                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2004

Lawal v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2354




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                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 02-2354


                  OLUKOLADE LAWAL,

                                  Petitioner

                             v.

                   JOHN ASHCROFT,
           Attorney General of the United States,

                                  Respondent




       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
         (D.C. Civil Nos. 00-cv-2264, 02-cv-0265)
        District Judge: Honorable Richard P. Conaboy



                          Argued
                      January 15, 2004

Before: SLOVITER, RENDELL and ALDISERT, Circuit Judges.

                  (Filed February 3, 2004)




                             1
TODD R. GEREMIA, ESQ.1 (Argued)
Jones Day
222 East 41st Street
New York, New York 10017-6702
      Attorney for Petitioner

PETER D. KEISLER, ESQ.
Assistant Attorney General, Civil Division
LINDA S. WERNERY, ESQ.
Senior Litigation Counsel
Office of Immigration Litigation
SUSAN C. LYNCH, ESQ. (Argued)
Attorney
U.S. Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
       Attorneys for Respondent



                              OPINION OF THE COURT


ALDISERT, Circuit Judge.

      This appeal requires us to decide whether the district court erred in denying

Olukolade Lawal’s three consolidated petitions for habeas corpus. Lawal contends that

the U.S. Immigration and Naturalization Service (“INS”)2 illegally held him in custody as



      1
       The court is appreciative of the willingness of Mr. Geremia and his law firm,
Jones Day, to undertake representation in this case on a pro bono basis.
      2
         The INS is now known as the Bureau of Citizenship and Immigration Services
within the Department of Homeland Security. See Homeland Security Act of 2002, Pub.
L. No. 107-296, § 451, 116 Stat. 2135, 2195 (2002) (codified at 6 U.S.C. § 271 (Supp.
2003)). Because the operative events in this case took place before the name change, INS
is used here.

                                             2
a removable alien even though he had achieved derivative citizenship under either the

Child Citizenship Act of 2000 (“CCA”), 8 U.S.C. § 1431, or the former Section 321 of

the Immigration and Nationality Act, 8 U.S.C. § 1432 (1988) (repealed 2000). We will

affirm.

                                               I.

          Because we write exclusively for the benefit of the parties, who are familiar with

the facts and the proceedings below, our discussion of the background will be limited.

Lawal is a 30-year-old native of Nigeria who was admitted to the United States as a

lawful permanent resident in 1987. Lawal moved to the United States to live with his

father, who married a United States citizen in 1979 and was naturalized in 1989, and his

stepmother. Lawal’s parents were never married.

          On December 15, 1997, Lawal was convicted in the state of New York for selling

cocaine. As a result of this conviction, the INS initiated deportation proceedings. See 8

U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(B). Lawal contends that he is not subject

to removal notwithstanding the conviction because he is a citizen.

                                               II.

          The district court construed Lawal’s derivative citizenship arguments in the

habeas petitions as an appeal from the August 9, 2001 final order of deportation by the

Board of Immigration Appeals (“BIA”). Noting Lawal’s 1997 New York conviction for

the criminal sale of a controlled substance, the district court transferred Lawal’s


                                               3
challenge of the final order of deportation to us. See 8 U.S.C. § 1252(a)(2)(C) (“no court

shall have jurisdiction to review any final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in [8 U.S.C. §

1227(a)(2)(A)(iii), (B)]”); Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002).

       We will not accept jurisdiction under the district court’s transfer order. Under 28

U.S.C. § 1631, a court may transfer a case to “any other such court in which the action or

appeal could have been brought at the time it was filed or noticed. . . .” None of Lawal’s

habeas petitions – dated December 26, 2000, April 10, 2001 and February 19, 2002 –

was filed in the district court within 30 days of the BIA’s final order of removal on

August 9, 2001. See 8 USC § 1252(b)(1) (setting a 30-day deadline for petitions for

review of final orders of removal). Accordingly, we hold that the transfer to us was

inappropriate.

                                             III.

       Assuming arguendo that it had jurisdiction to consider the habeas petitions even if

it could not review the final order of removal, the district court denied Lawal’s three

consolidated habeas petitions. The district court properly exercised its jurisdiction to

consider the consolidated petitions. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d

Cir. 2001) (“district courts retain jurisdiction to hear habeas petitions filed by aliens

subject to deportation for having committed certain criminal offenses”).

       We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a) to


                                              4
review the district court’s final order denying the petitions. “We exercise plenary review

over the District Court’s legal conclusions in a habeas proceeding. . . .” Werts v.

Vaughn, 228 F.3d 178, 191 (3d Cir. 2000).

                                            IV.

       We agree with the district court that the CCA does not apply retroactively to grant

derivative citizenship to Lawal. The CCA applies only to individuals born outside of the

United States who satisfy several conditions, including a requirement that the individual

be “under the age of eighteen years” on the statute’s effective date, February 27, 2001.

See 8 U.S.C. § 1431(a); Child Citizenship Act of 2000, Pub. L. No. 106-395, § 104, 114

Stat. 1631, 1633 (2000); Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003); United

States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir. 2002); Hughes v. Ashcroft, 255 F.3d

752, 759-760 (9th Cir. 2001); Nehme v. INS, 252 F.3d 415, 431 (5th Cir. 2001). Lawal,

who was born on December 30, 1973, was 27 years old on the day the CCA became

effective. Accordingly, the CCA’s automatic citizenship provisions do not apply to him.

                                             V.

       We now turn to Lawal’s contention that he gained citizenship under the former

Section 321 of the Immigration and Nationality Act by virtue of the naturalization of his

father in 1989. The statute in effect at the time Lawal’s father was naturalized provided

in relevant part:

       (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:

                                             5
       ....
              (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 (1988) (repealed 2000).

       As acknowledged by the district court, the immigration judge who initially

determined that Lawal met the requirements for derivative citizenship noted that the

former Section 321 left a gap for alien children born out of wedlock who sought to

obtain citizenship by virtue of their father’s naturalization. Lawal further contends that

we should interpret the former Section 321 to avoid what he views as the constitutional

problem posed by an unjustified gender-based classification.

       Lawal recognizes, however, and we emphasize here, that Lawal has not asked us

to declare the former Section 321 unconstitutional as a violation of the Equal Protection

Clause. We further emphasize that Congress closed the gap in the former Section 321

and eliminated any suggestion of gender-based classification when it adopted the CCA.

See 8 U.S.C. § 1431.

       The district court held that Lawal did not satisfy the conditions for derivative

citizenship in the former Section 321 because, even though Lawal was in the legal

custody of his father at the time of his father’s naturalization, Lawal’s parents were never

married and thus could not have undergone a “legal separation.” Lawal urges us to adopt

the view that Lawal’s parents are legally separated precisely because they were never

                                             6
married. This argument, however, stretches the meaning of “legal separation” too far.

      We start with “the language employed by Congress . . . and we assume that the

legislative purpose is expressed by the ordinary meaning of the words used.” INS v.

Phinpathya, 464 U.S. 183, 189 (1984) (internal quotations and citations omitted). It is

clear to us that Congress intended the term “legal separation” in the former Section

321(a)(3) to presume the preexistence of a legally binding marriage. In defining “legal

separation,” Black’s Law Dictionary advises us to “[s]ee SEPARATION (1).” Black’s

Law Dictionary 907 (7th ed. 1999). “[S]eparation. 1.” is described as “[a]n arrangement

whereby a husband and wife live apart from each other while remaining married, either

by mutual consent or by judicial decree[.]” Id. at 1369. See also Nehme, 252 F.3d at

426 (“in the United States, the term ‘legal separation’ is uniformly understood to mean

judicial separation”) (emphasis in original); Wedderburn v. INS, 215 F.3d 795, 799 (7th

Cir. 2000) (“it is impossible to see how people who have never been joined can be

separated”).

      If the term “legal separation” included situations in which there had been no

marriage, the term would be superfluous. See id. (noting that the unmarried parent of a

child seeking citizenship was “‘legally separated’ from more than six billion people:

everyone on the planet other than his wife”). The view urged on us by Lawal would

“defy the axiom of statutory construction that whenever possible each word in a statutory

provision is to be given meaning and not to be treated as surplusage.” Acceptance Ins.


                                            7
Co. v. Sloan, 263 F.3d 278, 283 (3d Cir. 2001) (internal quotations and citations

omitted).

       The district court also rejected Lawal’s argument that he could have gained

citizenship by virtue of his father’s naturalization under the provision of the former

Section 321(a)(3) covering “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)(3) (1988) (repealed 2000). On its face, this provision clearly does not

include situations, such as that of Lawal, in which the naturalized custodial parent is the

father rather than the mother. Still, Lawal contends that the provision’s purported

unjustified gender-based classification requires us to read the statute so as to grant

derivative citizenship to Lawal. This we will not do.

       Again, we emphasize that our task is not to determine the constitutionality of the

former Section 321 in light of the Equal Protection Clause. We must determine only

whether Congress, “[i]n the exercise of its broad power over naturalization and

immigration,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); see also Miller v. Albright,

523 U.S. 420, 434 n.11 (1998), intended the former Section 321 to apply to someone in

Lawal’s situation. In reviewing the choices made by Congress in this area, we are

mindful that “such decisions are frequently of a character more appropriate to either the

Legislature or the Executive than to the Judiciary.” Mathews, 426 U.S. at 81.

       The former Section 321 is based on the general requirement that for a child born


                                              8
outside the United States to acquire citizenship, both parents must naturalize. 8 USC §

1432(a)(3) (1988) (repealed 2000). In carving out certain limited exceptions to prevent

hardship and preserve the family unit, Congress did not permit either an unwed mother or

an unwed father alone to transmit citizenship to a legitimated child when the other parent

was still living. It is true that the former Section 321 allows unwed mothers to transmit

citizenship to their children for whom paternity has not been legitimated but the statute

does not have a similar provision for unwed fathers. This is “neither surprising nor

troublesome from a constitutional perspective” because “[f]athers and mothers are not

similarly situated with regard to the proof of biological parenthood.” Nguyen v. INS,

533 U.S. 53, 63 (2001).

       Ultimately, we need not determine the level of scrutiny that would apply to a

review of the former Section 321’s constitutionality in an equal protection case. Nor do

we need to determine whether the distinction between unmarried mothers and unmarried

fathers in the former Section 321(a)(3) “is substantially related to important

governmental objectives.” Miller, 523 U.S. at 434 n.11 (discussing the gender

distinction in 8 U.S.C. § 1409, the out-of-wedlock children citizenship provision of the

Immigration and Nationality Act). We are convinced that the canon of construction

urged on us by Lawal – that we must read the former Section 321 “to avoid serious

constitutional problems,” Sandoval v. Reno, 166 F.3d 225, 237 (3d Cir. 1999) – does not

require us to turn the former Section 321 on its head. By its terms, the statute does not


                                             9
apply to Lawal.

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. We conclude that the district court did not err in

holding that Lawal did not gain derivative citizenship under either the CCA or the former

Section 321(a)(3). Accordingly, the judgment of the district court denying Lawal’s three

consolidated habeas corpus petitions will be affirmed.



TO THE CLERK:

       Please file the foregoing opinion.

                                       s/Ruggero J. Aldisert
                                   Circuit Judge

DATED:        February 3, 2004




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