturalized unless such petitioner,
(1) immediately preceding the date of filing his petition for
naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States
for at least five years and during the five years immediately
preceding the date of filing his petition has been physically
present therein for periods totaling at least half of that time,
and who has resided within the State in which the petitioner
filed the petition for at least six months,
(2) has resided continuously within the United States from
the date of the petition up to the time of admission to citi-
zenship … .
12 No. 19-1728
cept that of being protected by the United States Gov-
13
ernment while in foreign countries.
Our colleagues on the Court of Appeals for the Second
Circuit have confronted a situation like the one before us to-
day. Their resolution of that case is instructive. In Colaianni
v. INS, 490 F.3d 185 (2d Cir. 2007), the petitioner was the
adopted child of two native-born United States citizens. He
argued that former §§ 1431–33 arbitrarily favored foreign-
born adopted children of subsequently naturalized citizens over
foreign-born adopted children of native-born United States
citizens. The children of subsequently naturalized citizens
received automatic citizenship; parents who were citizens of
the United States had to apply for a certificate of citizenship
on behalf of their children. Colaianni, 490 F.3d at 188. The
Government articulated two reasons for the distinction: that
it promoted an appreciation of the rights and obligations of
citizenship and that it deterred immigration fraud. Id. The
Second Circuit held that these interests were sufficient to
survive rational basis review. Id. In its view, requiring an af-
firmative act to secure derivative citizenship is rationally re-
lated to the legitimate aim of deterring immigration fraud.
Id.
Notably, in Dent v. Sessions, 900 F.3d 1075 (9th Cir. 2018),
cert. denied sub nom. Dent v. Barr, 139 S. Ct. 1472 (2019), our
colleagues on the Court of Appeals for the Ninth Circuit ex-
plicitly followed the Second Circuit and upheld former
§ 1433. The petitioner in Dent, the adopted child of a United
States citizen, was denied naturalization for failure to prose-
13 Government’s Br. 20–21 (quoting S. Rep. No. 76-2150, at 4 (1940)).
No. 19-1728 13
cute. He challenged the constitutionality of former § 1433,
which required that United States citizens petition for the
naturalization of foreign-born adopted children while con-
ferring automatic citizenship on children born abroad and
adopted by naturalizing parents. The court held that the
statute satisfied the rational basis test. It concluded that the
Government had a legitimate interest in deterring immigra-
tion fraud and that requiring citizen parents to affirmatively
act to secure naturalization for their adopted children served
this interest. The requirement put citizen parents on par with
naturalizing parents, since “the intensive naturalization pro-
cess gave the government the opportunity to inquire into
naturalizing parents’ relationships with their previously
adopted children.” Id. at 1082.
The Second and Ninth Circuits held that the
since-amended statutory scheme was justified under the ra-
tional basis test. We must follow the same course. The
since-amended statutory scheme here bears a rational rela-
tion to the Government’s legitimate interest in ensuring that
children born abroad who become citizens have ties to the
United States.
The decision of the Second Circuit in Colaianni also pro-
vides persuasive guidance on Mr. Lopez’s argument that the
subsequent amendment of the statutory scheme proves the
unconstitutionality of the earlier version. “The fact that the
[Child Citizenship Act of 2000] eliminated the statutory dis-
tinction [petitioner] challenges ‘is not determinative as to
whether the former statute is rationally related to a legiti-
mate government interest.’” Colaianni, 490 F.3d at 188 (quot-
ing Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005)).
14 No. 19-1728
CONCLUSION
The statutory scheme of which Mr. Lopez complains sur-
vives the rational basis test. The Government has offered a
plausible rationale for the distinction between children of
one citizen parent and one noncitizen parent and children of
two noncitizen, naturalizing parents. Accordingly, the deci-
sion of the BIA is affirmed.
AFFIRMED