                                                              [DO NOT PUBLISH]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


                                         2
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,


                                           3
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).

                                            4
       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.)

                                               5
      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.




                                         6
