     Case: 09-60142     Document: 00511102050          Page: 1    Date Filed: 05/05/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 5, 2010
                                     No. 09-60142
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JORGE MARQUEZ-MORALES,

                                                   Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent.


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A044-762-001


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Jorge Marquez-Morales, a native and citizen of Mexico, seeks review of the
order of the Board of Immigration Appeals (BIA) dismissing his appeal from an
Immigration Judge’s decision finding him removable pursuant to 8 U.S.C.
§§ 1182(a)(9)(A)(ii) and 1182(a)(6)(A)(i). He also seeks review of the BIA’s denial
of his motion to reconsider the order affirming the IJ’s decision.




        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                       I.
      Marquez-Morales was born in Mexico to his mother, Josefina Morales
Andazola, a Mexican citizen. No father was identified on his birth certificate.
In 1994, an Oklahoma state court awarded his father, Jesus Jose Marquez,
permanent and exclusive custody of Marquez-Morales.               Marquez was
naturalized in March, 1998.      In June 2008, the Department of Homeland
Security charged Marquez-Morales as subject to removal pursuant to 8 U.S.C.
§ 1182(a)(9)(A)(ii).    The charges alleged that Marquez-Morales had been
previously removed from the United States under an outstanding removal order
in December 2003, and that he had been convicted in 2005 of the offense of
reentry of a deported alien previously convicted of an aggravated felony. DHS
also charged him as subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an
alien present in the United States without being lawfully admitted or paroled,
or who arrived in the United States at a time or place other than that designated
by the United States Attorney General.
      Before the IJ, Marquez-Morales denied both charges on the grounds that
he was entitled to derivative citizenship under former section 321(a)(3) of the
Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (repealed 2000), which
provided citizenship for a child born outside the United States through, inter
alia, the naturalization of the parent having legal custody of the child when
there had been a legal separation of the parents, or the naturalization of the
mother if the child was born out of wedlock and the paternity was not
established by legitimation.    The IJ determined that he did not meet the
statutory requirements of section 321(a)(3) and rejected his alternative
argument that former section 321(a)(3) was unconstitutional. The BIA affirmed
that decision.
      On appeal, Marquez-Morales argues that he is entitled to derivative
citizenship because the Oklahoma court’s custody order should be considered a
“legal separation” for the purposes of former section 321(a)(3) even though his

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parents were never married.      Alternatively, he argues that former section
321(a)(3) was unconstitutional because it establishes “two different standards
for men and women” because an unmarried mother can confer derivative
citizenship on her child but an unmarried father cannot.
                                        II.
      This court has limited jurisdiction to consider challenges to removal orders
based on the commission of an aggravated felony. The REAL ID Act amended
8 U.S.C. § 1252(a)(2)(C) to preclude judicial review of any removal order based,
inter alia, on an alien’s commission of an aggravated felony. 8 U.S.C.
1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d 516, 518-19 (5th Cir.
2006). The Act provides, however, that none of its provisions “shall be construed
as precluding review of constitutional claims or questions of law raised upon a
petition for review.”   8 U.S.C. § 1252(a)(2)(D).     We may review Marquez-
Morales’s “claim to be a national of the United States, and decide such claim if,
as here, the pleadings and affidavits reflect that no genuine issue of material
fact about the petitioner’s nationality is presented.” Marquez-Marquez v.
Gonzales, 455 F.3d 548, 554 (citing 8 U.S.C. § 1252(b)(5)). As the claim presents
a question of law, our review is de novo. Id.
      We first consider Marquez-Morales’s argument that he is entitled to
derivative citizenship under former section 321(a)(3). Because Marquez-Morales
was not born in the United States, naturalization is his “sole source for a claim
of citizenship.” Marquez-Marquez, 455 F.3d at 554. He bears the burden of
proving that he qualifies for naturalization, and this court resolves all doubts on
the matter in favor of the United States. See id. Because he turned eighteen in
1997, the provisions of former section 321(a) apply to his claim. Those provisions
were repealed by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114
Stat. 1631 (2000), but as Marquez-Morales acknowledges, the Child Citizenship
Act is not retroactive. Thus, his claim is governed by Section 321(a). See Nehme
v. INS, 252 F.3d 415, at 430-32 (5th Cir. 2001).

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      Former section 321(a) of he Immigration and Nationality Act provided that
“a child born outside the United States of alien parents . . . becomes a citizen of
the United States” upon “the naturalization of the parent having legal custody
of the child when there has been a legal separation of the parents; and if . . . such
naturalization takes place while such child is under the age of 18 years; and . . .
such child is residing in the United States pursuant to lawful admission for
permanent residence at the time of the naturalization of the parent.” Marquez-
Morales claims that, despite the fact that his parents never married and thus
could not be legally separated, he is entitled to citizenship because his father
obtained “legal custody” of him when he was under age eighteen. He contends
that he is not required to demonstrate that his parents were legally separated
because Congress’s intent in drafting Section 321(a) was the protection of
parental rights by ensuring hat only those alien children “whose real interest[s]’
were located in America with their custodial parent” would be automatically
naturalized.
      Marquez-Morales’s argument is foreclosed by this court’s decision in
Nehme, which held that a child born overseas to alien parents was not entitled
to naturalization when his father was naturalized but his parents never
obtained a “legal separation” or divorce under Pennsylvania law. 252 F.3d at
418-20. We also clarified that “legal separation” meant a “judicial separation,”
id. at 426, but he has presented no evidence that his parents were ever married
or judicially separated. Other circuits have likewise concluded that former
section 321(a)(3) requires a legal separation of married parents before a single
parent can confer automatic citizenship on an alien child. See Barthelemy v.
Ashcroft, 329 F.3d 1062, 1065, 1067-68 (9th Cir. 2003) (finding that because
alien’s parents never married and thus could not legally separate, the alien could
not establish citizenship under former section 321(a)(3)); Wedderburn v. INS,
215 F.3d 795, 799-800 (7th Cir. 2000) (concluding that BIA acted within its



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authority in construing “legal separation” to mean an alteration in marital
status). Accordingly, we find his claim to be without merit.1
      We also reject Marquez-Morales’s argument that former section 321(a)(3)
violates the Equal Protection Clause by establishing “two different standards
for men and women.”          This court has recognized that “[a]n alien has no
constitutional right to citizenship which is a privilege conferred as a matter of
grace by Congress under Article I, Section 8 of the United States constitution
relative to the power of Congress ‘to establish a uniform rule of Naturalization.’”
Villanueva-Jurado v. INS, 482 F.2d 886, 887 (5th Cir. 1973) (citing Rogers v.
Bellei, 401 U.S. 815, 840 (1971)). Congress has a “completely free hand in
defining citizenship as it relates to persons born abroad.” Id. (citation and
internal quotation marks omitted).          Challenges to INA classifications are
typically subject to rational basis review, De Fuentes v. Gonzales, 462 F.3d 498,
503 (5th Cir. 2006), but gender based classifications receive review under a
heightened standard. In Nguyen v. INS, 533 U.S. 53 (2001), the Supreme Court
stated that gender-based classifications in the INA must serve “important
governmental objectives . . and the discriminatory means employed” must be
“substantially related to the achievements of these objectives.” Id. at 60-61
(citation omitted).
      We find that Nguyen’s heightened scrutiny is not triggered here where
Marquez-Morales has not argued a true “gender-based” classification. Marquez-
Morales bases his equal protection claim on language from former section
321(a)(3), which provides that an alien child born outside the United States
becomes a citizen when, among other factors, “the naturalization of the parent
having legal custody of the child when there has been a legal separation of the


      1
        We also note that Marquez-Morales has not pursued his arguments made before the
BIA that his parents’ relationship constituted a “common law” marriage under Oklahoma law
or that he qualified for derivative citizenship under 8 U.S.C. § 1409. These arguments are
therefore waived. Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir.
2004).

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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.”
§ 321(a)(3) (emphasis added). He argues that gender-discrimination is present
because “only the [unmarried] mother’s naturalization” could confer derivative
citizenship, whereas his father’s naturalization could not confer the same. This
argument misses the mark. Marquez-Morales’s father established paternity, so
the provision regarding mothers of children born out of wedlock where paternity
is not established is inapplicable. Thus, his mother was similarly powerless to
confer citizenship upon him through her naturalization alone. As such, where
mothers and fathers of children whose paternity is established are treated
similarly, Marquez-Morales’s claim does not implicate equal protection.
      Moreover, even assuming arguendo that he had shown a gender-based
classification, we would nevertheless conclude that former section 321(a)(3) is
not unconstitutional. In Nguyen, the Supreme Court rejected a constitutional
challenge to 8 U.S.C. § 1409(a), which prescribe how persons born abroad to one
United States-citizen parent and one non-citizen parent acquired citizenship for
the child when the parents were not married. 533 U.S. at 62-70. Although the
statute imposed requirements on the children of a citizen father which were not
imposed when the citizen parent was the mother, the court found that the
gender-based classification met heightened scrutiny as the distinction was
substantially related to serving the important governmental interests of
“assuring that a biological parent-child relationship exists” and “ensuring that
the child and the citizen parent have some demonstrated opportunity or
potential to develop” more than a mere legally-recognized relationship. Id. at
62. As there, we find that Congress is entitled to prescribe rules for citizenship
that reflect differences in the way unmarried parents establish a biological tie
to the alien child.
      Finally, we note that two other circuits have rejected similar challenges
to former section 321(a)(3). In Barthelemy, the Ninth Circuit assumed without

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deciding that section 321(a)(3) entitled the alien to “the higher standard of
scrutiny,” but held that the alien’s equal protection claim failed where he
admitted his father had legitimated him. 329 F.3d at 1066-68. In Wedderburn,
the Seventh Circuit concluded that section 321(a)(3)’s classification was not a
sex-based classification at all, but rather a classification based on whether or not
the child had been legitimated. 215 F.3d at 801-02. Accordingly, we deny his
petition for review.
      PETITION DENIED.




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