Argued: May 31, 2013.
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Muneer I. Ahmad, Anne Lai, Jerome N. Frank, Legal Services Organization, New Haven, CT, for Petitioner.
Lana L. Vahab (Stuart F. Delery, Jeffrey S. Robins, on the brief), Office of Immigration Litigation, U.S. Dep't of Justice, Washington, D.C., for Respondent.
Matthew L. Guadagno, New York, NY, Vikram Badrinath, Tucson, AZ, for Amicus Curiae American Immigration Lawyers Association.
Before: HALL and LYNCH, Circuit Judges, and ENGELMAYER, District Judge.
PAUL A. ENGELMAYER, District Judge:
Petitioner Clerde Pierre, a citizen of Haiti, seeks review of a final order of the Board of Immigration Appeals (" BIA" ) affirming the decision of the Immigration Judge (" IJ" ) and rejecting Pierre's claim to automatic derivative citizenship under former 8 U.S.C. § 1432(a). See In re Clerde Pierre, No. A043 682 665 (BIA Apr. 30, 2010), rev'g No. A043 682 665 (Immig.Ct. Hartford Dec. 11, 2009); In re Clerde Pierre, No. A043 682 665 (BIA May 13, 2009), aff'g No. A043 682 665 (Immig.Ct. Hartford Feb. 25, 2009). The removal proceedings at issue were initiated following a 2006 criminal conviction for sale of a controlled substance and criminal possession of a weapon. The BIA found Pierre removable on the bases of these and other criminal convictions, and determined that Pierre had not acquired derivative United States citizenship under § 1432(a), which, until its repeal in 2000 in favor of a new statute, prescribed the conditions under which a child born outside the United States to alien parents automatically became a United States citizen based on the later naturalization of one or more parents.
In this appeal, Pierre principally challenges the constitutionality, under the Equal Protection Clause of the Fourteenth Amendment, of § 1432(a)(3). Section 1432(a)(3) defined the circumstances under which such a child would automatically acquire United States citizenship where one of the child's parents naturalized while the other parent was alive. Pierre argues that, as applied by the BIA to deny his claim to automatic derivative citizenship, § 1432(a)(3) unconstitutionally discriminated on the basis of legitimacy and gender, because, he claims, it disfavored children born out of wedlock whose later-naturalizing parent was the father. Pierre asks that we either (1) based on the canon of constitutional avoidance, construe § 1432(a)(3) to have conferred derivative citizenship on persons in his circumstance; or (2) hold § 1432(a)(3) unconstitutional, and as a remedy, extend its award of derivative citizenship to cover him. For the reasons that follow, we reject Pierre's challenge to the statute's constitutionality, and deny the petition for review.
On November 29, 1978, Pierre was born, in Haiti, to Lavaud Pierre (" Lavaud" ) and Marie Carmel Yverose Thelismé (" Marie" ). Lavaud and Marie were not married at the time of Pierre's birth; they never married. Pierre was not raised by his mother, who abandoned him at a young age.
In 1981, Lavaud moved to the United States, leaving Pierre in the care of his great grandmother, who cared for him until the age of six, when he was sent to live with members of Lavaud's extended family. In 1992, Lavaud became a naturalized citizen. In 1993, while still a minor, Pierre came to the United States as a lawful permanent resident to live with his father. Since then, Pierre has lived in Connecticut with his father, except during times when Pierre has been incarcerated.
In 1994, Lavaud applied for citizenship on behalf of Pierre pursuant to 8 U.S.C. § 1433. Upon the application by a citizen parent of a child born outside the United States who has not automatically acquired citizenship, § 1433 requires the Attorney
General to issue a certificate of citizenship to the parent, provided that designated conditions have been fulfilled. As part of this application, Lavaud submitted an affidavit from Marie, in which she formally disclaimed all parental rights. Lavaud's § 1433 application on Pierre's behalf, however, was, apparently, never decided. The record in this case does not disclose why.
In 2001, Pierre was convicted of two counts of robbery in the third degree. He was imprisoned for two years and served three years of probation.
On July 7, 2006, after his term of probation had been served, Pierre was convicted of the sale of a controlled substance and criminal possession of a weapon.
On May 15, 2008, after Pierre served his prison sentence for those convictions, the Government initiated removal proceedings. On September 25, 2008, an initial removal hearing was held.
In opposing his removal during these administrative proceedings, Pierre argued below that he cannot be removed, on two grounds: first, that he is an American citizen, having acquired automatic derivative citizenship pursuant to former 8 U.S.C. § 1432(a)(3); and, second, that if returned to Haiti he would be subject to torture, and he is therefore protected under the Convention Against Torture (" CAT" ). On February 25, 2009, the IJ issued a decision denying Pierre's application for asylum and withholding of removal under CAT without mentioning his claim for derivative citizenship. By order dated May 13, 2009, the BIA affirmed the IJ's denial of CAT relief and held that Pierre was not entitled to automatic United States citizenship under § 1432(a)(3), finding that Pierre had not become a citizen under that statute.
On May 20, 2009, Pierre timely filed a petition for review with this Court. However, before the Court considered the petition, on August 11, 2009, Pierre filed a motion to reopen with the BIA, asking it to reconsider its CAT decision in light of new evidence that Pierre suffers from paranoid-type schizophrenia. On September 15, 2009, the BIA granted the motion to reopen and remanded to the IJ.
The IJ again denied the CAT claim. On April 30, 2010, the BIA reversed the denial of CAT relief, finding it more likely than not that Pierre would be tortured in Haiti because he suffers from mental illness. The case was remanded and the IJ granted a deferral of removal to Haiti under CAT.
On May 26, 2010, Pierre filed the current petition for review of the BIA's April 30, 2010 decision. The petition challenged only the BIA's May 13, 2009 finding as to Pierre's citizenship under 8 U.S.C. § 1432(a).
This appeal raises questions about the construction, and the constitutionality, of former 8 U.S.C. § 1432(a). As of 1993, when Pierre became a lawful permanent resident, § 1432(a) read in full:
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.
8 U.S.C. § 1432(a) (emphases added).
Thus, for a child to have qualified for automatic citizenship under § 1432(a), the conditions listed in one of the first three subsections must have been fulfilled, and both the conditions listed in the last two subsections must have been fulfilled, i.e., the naturalization must have taken place while the child was under the age of 18, id. § 1432(a)(4); and the child must have been lawfully residing in the United States at the time of naturalization or have begun residing in the United States before the age of 18, id. § 1432(a)(5). The parties agree that, as of 1993, Pierre had ...