Lodge v. U.S. Attorney Gen.

92 F.4th 1298

Robert Franklyn LODGE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 22-10416

United States Court of Appeals, Eleventh Circuit

Filed: February 7, 2024

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. AXXX-XX5-757

Peter Michael Isbister, Southern Poverty Law Center, Decatur, GA, Daniel Martin Sullivan, Andrew C. Indorf, Holwell Shuster & Goldberg LLP, New York, NY, for Petitioner.

Sunah Lee, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before William Pryor, Chief Judge, and Rosenbaum and Hull, Circuit Judges.

William Pryor, Chief Judge:

We sua sponte vacate our original opinion and substitute in its place the following opinion.

This petition for review challenges the constitutionality of a federal law about derivative citizenship. Robert Franklyn Lodge, a native and citizen of Jamaica, was born out of wedlock. Lodge's mother abandoned him, and his father moved to the United States and became a naturalized citizen. Lodge's father later brought him here as a lawful permanent resident. After Lodge was convicted of aggravated felonies, the Department of Homeland Security sought to remove him. Lodge argued that he had derived citizenship from his father under a since-repealed statute. The immigration judge ordered Lodge removed to Jamaica, and the Board of Immigration Appeals dismissed Lodge's appeal. Lodge argues that the former statute discriminated against unmarried fathers based on sex and against black children based on race. He asks us to declare him a citizen on the ground that the statute, cured of its constitutional defects, would have permitted his father to transmit citizenship to him. Yet Lodge would not have derived citizenship from his father even under a version of the statute cured of its alleged constitutional defects. Because we cannot grant Lodge the remedy he seeks, we deny his petition for review and deny as moot his motion to transfer.

I. BACKGROUND

Born in 1979, Robert Franklyn Lodge is a native and citizen of Jamaica. His father, Robert Francis Lodge, was born in Jamaica and became a naturalized citizen of the United States in 1989. And Lodge's mother, Lorna Wyndham, has never been a citizen of the United States. Lodge's parents never married. But their names appear on Lodge's "birth registration form" as his father and mother.

Lodge's mother abandoned him when he was a child. She left Jamaica to reside in London. Lodge's father became his sole "guardian" and "provide[d] everything" for him. He "maintained a continuing and close relationship" with Lodge, "support[ing] him fully and completely." Lodge's father brought Lodge to the United States, where he was admitted as a lawful permanent resident in 1992.

The Department of Homeland Security began removal proceedings against Lodge after he was convicted of aggravated felonies in 2016. See 8 U.S.C. § 1227(a)(2)(A)(iii). Lodge argued before the immigration judge that he was a citizen of the United States. The Department responded that Lodge was not a citizen.

The immigration judge found that Lodge was not a citizen of the United States. When Lodge's father naturalized and Lodge became a lawful permanent resident, the Immigration and Nationality Act provided several pathways to derivative citizenship for children born abroad to alien parents. See 8 U.S.C. § 1432(a) (1994), repealed by Child Citizenship Act of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1631, 1632 (2000). Although Lodge would have derived citizenship under the Child Citizenship Act of 2000, which repealed and replaced those pathways, that new law is not retroactive, and Lodge did not satisfy its terms on its effective date. See 8 U.S.C. § 1431(a); United States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir. 2002). The immigration judge explained that Lodge did not meet the statutory conditions for naturalization under former section 1432(a). The immigration judge rejected Lodge's requests for withholding of removal and for relief under the Convention Against Torture and ordered him removed to Jamaica. Lodge appealed to the Board of Immigration Appeals, which dismissed his appeal.

Lodge petitioned this Court pro se for relief. He argued that the second clause of section 1432(a)(3)—which allowed naturalized unmarried mothers, but not naturalized unmarried fathers, to transmit citizenship to their children when other conditions were met—violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment because it discriminated based on sex and race. We dismissed the appeal for want of prosecution but reinstated it after Lodge obtained counsel.

Lodge moved to transfer the proceeding to the Northern District of Georgia. See 8 U.S.C. § 1252(b)(5)(B). He argued that adjudication of his argument about race discrimination requires fact-intensive inquiry into the legislative purpose and the effect of the second clause of section 1432(a)(3), and he argued that this Court may not decide issues of material fact about nationality. See id. We carried the motion with the case.

II. STANDARD OF REVIEW

We review de novo our subject-matter jurisdiction and Lodge's constitutional challenges. Clement v. U.S. Att'y Gen., 75 F.4th 1193, 1198 (11th Cir. 2023); Poveda v. U.S. Att'y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012).

III. DISCUSSION

We proceed in two parts. We first explain that Lodge has Article III standing to assert his constitutional challenges. We then explain that Lodge is not entitled to the remedy he seeks because he would not derive citizenship from his father even under a version of the second clause of section 1432(a)(3) that did not classify based on sex.

A. Lodge Has Article III Standing.

We may consider Lodge's constitutional challenges only if he has standing to assert them. See TocMail, Inc. v. Microsoft Corp., 67 F.4th 1255, 1262 (11th Cir. 2023). As the party invoking federal jurisdiction, Lodge must prove that he has suffered an injury in fact that is fairly traceable to the allegedly unlawful conduct of the Attorney General and which a favorable decision would likely redress. See id. Because Lodge has satisfied that burden, he has Article III standing to challenge the constitutionality of the sex classification in the second clause of section 1432(a)(3).

Lodge has suffered an injury in fact. He is subject to removal because he was convicted of aggravated felonies. See 8 U.S.C. § 1227(a)(2)(A)(iii). The "risk of removal" is "sufficient to create an actual or imminent injury" under Article III. Gonzalez v. United States, 981 F.3d 845, 852 (11th Cir. 2020).

That injury is fairly traceable to the challenged action of the Attorney General. The immigration judge, acting for the Attorney General, denied Lodge's claim that he derived citizenship from his father under section 1432(a)(3). Lodge challenges the lawfulness of the statutory provision that he alleges was the "ultimate basis" for that denial. Citizenship is a defense to removal. See 8 U.S.C. § 1227(a) (only aliens may be removed). So the allegedly unlawful denial of Lodge's citizenship claim was a cause of his removal.

A favorable decision would redress Lodge's injury. A favorable decision is a favorable judgment. See Haaland v. Brackeen, 599 U.S. 255, 143 S.Ct. 1609, 1640, 216 L.Ed.2d 254 (2023). Lodge seeks a judgment declaring that he is a citizen of the United States. A judgment granting that relief would give Lodge "legally enforceable protection" against his injury, see id. at 1639, because the Attorney General would need to cancel the order of removal.

B. Lodge Would Not Derive Citizenship From His Father Even Under a Cured Version of Section 1432(a)(3).

Lodge raises two constitutional challenges. First, he argues that the sex classification in the second clause of former section 1432(a)(3) discriminated unlawfully based on sex. Second, he argues that the same classification discriminated based on race because it was intended to, and did, exclude him from deriving citizenship from his father on the ground that Lodge is black.

Our analysis begins with the statutory scheme. Former section 1432(a) automatically conferred citizenship on a "child born outside of the United States of alien parents . . . upon fulfillment of " three conditions. 8 U.S.C. § 1432(a). The first condition, which appeared in the second clause of section 1432(a)(3), required "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." Id. § 1432(a)(3). The second condition required that "[s]uch naturalization take[ ] place while such child is unmarried and under the age of eighteen years." Id. § 1432(a)(4). And the third condition required that "[s]uch child . . . begin[ ] to reside permanently in the United States while under the age of eighteen years." Id. § 1432(a)(5).

Lodge acknowledges that he did not derive citizenship under the statute. Although he began to reside permanently in the United States before he turned 18, and although he was unmarried and under 18 when his father became a naturalized citizen, the second clause of section 1432(a)(3) provided derivative citizenship only if his mother, not his father, naturalized. His mother never did so.

So Lodge challenges the constitutionality of the second clause. When the conditions in sections 1432(a)(3), 1432(a)(4), and 1432(a)(5) were satisfied, he argues, the second clause of section 1432(a)(3) "confer[red] automatic citizenship on the child of an unmarried mother, but not of a similarly situated unmarried father." Lodge argues that the sex classification in the second clause was the basis for denial of his defense of citizenship. He maintains that the clause unconstitutionally discriminated based on sex because it treated unmarried mothers and unmarried fathers unequally based solely on the "outmoded stereotype[ ]" that "an unwed father is more likely to be 'out of the picture' than an unwed mothe...