Barton v. Ashcroft, 3:01CV881(GLG).

171 F.Supp.2d 86

Sheldon Andre BARTON, Petitioner, v. John ASHCROFT, Attorney General of the United States, et al., Respondents.

No. 3:01CV881(GLG).

United States District Court, D. Connecticut.

October 25, 2001.

Sheldon Andre Barton, Oakdale, LA, pro se.

Deborah R. Douglas, U.S. Atty's Office, New Haven, CT, for Defendants.

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

GOETTEL, District Judge.

Petitioner, Sheldon Andre Barton, has filed a pro se Petition for Writ of Habeas Corpus. On July 20, 2001, this Court denied Petitioner's Motion for Emergency Stay of Deportation on the basis that the Board of Immigration Appeals (the "BIA") had not yet ruled on Petitioner's appeal. The Court also denied Respondents' motion to dismiss the Petition for Habeas Corpus Relief and ordered Respondents to file a brief addressing the merits of Petitioner's constitutional claims. Since the BIA has now ruled on Petitioner's appeal, this Court may consider his Petition.

BACKGROUND

In a decision dated April 30, 2001, the Immigration Judge (the "IJ") found Petitioner deportable under section 237(a)(2)(A)(ii) and (iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii), based upon his conviction of an aggravated felony and his conviction of two crimes involving moral turpitude. During the administrative proceedings. Petitioner claimed derivative citizenship under the Child Citizen Act of 2000 ("CCA") which repealed section 321 of the INA (8 U.S.C. § 1432) and amended section 320 (8 U.S.C. § 1431). However, section 104 of the new law provided that the amendment was to take effect 120 days after the date of enactment, viz., February 27, 2001, and would apply to individuals who satisfied the requirements of section 320¹ on that date. Since Petitioner did not meet all of the requirements as of the effective date,² the IJ held that the new law did not apply to him. Consequently, the IJ held that Petitioner did not derive United States citizenship and was removable as charged. The IJ ordered him deported from the United States to Jamaica. (Order of the Immigration Judge dated April 30, 2001, at 3.) On July 31, 2001, the BIA affirmed the IJ's decision and dismissed Petitioner's appeal.

DISCUSSION

I. Derivative Citizenship

Petitioner appears to have abandoned his prior assertion that the amended INA section 320 should be applied retroactively. Instead, he now argues that he is entitled to derived citizenship under INA section 321, which was repealed effective February 27, 2001. Section 321(a) provides:

A child born outside of the United States of alien parents ... becomes a United States citizen upon fulfillment of the following conditions:

* * * * * *

(3) The naturalization of the parent having legal custody of the child where there has been 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 naturalized under clause ... (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432 (1988), repealed by the Child Citizenship Act of 2000, Pub.L. 106-395, § 103(a), 114 Stat. 1632 (2000). Petitioner argues that he met these requirements before he turned eighteen and is, therefore, a U.S. citizen. Respondents point out that Petitioner did not claim derivative citizenship pursuant to section 321(a)(3) during the administrative proceedings, and asserts that Petitioner improperly raises this claim for the first time in this Court. We do not accept Respondents' position. The Second Circuit has repeatedly held that the federal district courts have jurisdiction to hear habeas corpus petitions filed by aliens seeking relief from deportation orders under 28 U.S.C. § 2241. See Calcano-Martinez v. INS, 232 F.3d 328, 333-34 (2d Cir.2000), cert. granted, 531 U.S. 1108, 121 S.Ct. 849, 148 L.Ed.2d 733 (2001); Henderson v. INS, 157 F.3d 106, 118-22 (2d Cir.1998). Habeas relief extends to all issues that are purely legal in nature, including constitutional challenges. Calcano-Martinez, 232 F.3d at 334 (citing Henderson, 157 F.3d at 122). In order to determine whether Petitioner's detention and pending deportation is unconstitutional, we must first determine whether he is a citizen under section 321 as he claims, notwithstanding the fact that he did not rely on that section during the administrative proceedings.

According to the record, Petitioner's father was naturalized in February 1988, shortly before Petitioner's tenth birthday. (Resp't's Resp. to Pet. For Writ of Habeas Corpus. Ex. D.) Thus, Petitioner meets the condition in section 321(a)(4). Similarly, Petitioner meets the condition in section 321(a)(5) because he began to reside permanently in the United States in 1992, some four years after his father became a citizen, but while he was still under the age of eighteen. (Resp't's Resp. to Pet. For Writ of Habeas Corpus, Ex. A.) Since Petitioner meets the conditions in clauses (4) and (5), he is a citizen if one of the two options in section 321(a)(3) applies. Petitioner does not satisfy the latter option, involving his mother's naturalization, not only because his mother did not become a U.S. citizen, but also because his paternity has been established by legitimation.³ He does not meet the former option involving naturalization of the parent with legal custody, for two reasons. First, his parents are not "legally separated" because they were never joined in marriage. See Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir.2000) (the INS "determines the ... dissolution of wedlock using the legal rules of the place where the marriage was ... dissolved" and interprets "legal separation" as "a termination of the martial status"). Petitioner has not offered any argument that it is possible for couples who were never married to each other to be "legally separated" under Jamaican law. Second, it is not clear that Petitioner was ever in his father's "legal custody." At the time his father was naturalized, Petitioner was living in Jamaica with his mother. Although Petitioner's father petitioned for his admission to the United States, Petitioner, by his own admission, lived with and was raised by his sister, not by his father. (Resp't's Resp. to Pet. For Writ of Habeas Corpus, Ex. H .) For these reasons, Petitioner does not meet the conditions set forth in section 321(a)(3) and therefore did not acquire derivative citizenship when his father became a naturalized United States citizen or at any time thereafter.⁴

II. Equal Protection

Petitioner argues that section 321(a)(3) violates the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment because it "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." Petitioner relies chiefly on Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998), a case in which the Supreme Court reviewed the constitutionality of INA section 309, 8 U.S.C. § 1409, a section substantially similar to section 321, except that it deals with children born outside the United States and out of wedlock to an American parent. Section 309(a) requires that by the age of eighteen, such a child born to an American father must present formal proof of paternity in order to obtain citizenship. By contrast, under section 309(c), a child born abroad and out of wedlock to an American mother automatically obtains citizenship at birth. See 8 U.S.C. §§ 1409(a), (c) (1988). Until recently, the holding and precedential value of Miller were unclear, especially with respect to the applicable standard of review for INA statutes that contain gender classifications, because the judgment was reached by five Justices issuing five separate opinions, with three Justices dissenting. However, in Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001), the Supreme Court held that section 309, which contains a gender-based distinction like the one in section 321(a)(3), did not violate the equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment. Id. at 2058. Subjecting section 309 to heightened or intermediate scrutiny, the Court held it was indeed substantially related to achieving two important governmental objectives, i.e., (i) ensuring that a biological parent-child relationship exists, and (ii) ensuring that the child and citizen parent have "some demonstrated opportunity or potential to develop not just a relationship that is recognized ... by law, but one that ... provide[s] a connection between child and citizen parent and, in turn, the United States." Id. at 2060-63. Section 321(a)(3) promotes the same important governmental interests in cases where citizenship is to be automatically conferred on children born outside of the United States, to a parent or parents who later become United States citizens.

In the instant case, Petitioner was "legitimated" under Jamaican law, and he is treated by section 321(a)(3) as if he were born in wedlock. Consequently, he could not have derived citizenship from his mother, even if she had become a United States citizen before his eighteenth birthday, since legitimate 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." Wedderburn, 215 F.3d at 802. A child born out of wedlock who had never...