                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2006

Van Riel v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2287




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2287


                                 ORVILLE VAN RIEL,
                                          Petitioner

                                           v.

                               ATTORNEY GENERAL
                              OF THE UNITED STATES,
                                          Respondent


                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                (BIA No. A41-463-505)
                       Immigration Judge: Charles M. Honeyman


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 13, 2006

             Before: SLOVITER, McKEE and RENDELL, Circuit Judges.

                                 (Filed: July 24, 2006)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Petitioner, Orville Van Riel, appeals from the Immigration Judge’s order of

removal of Van Riel to Jamaica pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(I) based
upon his conviction for an aggravated felony involving a controlled substance, and the

Bureau of Immigration Appeals’ affirmance of the Immigration Judge’s ruling. Van Riel

filed a petition for review, claiming citizenship through his father under 8 U.S.C. § 1431

or former 8 U.S.C. § 1432. We will deny his petition.

                                               I.

       Van Riel was born out of wedlock in Jamaica on May 21, 1972. Van Riel’s father,

Joseph Van Riel, moved to the United States in 1982 and became a naturalized citizen on

May 27, 1987. In 1989, at the age of 16, Van Riel came to the United States to live with

his father. On March 12, 2001, Van Riel pled guilty to two counts of possession with

intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §

841(a)(1). After his conviction, the INS began removal proceedings against Van Riel,

claiming that he was removable as an alien convicted of an aggravated felony and of

possession of a controlled substance. Van Riel argues that he qualifies as a citizen under

either 8 U.S.C. § 1431 or former 8 U.S.C. § 1432, and thus cannot be removed.

                                              II.

                                              A.

       The Child Citizenship Act of 2000, 8 U.S.C. § 1431, provides that a child born

outside the United States automatically becomes a citizen when (1) at least one parent of

the child is a citizen, (2) the child is under 18 years of age and (3) the child is residing in

the United States under the custody of the citizen parent. Van Riel acknowledges that he



                                               2
was past the age of 18 when this statute became effective on February 27, 2001. 8 U.S.C.

§ 1431 note 2. Van Riel argues, however, that the statute should be applied retroactively

and that he fulfills each requirement. We have held that the Child Citizenship Act of

2000 does not apply retroactively. Morgan v. Attorney General, 432 F.3d 226, 230 n.1

(3d Cir. 2005). Our holding comports with the findings in other courts of appeals that the

CCA is not retroactive. See Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003); United

States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir. 2002); Nehme v. INS, 252 F.3d 415,

430-32 (5th Cir. 2001); Hughes v. Ashcroft, 255 F.3d 752, 758-60 (9th Cir. 2001).

Accordingly, Van Riel is not a citizen under the Child Citizenship Act.

                                             B.

       Van Riel offers an alternative argument. Under former 8 U.S.C. § 1432(a)(3)1

(repealed October 30, 2000), a child born out of wedlock outside the United States

becomes a citizen upon the naturalization of the mother if the paternity of the child has

not been established. Van Riel claims that permitting derivative nationality of children

born out of wedlock only through the mother is unconstitutional. We are mindful that we

engage in limited judicial inquiry regarding immigration legislation because “‘over no



  1
    “A child born outside 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” 8 U.S.C. § 1432(a)(1)-(3).

                                              3
conceivable subject is the legislative power of Congress more complete than it is over’

the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic

Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The Supreme Court has found

that distinctions in immigration law based on sex and legitimacy are constitutional when

there is a facially legitimate and bona fide reason. See Fiallo, 430 U.S. at 794. In Nguyen

v. INS, 533 U.S. 53, 68 (2001), the Supreme Court found the imposition of extra burdens

on a claim of citizenship through one’s father if the child is born out of wedlock was not

unconstitutional because the law serves an important governmental interest, and the

means are substantially related to the ends. We are persuaded that former 8 U.S.C. §

1432(a)(3) also meets this standard because it provides narrowly tailored exceptions to

the general requirement that both parents must be naturalized for a child to derive

citizenship. Specifically, former 8 U.S.C. § 1432(a)(3) only allowed a child to be

naturalized through one parent if (1) only one parent had legal custody or (2) paternity

had not been established. Former 8 U.S.C. § 1432(a)(3) thus served the legitimate

governmental purpose of protecting the rights of both parents. See Bustamante-Barrera

v. Gonzales, 447 F.3d 388, 397 (5th Cir. 2006). Accordingly, we reject Van Riel’s

constitutional challenge to former 8 U.S.C. § 1432(a)(3).

                                           III.

       Van Riel has not met the requirements for citizenship under either 8 U.S.C. § 1431

or former 8 U.S.C. § 1432. We will deny his petition.



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