Howard Paul Levy v. U.S. Attorney General

Case: 16-14726 Date Filed: 09/21/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 16-14726 & 16-14972
Non-Argument Calendar
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Agency No. A039-072-266
HOWARD PAUL LEVY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 21, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
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Howard Paul Levy petitions for review of the Board of Immigration
Appeals’ order affirming his removal from the United States. Levy is a native and
citizen of Jamaica. His father and mother were unmarried but his father
acknowledged paternity at birth. Levy’s father became a lawful permanent
resident of the United States in 1978, obtained full custody of Levy in 1984, and
became a naturalized citizen in 1985. Levy became a lawful permanent resident of
the United States in 1985 and resided with his father. Levy’s mother never resided
nor acquired immigration status in the United States and died in 2013.
After a jury convicted Levy for conspiracy to commit mail fraud, 18 U.S.C.
§ 1349, the Department of Homeland Security began proceedings to remove him
from the country. The Immigration Judge sustained the removal charge. Levy
moved to terminate the proceedings, contending that he is a United States citizen
by way of his father’s naturalization. The IJ denied his motion and Levy appealed
to the BIA, which adopted and affirmed the IJ’s ruling and dismissed his appeal.
Levy contends that the derivative naturalization statute at issue, former
Immigration and Nationality Act § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1985),1
violates the equal protection component of the Fifth Amendment because it
discriminates based on gender. We have jurisdiction to consider and review de
1
When an individual seeks derivative citizenship from naturalization, the BIA applies the
law in effect when the last material condition was met. In Re Rodriguez-Tejedor, 23 I. & N.
Dec. 153, 163 (BIA 2001). In this case, the BIA applied the law in effect in 1985 — when
Levy’s father was naturalized.
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novo constitutional claims and questions of law related to the INA. 8 U.S.C.
§ 1252(a)(2)(D); see Cole v. U.S. Att’y Gen., 712 F.3d 517, 523 (11th Cir. 2013).
Former INA § 321(a) provides:
(a) 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:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the
parents is deceased; or
(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; and if
(4) Such naturalization takes place while such child is
under the age of eighteen years; and
(5) 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.
INA § 321(a) (1985). Levy could derive citizenship only under the first clause of
§ 321(a)(3), which confers citizenship based on “[t]he naturalization of the parent
having legal custody of the child when there has been a legal separation of the
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parents.”2 The IJ and BIA determined that Levy did not derive citizenship under
that provision because his parents never married and, as a result, never “legally
separat[ed].” Id. § 321(a)(3). Levy argues that the marital status criterion
constitutes gender discrimination based on a “caregiver/breadwinner dichotomy.”
According to him, if his mother instead of his father had been a United States
citizen, he would be a citizen.
Levy misreads the statute. For a legitimated child such as Levy, the
pertinent paragraph refers only to a “parent having legal custody of the child” and
does not distinguish between mothers and fathers. Id. It does not discriminate
based on gender because it favors neither mothers nor fathers. Had the situation
been reversed — if Levy’s mother had become a lawful permanent resident,
obtained citizenship, and raised him in the United States while his father remained
in Jamaica — Levy still would not have obtained citizenship based on her
naturalization because his parents were not “legally separat[ed].” As a result, the
statute does not implicate, much less violate, the equal protection component of the
Fifth Amendment based on gender discrimination.
2
Section 321(a)(1) does not apply because Levy’s mother was never naturalized.
Section 321(a)(2) does not apply because it is conditioned on the non-naturalizing parent dying
before the child turns eighteen, see INA § 321(a)(4), and Levy’s mother died after he turned
eighteen. And the second clause of § 321(a)(3) does not apply because Levy’s mother was never
naturalized and his “paternity [was] established by legitimation” when his father acknowledged
paternity. See Matter of Cross, 26 I&N 485, 486 (BIA 2015) (noting that under the Jamaican
Status of Children Act, the paternity of a child born out of wedlock is legitimated if the father
acknowledges paternity).
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To the extent Levy meant to argue that § 321(a)(3) violates equal protection
because it discriminates based on legitimacy, he has abandoned that argument.
Levy’s initial brief focuses solely on gender bias and mentions legitimacy only in
passing (if at all) and without citations to authority. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an
appellant abandons a claim when he either makes only passing references to it or
raises it in a perfunctory manner without supporting arguments and authority.”).
The fact that Levy discussed a legitimacy based challenge in his reply brief does
not make up for that deficiency. See United States v. Evans, 473 F.3d 1115, 1120
(11th Cir. 2006) (“[A]rguments raised for the first time in a reply brief are not
properly before a reviewing court.”) (quotation marks omitted). As a result, we
decline to consider whether former INA § 321(a)(3) impermissibly discriminates
based on legitimacy.
PETITION DENIED. 3
3
Levy moved to file a supplemental brief on potential remedies following the Supreme
Court’s decision in Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678 (2017). Because
we affirm the BIA’s final order, Levy’s motion is DENIED AS MOOT.
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