215 F.3d 795 (7th Cir. 2000)
Kevin Wedderburn,    Petitioner,v.Immigration and Naturalization Service,    Respondent.
No. 99-2241
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 5, 2000
Decided June 1, 2000

Petition for Review of an Order of the  Board of Immigration Appeals Before Posner, Chief Judge, and Easterbrook and  Ripple, Circuit Judges.
Easterbrook, Circuit Judge.


1
Children born outside  the United States, of alien parents, acquire U.S.  citizenship automatically if before their  eighteenth birthday they move to the United  States, and one or both of their parents become  U.S. citizens. Section 321(a) of the Immigration  and Nationality Act, 8 U.S.C. sec.1432(a). Kevin  Wedderburn, who was born in Jamaica of Jamaican  parents, contends that he became a citizen on  June 2, 1993, four months before his eighteenth  birthday, when his father Fitzroy Wedderburn  became a naturalized United States citizen.  Immigration officials, by contrast, believe that  Kevin is not a U.S. citizen because his mother,  Julie Hines, remains a citizen of Jamaica. Kevin  has been ordered deported because of his criminal  record (he was sentenced to six years'  imprisonment in 1995 for aggravated sexual  assault of a boy under nine years of age), and if  Kevin is an alien that criminal conviction not  only supports removal but also forecloses all  avenues of discretionary administrative relief  and judicial review. But a person ordered removed  is entitled to review of the questions whether he  is an alien, and whether he committed a felony  requiring removal. Yang v. INS, 109 F.3d 1185,  1192 (7th Cir. 1997). See also, e.g., Solorzano-  Patlan v. INS, 207 F.3d 869 (7th Cir. 2000);  Xiong v. INS, 173 F.3d 601 (7th Cir. 1999). Kevin  does not deny that his criminal conviction  requires removal, if he is an alien. (It is  irrelevant for current purposes whether  that  conviction is best classified under 8 U.S.C.  sec.1101(a)(43)(A), as "sexual abuse of a minor",  or sec.1101(a)(43)(F), as a "a crime of violence  . . . for which the term of imprisonment [is] at  least one year".) Thus everything turns on  citizenship: if Kevin is a citizen, the order of  deportation must be set aside, but if he is not  a citizen we must dismiss his petition for want  of jurisdiction.


2
Kevin was born in Jamaica on October 30, 1975.  His parents were not married and did not marry  each other later--though on June 5, 1986, Fitzroy  added his name to Kevin's birth certificate as  the father, which under Jamaican law means that  Kevin is a legitimate child. Before legitimating  Kevin, Fitzroy moved to the United States and  married. His wife, Velma, became a U.S. citizen  in 1986 and filed a petition for a visa that  would allow Kevin to live in the United States.  When he was eleven, Kevin came to the United  States, but after three years in New York with  Fitzroy and Velma, he moved to Illinois to live  with his paternal grandmother.


3
Whether these events made Kevin a citizen  depends on sec.321(a), which reads:


4
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
(1) The naturalization of both parents; or


6
(2) The naturalization of the surviving parent  if one of the parents is deceased; or


7
(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


8
(4) Such naturalization takes place while such  child is under the age of eighteen years; and


9
(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, or  thereafter begins to reside permanently in the  United States while under the age of eighteen  years.


10
Kevin meets the conditions in clauses (4) and  (5), so he is a citizen if any one of clauses (1)  to (3) applies. Julie Hines has not naturalized,  so he does not satisfy clause (1). Nothing in the  record suggests that Julie has died, so Kevin  does not satisfy clause (2). Clause (3) offers  two options. Kevin does not satisfy the latter,  involving his mother's naturalization, not only  because Julie has not become a U.S. citizen but  also because his paternity has been established  by legitimation. He does not meet the former  option, involving naturalization of the parent  with legal custody, because his parents have not  undergone "a legal separation" and it is unclear  whether Fitzroy had "legal custody" of Kevin at  the time. His residence at the time of Fitzroy's  naturalization was with his paternal grandmother,  so the BIA's conclusion that one parent's  permanent physical custody with the other's  consent is "legal custody" does not assist Kevin.  See Matter of M--, 3 I.&N. Dec. 850 (1950). Kevin  does not meet the requirements of sec.321(a).


11
Kevin asks us to read sec.321(a)(3) to treat  him as a citizen notwithstanding his inability to  meet the statutory conditions. His argument draws  on what he believes is a statutory incongruity.  Section 101(c)(1), 8 U.S.C. sec.1101(c)(1), which  defines the term "child" for purposes of Title  III of the Act (which comprises sec.321),  includes legitimated and adopted children in the  set eligible for citizenship.


12
The term "child" means an unmarried person under  twenty-one years of age and includes a child  legitimated under the law of the child's  residence or domicile . . . if such legitimation  or adoption takes place before the child reaches  the age of 16 years . . ., and the child is in  the legal custody of the legitimating or adopting  parent or parents at the time of such  legitimation or adoption.


13
According to Kevin, he is a "child" under this  definition, so sec.321(a)(3) should be read to  deem him a citizen. The premise of this argument  is incorrect; he is not a "child" under  sec.101(c)(1), because he was not in Fitzroy's  custody at the time of the legitimating event. In  June 1986, when Fitzroy legitimated Kevin by  adding his name to Kevin's birth certificate,  Fitzroy was living in New York, while Kevin was  living in Jamaica with one of his grandmothers.  But even if Kevin were a "child" under  sec.101(c)(1), this would not by itself make him  a citizen. Section 101 defines terms; the  substantive requirements of citizenship appear  elsewhere in the Act. Only with respect to  sec.322, 8 U.S.C. sec.1433, which permits a U.S.  citizen parent to obtain citizenship for a  "child" in his "legal custody," does the  definition have independent significance.  (Fitzroy has not sought to confer citizenship on  Kevin via sec.322.) Both sec.101(c)(1) and  sec.321(a) equate legitimated children to  legitimate ones. Kevin's problem is not the  nature of this equation, but the fact that he  does not qualify under sec.321(a) whether he is  "illegitimate," "legitimated," or "legitimate."  The label does not make a difference, because  Julie Hines is alive (we must assume) and has not  become a U.S. citizen, and Kevin has never been  in his father's "legal custody [after] there has  been a legal separation of the parents". Putting  sec.101 together with sec.321 does not help  Kevin, and appealing to the statutes' spirit, as  Kevin does, does not alter the statutes'  language.


14
We may assume, as Kevin insists, that, when  sec.321(a) was enacted, the predominant, if not  the exclusive, means of legitimating an  illegitimate child was the parents' subsequent  marriage. When legitimation equals marriage, then  a dissolution will produce "legal separation" and  "legal custody", so that legitimated children can  take full advantage of the first possibility  under sec.321(a)(3). When some foreign nations  made it possible to legitimate a child without  marriage, or indeed abolished the distinction  between legitimate and illegitimate children,  this created the possibility that the legitimated  child could not use sec.321(a)(3)'s first clause.  Kevin sees this as a "gap" that we should close;  but it is not a proper function of interpretation  (as opposed to amendment) to ensure that every  development in foreign law has a corresponding  benefit under U.S. law. Kevin has the same  options he and others like him possessed before  Jamaica amended its law in 1976 to treat persons  in his position as legitimate--Fitzroy's  signature on the birth certificate did more to  affect his status as a recognized father than to  alter Kevin's status under Jamaican law--the  amendment of Jamaican law does not have any  significance for the proper interpretation of  sec.321(a)(3).


15
At oral argument, the judges and counsel  explored two different, and perhaps more  promising, ways of approaching sec.321(a). One  possibility is that "legal custody" and "legal  separation of the parents" have a technical  meaning, perhaps by incorporating Jamaican law,  that enables Kevin to satisfy sec.321(a)(3). The  other is that Congress acted irrationally, and  thus unconstitutionally, by requiring both "legal  custody" and "legal separation." The parties  submitted post-argument memoranda concerning the  first of these possibilities. These memoranda  show that Kevin did not raise either line of  argument before the Board of Immigration Appeals,  or for that matter in his appellate briefs, so  they have been waived. But we cover them briefly  nonetheless, if only to show that Kevin's  deportation is not the result of a blunder by his  lawyers.


16
"Legal custody" and "legal separation of the  parents", as words in a federal statute, must  take their meaning from federal law. On this both  sides agree. But federal law may point to state  (or foreign) law as a rule of decision, and this  is how the INS has consistently understood these  terms. Matter of H--, 3 I.&N. Dec. 742 (1949),  concludes that the term "legal separation" means


17
either a limited or absolute divorce obtained  through judicial proceedings. It is thus apparent  that the term "legal separation," can refer only  to a situation where there has been a termination  of the marital status. Since the subject's  parents were not lawfully joined in wedlock, they  could not have been legally separated.


18
3 I.&N. Dec. at 744. The last line of this  quotation supposes, however, that Jamaican law  limits "a limited or absolute divorce obtained  through judicial proceedings" to situations in  which a marriage is being dissolved. Because the  INS determines the existence, validity, and  dissolution of wedlock using the legal rules of  the place where the marriage was performed (or  dissolved), see DeSylva v. Ballantine, 351 U.S.  570, 580-82 (1956); Matter of Miraldo, 14 I.&N.  Dec. 704 (1974); Matter of M--, it is at least  possible that Jamaica permits unmarried persons  to obtain a "legal separation" and an award of  "legal custody" of the children. But Kevin's  lawyers concede that, after a diligent search,  they could not find any Jamaican law to that  effect. They represent that marriage in Jamaica  is a formal subject (Jamaica does not, for  example, recognize common-law marriage) and that  legal separation is limited to persons who have  been married. In this respect, at least, Jamaican  law tracks the expectation voiced in Matter of H-  -, so Kevin asks us to reject the whole approach  of Matter of H-- and to treat not only the  definition of the words in sec.321(a)(3), but  also their referents, as matters of federal law.  Many federal statutes now prescribe some rules of  family law; for example, 1 U.S.C. sec.7 defines  marriage, wherever that term appears in the  United States Code, as "a legal union between one  man and one woman as husband and wife". See Jill  Elaine Hasday, Federalism and the Family  Reconstructed, 45 U.C.L.A. L. Rev. 1297 (1998)  (describing other national resolutions of family-  law matters). Section 321(a) is just one more  example of the displacement of local law, Kevin  insists.


19
That does not get Kevin very far if we  understand "legal separation" normally. See  Black's Law Dictionary 1369 (7th ed. 1999)  (defining "separation" 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; the act of  carrying out such an arrangement.--Also termed  legal separation; judicial separation."). Just as  Matter of H-- says, domestic relations law in the  United States treats "legal separation" as the  judicial suspension or dissolution of a marriage.  Kevin asks us to give it a completely different  meaning, equating "legal separation" with "not  being legally joined." Under this definition,  Fitzroy Wedderburn and Julie Hines were "legally  separated" from the moment they met (indeed, were  "legally separated" before they met). Fitzroy  would be "legally separated" from more than six  billion people: everyone on the planet other than  his wife. That is not a plausible interpretation  of "legally separated", however, first because it  leaves no work for "legally" (a word that in a  construction like this usually refers to a  judicial decree), and second because it is  impossible to see how people who have never been  joined can be separated. Separation implies a  comparison to a former state of joinder. South  America and Africa have been "separated" because  they were once joined in Pangaea and  Gondwanaland; but Hawaii, although separate from  the continental United States, has never been  "separated" from it. At all events, the BIA did  not exceed its delegated powers when reading  "legally separated" as drawing a distinction  between cohabitation in marriage and a later  state of living apart (with or without divorce);  reading a phrase just as Black's Law Dictionary  does can not be described as excessively  freewheeling interpretation. See Chevron U.S.A.  Inc. v. Natural Resources Defense Council, Inc.,  467 U.S. 837 (1984).


20
What then of the possibility that sec.321(a)(3)  is irrational because it requires proof of both  "legal custody" and "legal separation"? Because  the conjunction of "legal separation" with "legal  custody" does not concern any suspect class, a  rational basis is enough to defeat a  constitutional challenge. It is not hard to think  of a basis. Many legally separated parents share  custody of their children. Congress did not have  to treat divorce (or any other form of legal  separation) as the equivalent of one parent's  death; sec.321(a) as written means that in  shared-custody cases both parents must  naturalize, and this is entirely rational. As for  the reverse--legal custody in the naturalizing  parent, but not legal separation of the parents--  this situation can come about when one parent has  been deemed unfit to have custody, perhaps  because of mental or medical conditions, or is  physically unable to have custody (perhaps  because of incarceration). Often these conditions  will pass, and the parents will resume living  together with joint custody of the child.  Congress rationally could conclude that as long  as the marriage continues the citizenship of the  children should not change automatically with the  citizenship of a single parent. After all,  gaining U.S. citizenship by naturalization means  disavowing one's original citizenship. 8 U.S.C.  sec.1448(a)(2). (Usually disavowal means losing  the original citizenship, though some foreign  nations believe that citizenship acquired at  birth cannot be lost, and hence treat naturalized  U.S. citizens as dual nationals.) Both the child  and the surviving but non-custodial parent may  have reasons to prefer the child's original  citizenship, which may affect obligations such as  military service and taxation. Section 321(a)  limits automatic changes to situations in which  the other parent has been removed from the  picture--either by death or by "legal  separation." In a small subset of the cases in  which there is legal custody it may prove  impossible to meet the legal-separation  requirement even in the long run--perhaps because  a child was legitimated without marriage, perhaps  because the nation with jurisdiction over the  marriage does not recognize divorce or legal  separation. See Matter of Miraldo. But for these  cases sec.322 permits the custodial parent to  obtain U.S. citizenship for his or her child as  a matter of right, by filing an application. A  law does not become unconstitutional just because  it does not fit 100% of the cases; mismatches  between legal rules and the world at large are  inevitable. E.g., Califano v. Jobst, 434 U.S. 47  (1977). But sec.321(a) is a mismatch for a  custody-but-not-legal-separation situation only  when read independently of sec.322, which would  be unsound.


21
Although Kevin does not contend that  sec.321(a)(3) is irrationally arbitrary, he has  waged a vigorous constitutional challenge on  other grounds. Relying on Miller v. Albright, 523  U.S. 420 (1998), he contends that sec.321(a)(3)  violates the equal protection component of the  fifth amendment's due process clause. According  to Kevin, the statute "creates an invidious  classification between naturalized mothers of  illegitimate children, who can pass on the  benefit of citizenship, and naturalized fathers  of legitimated children, who cannot." Miller  concerned the constitutionality of 8 U.S.C.  sec.1409, which provides that illegitimate  children inherit the citizenship of their  mothers, while fathers can transmit U.S.  citizenship to offspring only if additional  conditions are satisfied. Three groups of two  Justices apiece made up the majority, and Lorelyn  Miller, the person claiming citizenship through  her father, lost in the end. But Kevin believes  that we can patch different groups of Justices  together to produce a majority for him:


22
Under the reasoning adopted by five Justices of  the Supreme Court in Miller . . ., Kevin  Wedderburn has third-party standing to challenge  this gender-based classification. [See 523 U.S.  at 431-33 (Stevens, J., joined by Rehnquist,  C.J.), 473-74 (Breyer, J., joined by Souter &  Ginsburg, JJ., dissenting).] Under the reasoning  of another group of five Justices . . ., a  gender-based distinction like the one in INA sec.  321(a)(3) is subject to heightened or  intermediate scrutiny, which requires that the  distinction be tailored to protect an important  state interest. [See 523 U.S. at 451-52  (O'Connor, J., joined by Kennedy, J.), 476-81  (Breyer, J., joined by Souter & Ginsburg, JJ.,  dissenting).] Because the gender-based  classification in INA sec. 321(a)(3) lacks any  justification, the statute violates the parental  right to equal protection under the Constitution.


23
Kevin's supposition that we can put together two  concurring opinions with one dissenting opinion  to produce a five-Justice majority on each  contested issue overlooks the way the Justices  counted votes in Miller itself. How votes should  be aggregated on appellate courts is an  interesting and debatable question. See Maxwell  L. Stearns, Should Justices Ever Switch Votes?:  Miller v. Albright in Social Choice Perspective,  7 Sup. Ct. Econ. Rev. 87 (1999). How votes were  counted in Miller (and thus how an inferior court  should predict that they will be counted in a  similar future case) can be determined by  inspection.


24
Miller needed to win on each of three issues:  standing, redressability, and the merits. She  lost two votes on each, and thus lost a total of  six votes and the case. Justices O'Connor and  Kennedy believed that only the father has  standing, for the right to pass citizenship to  one's children belongs to the father and not the  child. 523 U.S. at 445-51. "The statute . . .  accords differential treatment to fathers and  mothers, not to sons and daughters." Id. at 445.  That is equally true of sec.321(a)(3). Justices  Scalia and Thomas believed that even if the  statute at issue in Miller were unconstitutional,  no remedy would be available because "the Court  has no power to provide the relief requested:  conferral of citizenship on a basis other than  that prescribed by Congress." 523 U.S. at 453.  That, too, is equally true of sec.321(a)(3).  Finally, Chief Justice Rehnquist and Justice  Stevens believed that the rational-basis test  applies to statutes such as sec.1409, and that a  distinction between citizen fathers and citizen  mothers of illegitimate children is rationally  related to legitimate governmental objectives.  523 U.S. at 433-45.


25
None of the six Justices who voted against  Miller suggested that a constitutional challenge  to sec.321(a)(3) would receive more favorable  consideration, unless presented by the father.  And the three dissenting Justices implied that a  person in Kevin's position could lose even their  votes. Justice Breyer explained that his view on  standing was influenced by the fact that  Lorelyn's father, Charlie Miller, tried to sue in  his own name, only to have his suit dismissed for  lack of standing. By obstructing Charlie's suit,  Justice Breyer concluded, the Department of  Justice enabled Lorelyn to litigate. 523 U.S. at  473-74 (Breyer, J., joined by Souter & Ginsburg,  JJ., dissenting). Fitzroy Wedderburn, by  contrast, has not sought to bestow citizenship on  Kevin. Justice Breyer also thought it important  to both redressability and the merits that  Lorelyn claimed a right to citizenship at birth.  He distinguished situations in which events after  birth affect citizenship. Id. at 475, 481, 488-  89. Kevin Wedderburn could not count on Justice  Breyer's support.


26
We have been supposing so far that  sec.321(a)(3) implements a form of sex  discrimination. That would be so if Kevin were  illegitimate. Then Julie Hines, but not Fitzroy  Wedderburn, could make Kevin Wedderburn a U.S.  citizen by naturalization. But Jamaica now deems  Kevin legitimate, and sec.321(a) treats him the  same way. The second option of sec.321(a)(3)  drops out. Legitimated children become citizens  if both parents naturalize, if the surviving  parent naturalizes, or if the parent having  "legal custody" naturalizes following the  parents' "legal separation." Nothing depends on  the sex of the parent (or parents) who naturalize  or have custody.


27
To see this, suppose that Julie Hines had moved  to the United States with Kevin, while Fitzroy  Wedderburn had remained in Jamaica, and that  Julie later naturalized. Julie's immigration and  naturalization would not have affected Kevin's  citizenship because the second option under  sec.321(a)(3) does not apply to legitimated  children. By equating legitimated and legitimate  children in both sec.101(c)(1) and sec.321(a),  Congress avoided the kind of discrimination about  which Kevin complains. An illegitimate child who  has never been legitimated would have a claim  (though in light of Miller it would not be a  strong one); but a legitimated child such as  Kevin has no sex-discrimination claim at all.  Perhaps this explains the odd locution of Kevin's  core argument, which we have already quoted: that  sec.321(a)(3) "creates an invidious  classification between naturalized mothers of  illegitimate children, who can pass on the  benefit of citizenship, and naturalized fathers  of legitimated children, who cannot" (emphasis  added). In this formulation, legitimation and not  sex makes the difference. Anyway, the premise of  Kevin's contention is untrue. A father of a  legitimated child automatically passes  citizenship to the child, if the mother also  becomes a citizen, or has died, or if the father  acquired "legal custody" of the child following  a "legal separation" from the mother. A father  also may pass citizenship to a legitimated child  in his "legal custody" by applying for a  certificate of citizenship under sec.322.


28
Kevin does not contend that Congress violated  the Constitution by equating legitimated and  legitimate children, and no such contention would  be tenable. The second clause of sec.321(a)(3)  does not discriminate against illegitimate  children; instead it gives them an extra route to  citizenship, one not enjoyed by legitimate (or  legitimated) offspring. In the end, the nub of  Kevin's argument must be that Fitzroy legitimated  him on the cheap: by acknowledging his status as  Kevin's parent rather than by marrying his  mother, a step that (given Jamaican law) made the  first option of sec.321(a)(3) unavailable to him.  Fitzroy could have compensated by using sec.322,  which permits a citizen who has a child in his  "legal custody" to obtain citizenship for a child  without regard to "legal separation" from the  other parent--though this may not have been  possible, since Kevin was not in Fitzroy's  custody at the time of the legitimating event.  Kevin himself, as a lawful permanent resident,  could have applied for citizenship. But none of  these things happened, and we have already  explained why the Constitution does not require  Congress to anticipate and accommodate every  possibility created by foreign matrimonial law.


29
Kevin is not a citizen of the United States, so  his petition for review is  DISMISSED.

