17‐60
Gonzalez‐Reyes v. Whitaker
BIA
Reid, IJ
A042 701 219
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 30th day of November, two thousand eighteen.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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MANUEL GONZALEZ‐REYES, AKA Manuel
Nicolas Gonzalez‐Reyes,
Petitioner,
v. 17‐60
MATTHEW G. WHITAKER, Acting United States
Attorney General,
Respondent.
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* Judge John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR PETITIONER: ANDREW D. OʹTOOLE, OʹToole & OʹToole
PLLC, Hartford, CT
FOR RESPONDENT: STEFANIE NOTARINO HENNES, Trial
Attorney (Terri J. Scadron, Assistant Director,
Office of Immigration Litigation, on the brief),
for Chad A. Readler, Assistant Attorney
General, Civil Division, United States
Department of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (ʺBIAʺ) decision, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Manuel Gonzalez‐Reyes, a native and citizen of the Dominican
Republic, seeks review of the December 16, 2016 decision of the BIA affirming the
August 10, 2016 decision of an immigration judge (ʺIJʺ) ordering him removed to the
Dominican Republic. In re Manuel Gonzalez‐Reyes, No. A042 701 219 (B.I.A. Dec. 16,
2016), affʹg No. A042 701 219 (Immig. Ct. Batavia Aug. 10, 2016).
Gonzalez‐Reyes was born outside the United States, in 1972, of alien
parents who were not married. His father relocated to the United States and was
naturalized as an American citizen in 1979. In 1990, at the age of 17, Gonzalez‐Reyes
was admitted to the United States as a lawful permanent resident, in his fatherʹs
custody. Gonzalez‐Reyes contends that he became a United States citizen derivatively
through his fatherʹs naturalization. Both the IJ and the BIA rejected the claim of
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derivative citizenship. We assume the partiesʹ familiarity with the underlying facts and
procedural history in this case.
We have jurisdiction to review Gonzalez‐Reyesʹs derivative citizenship
claim despite the bar to review based on his criminal convictions because citizenship is
a question of law. 8 U.S.C. § 1252(a)(2)(C), (D); Gil v. Sessions, 851 F.3d 184, 186 n.1 (2d
Cir. 2017). ʺWe review the question of derivative citizenship de novo where, as here, the
petitioner claims to be a national of the United States and the record presents no
genuine issue of material fact about the petitionerʹs nationality.ʺ Gil, 851 F.3d at 186
(internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(5)(A).
In determining whether Gonzalez‐Reyes derived citizenship through his
fatherʹs naturalization, we look to the law in effect at the time Gonzalez‐Reyes claims he
fulfilled the last requirement for derivative citizenship. See Gil, 851 F.3d at 186. In 1990,
when Gonzalez‐Reyes entered the United States as a permanent resident, the law
governing derivative citizenship provided in relevant part that ʺ[a] child born outside
of the United States of alien parents . . . becomes a citizen of the United Statesʺ upon:
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 . . . .
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8 U.S.C. § 1432(a)(3) (1988), repealed by Child Citizenship Act of 2000, Pub. L. No. 106‐
395, § 103, 114 Stat. 1631, 1632 (2000).1
Two issues are presented: first, as a matter of statutory interpretation,
whether Gonzalez‐Reyes fits within the first clause of subsection (3), quoted above,
which requires a ʺlegal separation of the parentsʺ; and, second, as a constitutional
matter, whether subsection (3) violates Gonzalez‐Reyesʹs right to equal protection of the
law. We address both issues in turn.
I. Statutory Interpretation
The first clause of subsection (3) provides that a child born outside the
United States of alien parents becomes a United States citizen upon ʺthe naturalization
of the parent having legal custody of the child when there has been a legal separation of the
parents.ʺ 8 U.S.C. § 1432(a)(3) (emphasis added). Here, while it is undisputed that the
ʺnaturalizationʺ and ʺlegal custodyʺ elements were met with respect to Gonzalez‐
Reyesʹs father, the question is whether he established a ʺlegal separationʺ of his parents.
We conclude that he did not.
1 Derivative citizenship could also be obtained in other ways not at issue here. See
8 U.S.C. §§ 1432(a)(1) (naturalization of both parents), 1432(a)(2) (naturalization of
surviving parent if one parent is deceased). In addition, the parties agree that the other
conditions for derivative naturalization were met here. Id. §§ 1432(a)(4) (naturalization
of parent (or parents) takes place while child was under eighteen years of age),
1432(a)(5) (residency requirement for child).
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Legal separation is shown by ʺa formal act which, under the laws of the
state or nation having jurisdiction of the marriage, alters the marital relationship either
by terminating the marriage (as by divorce), or by mandating or recognizing the
separate existence of the marital parties.ʺ Brissett v. Ashcroft, 363 F.3d 130, 134 (2d Cir.
2004). These formal acts include actual orders of divorce or separation. Id. ʺMoreover,
some orders that the relevant state or nation might not characterize as creating a legal
separation may nonetheless effect such a drastic change in the coupleʹs marital existence
that the couple may be considered legally separated for purposes of § 1432(a)(3).ʺ Id.
This legal separation requirement applies even where the parents were never married.
See Lewis v. Gonzales, 481 F.3d 125, 130 (2d Cir. 2007) (ʺSubsection 1432(a)(3)ʹs first clause
explicitly requires a legal separation; our function, which is limited to interpretation,
does not allow us to obviate a literal requirement.ʺ).
Gonzalez‐Reyesʹs situation is identical to that in Lewis. While there is no
dispute that Gonzalez‐Reyes was in his fatherʹs legal custody before the age of 18, he
cannot show that his parents were legally separated because they were never married.
The fact that Gonzalez‐Reyesʹs father subsequently married another woman is not a
basis for finding a legal separation from Gonzalez‐Reyesʹs mother for two reasons.
First, there was no marital relationship with her to alter. See Brissett, 363 F.3d at 134
(separation refers to acts that formally ʺalter[] the marital relationship . . . or recogniz[e]
the separate existence of the marital partiesʺ (emphasis added)). Second, the ʺgoverning
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principleʺ of the legal separation requirement ʺis respect for the rights of an alien parent
who may not wish [her] child to become a U.S. citizen.ʺ Lewis, 481 F.3d at 130.
Allowing a legal separation to be accomplished by an independent act of the United
States‐citizen parent would violate this principle.
Nor does the canon of constitutional avoidance compel this Court to
interpret the term ʺlegal separationʺ to include later marriages of the members of an
unmarried couple to other people. ʺThe so‐called canon of constitutional avoidance is
an interpretive tool, counseling that ambiguous statutory language be construed to
avoid serious constitutional doubts.ʺ Fed. Commcʹns Commʹn v. Fox Television Stations,
Inc., 556 U.S. 502, 516 (2009). But ʺlegal separationʺ is not an ambiguous term; ʺthis
Court has consistently construed the term . . . to apply only to marital relationships.ʺ
Pierre v. Holder, 738 F.3d 39, 48 (2d Cir. 2013); accord Lewis, 481 F.3d at 130 (ʺlegal
separationʺ is a ʺliteral requirementʺ that cannot be ignored even where parents never
married).
II. Equal Protection
Gonzalez‐Reyes also challenges the constitutionality of § 1432(a)(3). As he
acknowledges, however, we have already held that § 1432(a)(3) does not violate equal
protection, Pierre, 738 F.3d at 50‐58, and we are ʺbound by a prior panelʹs decision until
it is overruled either by this Court sitting en banc or by the Supreme Court.ʺ Doscher v.
Sea Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016). Gonzalez‐Reyes argues that the
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Supreme Courtʹs decision in Sessions v. Morales‐Santana, 137 S. Ct. 1678 (2017), is an
intervening decision that overrules or abrogates Pierre. An intervening decision need
not directly address ʺthe precise issue decided by the panel,ʺ but must break ʺthe
link . . . on which we premised our [prior] decisionʺ or ʺundermine[]ʺ the assumptions
made in that decision. Doscher, 832 F.3d at 378 (first alteration in original). Because
Morales‐Santana addresses a different statute, and the outdated gender stereotypes at
issue in that case are not present here, this panel cannot depart from our prior decision
in Pierre.
In Pierre, we held that § 1432(a)(3) did not violate the Equal Protection
Clause by discriminating on the basis of legitimacy or sex because the statute was
sufficiently tailored to protect the interests of the non‐custodial parent who has intact
parental rights. 738 F.3d at 51 (holding that ʺ§ 1432(a) does not discriminate on the
basis of a protected class,ʺ and that ʺ§ 1432(a), although referring in one subsection,
(a)(3), to children born out of wedlock, did not classify based on legitimacyʺ). We
further observed:
[V]iewing § 1432(a) as a whole, the marital status of a childʹs parents at the
time of birth did not determine the childʹs eligibility for automatic
citizenship. A child born out of wedlock was as eligible as a child born to
married parents to obtain automatic derivative citizenship based on the
naturalization of both parents, see 8 U.S.C. § 1432(a)(1), or the
naturalization of the sole surviving parent, see id. § 1432(a)(2). And, fairly
read, § 1432(a)(3) does not impose extra burdens on children born out of
wedlock. Instead, it attempts to address, in a pragmatic fashion, two
inherently different contexts in which a child with a living non‐citizen
parent might acquire citizenship: one involving children with once‐
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married parents, and the other involving children out of wedlock and
whose paternity therefore might be unknown.
Id. We went on to make clear our view that ʺthe distinction drawn in § 1432(a)(3) did
not reflect discrimination based on legitimacy.ʺ Id.; see also id. at 51‐56.
The statute at issue in Morales‐Santana, formerly 8 U.S.C. § 1401(a)(7),
provided that for a foreign‐born child to acquire United States citizenship through his
father, an unwed citizen father had to reside in the United States for ten years prior to
the birth of his child. But the statute required only one year of pre‐birth residency for
unwed mothers. Morales‐Santana, 137 S. Ct. at 1686. The Supreme Court held that this
difference violated the Equal Protection Clause because it discriminated on the basis of
gender and relied on an outdated and unjustifiable understanding of gender roles. Id.
at 1690‐98.
The reasoning in Morales‐Santana does not extend to § 1432(a)(3). Section
1432(a)(3) focuses on two, different situations: first, where a child has two known and
living parents, and, second, where the childʹs mother is the only recognized parent
because paternity has not been established. Pierre, 738 F.3d at 51; Lewis, 481 F.3d at 131.
The statute awarded citizenship ‐‐ automatically ‐‐ in the first situation, where the
parents legally separated and the naturalizing parent was the custodial parent, and in
the second situation, where the parents had not married and the naturalizing mother
was the only recognized parent because the child had not been legitimated. Pierre, 738
F.3d at 51. We held that to the extent there is a ʺgender classificationʺ in § 1432(a)(3), it
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was ʺjustifiedʺ because ʺ[i]t reflected the practical reality that the interests of the alien
father merited protection only where that father had legitimated the child and thereby
demonstrated a connection to the child. By contrast, no such act of formal legitimation
was necessary with respect to an alien mother, because children are inherently
legitimated by their mothers at the moment of birth.ʺ Id. at 57.
In contrast, the statute in Morales‐Santana based its different residency
requirements on stale gender stereotypes, i.e., overbroad generalizations that ʺunwed
fathers [are] invariably less qualified and entitled than mothers to take responsibility for
nonmarital children.ʺ Morales‐Santana, 137 S. Ct. at 1692 (internal quotation marks and
citation omitted; alteration in original). The distinction in § 1432(a)(3) is based on
ʺrespect for parental rightsʺ and ensures that a parentʹs undiminished right to
determine the citizenship of his or her child is not ignored. Lewis, 481 F.3d at 131; see
also Pierre, 738 F.3d at 51‐52. The provision permitting the mother of a child with no
legitimated father to automatically pass citizenship to her child is based on the lack of a
second, identifiable legal parent and is therefore not called into question by Morales‐
Santana. See Lewis, 481 F.3d at 131; Pierre, 738 F.3d at 51. We conclude that Pierre and
Lewis have not been abrogated by Morales‐Santana.
* * * * *
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Accordingly, the petition for review is DENIED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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