[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15512 December 26, 2006
________________________ THOMAS K. KAHN
CLERK
BIA No. A34-706-374
DALE THOMAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision
of the Board of Immigration Appeals
________________________
(December 26, 2006)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
PER CURIAM:
BACKGROUND
The facts of this case are not in dispute. Dale Thomas was born in Guyana
in 1964. His parents were not married at the time of his birth, and only his
mother’s name appeared on his birth certificate. When Thomas was two, his
mother and father married. Thomas’s birth certificate was not amended to list his
father as Thomas’s biological father. After his parents’ marriage, Thomas, his
mother, and his father came to live in the United States. In 1981, when Thomas
was seventeen years old, his mother became a United States citizen. Thomas’s
father did not become a United States citizen until 1999.
Thomas’s claim of United States citizenship was denied by an immigration
judge (IJ). The IJ ordered Thomas removed from the United States. The Board of
Immigration Appeals (BIA) affirmed. Thomas appeals the BIA’s decision to this
court pursuant to 8 U.S.C. § 1252.
CONTENTIONS OF THE PARTIES
The parties agree that, under Guyanese law, the marriage of Thomas’s
mother and father legitimated Thomas. The parties disagree as to whether this
legitimation determined Thomas’s paternity.
Thomas contends that, because his paternity was not established by the
legitimation, he acquired United States citizenship in 1981, when he was
seventeen years old and his mother was naturalized as a United States citizen.
The Attorney General argues that this court does not have jurisdiction to
hear Thomas’s appeal. In the alternative, the Attorney General argues that
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Thomas did not become a citizen of the United States. The Attorney General
contends that, in order for Thomas to have acquired United States citizenship, both
of his parents must have become United States citizens before his eighteenth
birthday, and his father did not.
ISSUES ON APPEAL & STANDARD OF REVIEW
This appeal presents two questions of law: whether this court has
jurisdiction to hear Thomas’s appeal and whether, under Guyanese law, Thomas’s
paternity was established when he was legitimated by the marriage of his parents.
As with all questions of law, we consider these de novo. Riley v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1336 (11th Cir. 2002).
DISCUSSION
We consider the jurisdictional question first and find that we have
jurisdiction to hear the appeal. The REAL ID Act of 2005 explicitly authorizes
judicial review of constitutional claims or questions of law that arise in
immigration cases. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in . . . any . . .
provision of this chapter . . . which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals in accordance
with this section.”). As stated above, Thomas’s appeal presents a question of law,
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namely whether the fact that he was legitimated by the marriage of his parents
established his paternity under Guyanese law. See Gorsira v. Loy, 357 F. Supp. 2d
453, 460-61 (D. Conn. 2005) (“the court considers whether paternity has been
established by legitimation under the laws of the child’s native country.”) (citing
Wedderburn v. INS, 215 F.3d 795, 797 (7th Cir. 2000)).
Thomas’s claim to United States citizenship relies on 8 U.S.C. § 1432(a)(3).
That statute, which applies to Thomas because he turned eighteen before its repeal,
reads:
(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:
(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 . . . .
8 U.S.C. § 1432 (emphasis added) (repealed in 2000).
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The relevant Guyanese law, the Legitimacy Act, provides:
[W]here the parents of a person born out of wedlock
marry or have married one another, . . . the marriage did
or shall, if the father or mother of the person born out of
wedlock was or is at the date of the marriage domiciled
in Guyana, render that person, if he is or was living,
legitimate from the date of marriage.
Laws of Guyana 46:02.3(1).
Thus, under the Guyanese Legitimacy Act, legitimation through marriage
only occurs if the marrying couple are the parents of the person born out of
wedlock. There is no provision in the Guyanese Legitimacy Act for legitimation
of a child if the marrying parties are not the biological parents of that child. As
stated above, Thomas concedes that he was legitimated when his parents married.
In order for that marriage to have legitimated him, it must have been between his
biological mother and biological father.1 Therefore, Thomas’s paternity – the
identity of his biological father – was established through his legitimation which
was effected through the marriage of his parents. We find no merit in Thomas’s
contention that his paternity was not established because his birth certificate was
not amended to list his father. Amendment of the birth certificate was not
necessary.
1
Indeed, Thomas explicitly concedes that the man who married his biological mother was,
in fact, his biological father. (R.1 at 69.)
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Because Thomas’s paternity was established by legitimation, his claim to
citizenship fails. Pursuant to 8 U.S.C. § 1432(a)(1), both of his parents must have
become United States citizens before he was eighteen. Because they did not, he is
not a United States citizen.
CONCLUSION
For the foregoing reasons, we affirm the BIA’s order of removal.
AFFIRMED.
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