Davis v. Attorney Gen.

1

DAMION GLENROY VANDO DAVIS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA

No. 21-2235

United States Court of Appeals, Third Circuit

February 29, 2024

NOT PRECEDENTIAL

Argued on September 7, 2023

On Petition for Review of a Decision of the Board of Immigration Appeals (A042-256-487) Immigration Judge: Alice Song Hartye

John H. Peng [ARGUED] Prisoners' Legal Services of New York Counsel for Petitioner

Sarah H. Paoletti University of Pennsylvania School of Law Transnational League Clinic

Counsel for Amici Curiae National Immigration Project of the National Lawyers Guild, Asian Americans Advancing Justice, Atlanta and Southern Poverty Law Center in Support of Petitioner

Merrick B. Garland Nancy Canter Matthew A. Connelly Jaclyn G Hagner Lindsay M. Vick [ARGUED] United States Department of Justice Office of Immigration Litigation Counsel for Respondent

Before: CHAGARES, Chief Judge; HARDIMAN and MONTGOMERY-REEVES, Circuit Judges.

OPINION ^[*]

MONTGOMERY-REEVES, CIRCUIT JUDGE

Damion Glenroy Vando Davis was born out of wedlock in Jamaica to parents who never married. In 1989, Davis began living as a lawful permanent resident in the United States. Davis's father naturalized when Davis was 16, and Davis's mother naturalized when Davis was 21. In 2019, the Government sought to remove Davis because of his criminal history. Before the Immigration Judge, Davis moved to terminate his removal proceedings, arguing that he had derived citizenship from his father under the first clause of former 8 U.S.C. § 1432(a)(3) (repealed 2000) (the "Marriage Clause").^[1] The Immigration Judge rejected Davis's argument, and the Board of Immigration Appeals affirmed that ruling.

Davis now petitions this Court for review of the Board of Immigration Appeals' order. For the first time, Davis also argues that the second clause of former § 1432(a)(3) (the "Legitimation Clause"),^[2] which permitted unwed mothers but not unwed fathers to pass down citizenship, violates the equal protection guarantees of the Fifth Amendment as applied to him. As explained below, the Immigration Judge did not err in concluding that Davis did not derive citizenship from his father under the Marriage Clause. And Davis lacks standing to bring his constitutional challenge to the Legitimation Clause. Thus, we will deny in part and dismiss in part the petition.

I. BACKGROUND

Davis's parents, Delroy Davis and Dorothy Williams, "became involved in a romantic relationship in 1976 when [they] both lived in Jamaica. As a result of [that] relationship [Davis] was born on August 13, 1978, in Jamaica." CAR 228. Delroy and Williams did not have a marriage ceremony but considered themselves "to be in a common law marriage." Id. "During the time that [Delroy and Williams] were together [they] lived at 12 Longston Terrace, Kingston, Jamaica." Id. Their "relationship began to come to an end" in 1982 when Delroy traveled to the United States. Id.

Davis was admitted to the United States as a lawful permanent resident on November 2, 1989, when he was 11. When Davis was 16, Delroy became a naturalized citizen. Williams became a naturalized citizen when Davis was 21. Davis did not take any steps to naturalize because Davis and his parents believed that he had derived citizenship.

In 2019, the Department of Homeland Security ("DHS") served Davis with a notice to appear, charging him as removable under 8 U.S.C. § 1227(a)(2)(E)(ii) for violating a protective order. DHS later added charges of removability based on Davis's other criminal history. The Immigration Judge sustained the charge of removability under certain grounds. Afterward, Davis filed an appeal with the Board of Immigration Appeals, which affirmed the Immigration Judge's decision.^[3] Davis then filed this petition for review.

II. JURISDICTION

The Board of Immigration Appeals had jurisdiction under 8 C.F.R. §§ 1003.1(c) (2020) and 1003.2 (a) and (c). We have jurisdiction to review the threshold question of whether Davis is a United States citizen. Dessouki v. Att'y Gen., 915 F.3d 964, 966 (3d Cir. 2019); Brandao v. Att'y Gen., 654 F.3d 427, 428 (3d Cir. 2011). On the one hand, if we conclude "from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, [we] shall decide the nationality claim." 8 U.S.C. § 1252(b)(5)(A). On the other hand, if we conclude "that a genuine issue of material fact about the petitioner's nationality is presented, [we] shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim." 8 U.S.C. § 1252(b)(5)(B). The ultimate "burden of proof of eligibility for citizenship is on the applicant[,]" and "[a]ll doubts 'should be resolved in favor of the United States and against the claimant.'" Bagot v. Ashcroft, 398 F.3d 252, 256-57 (3d Cir. 2005) (quoting Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)). When determining whether a genuine issue of material fact about the petitioner's nationality is presented, however, we apply the familiar summary judgment standard and treat the Government as the moving party. Espichan v. Att'y Gen., 945 F.3d 794, 797 (3d Cir. 2019).

Additionally, "[w]e always have jurisdiction to determine our own jurisdiction." Zurn Indus., LLC v. Allstate Ins. Co., 75 F.4th 321, 326 (3d Cir. 2023) (citing United States v. Kwasnik, 55 F.4th 212, 215 &n.1 (3d Cir. 2022)).

III. DISCUSSION

Davis argues that he derived citizenship from his father under either the Marriage Clause or the Legitimation Clause of § 1432(a)(3). As to the Marriage Clause, Davis contends that he derived citizenship because his parents entered, and subsequently dissolved, a common-law marriage. As to the Legitimation Clause, Davis argues that it deprived him of citizenship on gender-based and race-based grounds in violation of the Fifth Amendment's Equal Protection Clause because, without these constitutional defects, Davis would have derived citizenship from his father. We address each argument in turn.

To begin, we look to the law as it stood at Davis's birth in 1978, and at the time his father naturalized in 1994. Morgan v. Att'y Gen., 432 F.3d 226, 230 (3d Cir. 2005). To derive citizenship under either clause at the relevant times, § 1432(a) provided that:

(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: ...

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

A. The Marriage Clause^[4]

Davis contends that his parents entered a common-law marriage under Jamaican law and legally separated when they stopped cohabitating. Thus, Davis asserts that he derived citizenship from his father under the Marriage Clause. To derive citizenship under the Marriage Clause, Davis must show, among other things, that his parents had been married and then legally separated. See Espichan, 945 F.3d at 798-99 (explaining that a marriage is a "requisite antecedent to a 'legal separation'" under the statute). To determine if Davis's parents were married within the meaning of the statute, we look to the "legal rules of the place where the marriage [may have been] performed." Morgan, 432 F.3d at 232. Because Davis contends that his parents' purported common-law marriage occurred in Jamaica, we apply Jamaican law to determine whether they were in fact married. Id.; see also Espichan, 945 F.3d at 799 ("At the time [the petitioner's] parents were allegedly married, they both lived in Peru, so Peruvian law controls.").

Davis argues that his parents were married for the purposes of the Marriage Clause because Jamaica's Property (Rights of Spouses) Act 2004 ("PROSA") retroactively recognized common-law marriages in Jamaica, like the purported common-law marriage between his parents. Even if we accept Davis's claim that PROSA applies retroactively to relationships in the 1970s, Section 4 of PROSA states that "[t]he provisions of [PROSA apply]" in place of the common law "to the extent that they apply to transactions between spouses in respect of property." CAR 24 (emphasis added). This shows that, on its face, PROSA does not displace Jamaican common law beyond the division of property.

Davis also cannot rely on the definition of "spouse" to establish that common-law marriage is recognized in Jamaica. PROSA defines "spouse" as: "(a) a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years; (b) a single man who has cohabited with a single woman as if he were in law her husband for a period of not less than five years immediately preceding the institution of proceedings under this Act or the termination of cohabitation as the case may be." CAR 24. And the definition of "cohabitate," which is fundamental to the definition of "spouse" under PROSA, is "to live together in a conjugal relationship outside of marriage." CAR 23 (emphasis added). Thus, the definition of "spouse" in PROSA...