Lopez Ramos v. Barr

942 F.3d 376

Ruben LOPEZ RAMOS, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 19-1728

United States Court of Appeals, Seventh Circuit.

Argued September 25, 2019

Decided November 7, 2019

Charlie Nett, Attorney, NETT IMMIGRATION LAW OFFICE PLLC, Louisville, KY, for Petitioner.

David Schor, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Ripple, Rovner, and Brennan, Circuit Judges.

Ripple, Circuit Judge.

Ruben Lopez Ramos brings this petition to review the removal decision of the Board of Immigration Appeals ("BIA"). He claims that the statutory scheme set forth in the since-amended 8 U.S.C. § 1401 (1968) (amended 1986) and §§ 1431–32 (1968) (amended 2000) violates the Equal Protection guarantee of the Fifth Amendment’s Due Process Clause because those provisions prevent him from deriving citizenship through his United States citizen mother. The Immigration Judge ("IJ"), noting that the immigration court lacks jurisdiction over constitutional questions, limited her analysis to the provisions of the Immigration and Nationality Act ("INA") and denied Mr. Lopez’s motion to terminate removal proceedings. The BIA affirmed without opinion the decision of the IJ.¹ Mr. Lopez timely seeks review of the removal decision here.² Because the statutory scheme has a rational basis, there is no equal protection violation. Consequently, we deny the petition for review.

I.BACKGROUND

Mr. Lopez was born in Mexico on November 19, 1974, to Bertha Ramos de Lopez and Jaime Lopez Gonzalez. Ms. Ramos de Lopez, although born in Mexico, had acquired United States citizenship at birth through her mother. Ms. Ramos de Lopez entered the United States in 1978 and received a certificate of citizenship in 1990. Mr. Lopez’s father’s immigration status is unknown.

Mr. Lopez was admitted to the United States as a lawful permanent resident in January 1985. On November 12, 2009, he was convicted of two counts of conspiracy to distribute methamphetamine and was sentenced to 122 months’ imprisonment. During his incarceration, Immigration and Customs Enforcement ("ICE") officials advised him that he might have derived United States citizenship through his mother. After his release, he filed an application for a certificate of citizenship but later withdrew it.

On September 6, 2018, the Department of Homeland Security ("DHS") filed a notice to appear before the immigration court, initiating removal proceedings against Mr. Lopez. The notice to appear alleged that Mr. Lopez is not a citizen of the United States but a native and citizen of Mexico. It further alleged that he was admitted to the United States as an immigrant and later convicted of two counts of conspiracy to distribute methamphetamine. It charged that these convictions rendered him removable under § 1227(a)(2)(A)(iii) and (a)(2)(B)(i).³

Although he admitted the other allegations in the notice to appear, Mr. Lopez denied that he is not a citizen or national of the United States. He maintained that the sections of the INA in force at the time of his birth that prevented him from automatically deriving citizenship violated the Equal Protection Clause of the Fifth Amendment. In his view, former statutes 8 U.S.C. §§ 1431 – 32 (1968) (amended 2000) impermissibly distinguished between children born abroad to two noncitizen parents and children born abroad to one citizen parent and one noncitizen parent.

Noting the immigration court’s lack of jurisdiction over constitutional issues, the IJ declined to consider Mr. Lopez’s equal protection challenge and ruled that Mr. Lopez was not a citizen of the United States and therefore was removable. The BIA affirmed without opinion.

On April 18, 2019, Mr. Lopez filed a motion for an emergency stay of removal. We denied his motion, holding that he had not made the requisite showing of irreparable harm or substantial likelihood of success on the merits. Judge Hamilton dissented. He noted that Mr. Lopez was removable "because of an odd, arguably irrational, conundrum" and that a stay of removal would do no harm and would give the court time to consider carefully the issues.⁴ Mr. Lopez timely filed this petition for review of the BIA decision.⁵

II.DISCUSSION

A.

Mr. Lopez bases his claim to citizenship on his membership in the class of children who fall under former 8 U.S.C. § 1431 (1968) (amended 2000).⁶ He is not, however, a member of the class described in this provision. That statute addressed the automatic conferral of citizenship on the minor child of one citizen parent and one noncitizen parent "if such alien parent is naturalized ." § 1431(a) (emphasis added). Nothing in the record suggests that Mr. Lopez’s father was ever naturalized, nor does Mr. Lopez make such a claim. The IJ concluded—and the Government relies on the assumption—that a related but different statute, former § 1401(a)(7) (1968) (amended 1986),⁷ applied to Mr. Lopez at the time of his birth. Section 1401 "provides the general framework for the acquisition of citizenship at birth." Sessions v. Morales-Santana , ––– U.S. ––––, 137 S. Ct. 1678, 1686–87, 198 L.Ed.2d 150 (2017). Subsection (a)(7) of that provision governed the nationality and citizenship of the born-abroad child of a citizen and a noncitizen. It required that the citizen parent satisfy a "physical presence" minimum of ten years’ residence in the United States prior to the child’s birth. § 1401(a)(7).

In essence, then, Mr. Lopez challenges a statutory scheme that automatically conferred citizenship on some children born abroad but not on others. He submits that the statutory scheme is discriminatory because a child claiming citizenship through a parent born in the United States must demonstrate that the parent had a physical presence in the United States for ten years. By contrast, a child whose parent acquired United States citizenship through naturalization need not show such physical presence of the parent. He maintains that this statutory scheme violates the Equal Protection Clause because it made the citizenship of the children in the former class conditional but granted automatic citizenship to children in the latter group.

B.

The principles that must govern our evaluation of Mr. Lopez’s claim are well-established. United States citizenship is acquired either by birth or by naturalization. Miller v. Albright , 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998). The citizenship of those who are "born or naturalized in the United States, and subject to the jurisdiction thereof" is constitutionally guaranteed and not subject to abridgment. U.S. Const. amend. XIV, § 1 ; Afroyim v. Rusk , 387 U.S. 253, 262, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). By contrast, "[p]ersons not born in the United States acquire citizenship by birth only as provided by Acts of Congress." Miller , 523 U.S. at 424, 118 S.Ct. 1428. Mr. Lopez contends that the statutory scheme under which he did not derive citizenship at birth is an unconstitutional exercise of Congress’s power.

Our review of a constitutional question is de novo. Anderson v. Milwaukee Cty. , 433 F.3d 975, 978 (7th Cir. 2006). When examining an equal protection claim under the Fifth Amendment,⁸ we first determine whether the statute "impacts a fundamental right or targets a suspect class. When no suspect class or fundamental right is involved, we employ a rational basis test to determine whether the legislative act is constitutional." Eby-Brown Co., LLC v. Wisconsin Dep’t. of Agric. , 295 F.3d 749, 754 (7th Cir. 2002). This rule is particularly appropriate when we are dealing with distinctions made in the context of the admission or removal of noncitizens. Canto v. Holder , 593 F.3d 638, 641 (7th Cir. 2010). In this area, Congress has exceptionally broad power to determine the classes of noncitizens who may enter the Country. See Fiallo v. Bell , 430 U.S. 787, 794, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; see also Kleindienst v. Mandel , 408 U.S. 753, 765–67, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). If "any plausible reason could provide a rational basis for Congress’ decision to treat the classes differently, our inquiry is at an end, and we may not test the justification by balancing it against the constitutional interest asserted by those challenging the statute." Lara-Ruiz v. INS , 241 F.3d 934, 947 (7th Cir. 2001) (quotation marks omitted) (citations omitted). Mr. Lopez does not maintain that he is a member of a suspect or protected class or that his fundamental rights are at stake. See Morales-Santana , 137 S. Ct. at 1689 (applying heightened scrutiny to gender-based classification in the same statutory scheme at issue here). The parties therefore appropriately focus their arguments on whether the since-amended statutory scheme is supported by a rational basis.

The requirement of the statutory provision at the heart of this case can be stated succinctly: A person born abroad to one citizen and one noncitizen parent did not automatically derive citizenship at birth unless the citizen parent had been present physically in the United States before the child’s birth for at least ten years. Five or more of those years had to be after the parent attained the age of fourteen. Mr. Lopez does not contend that this provision does not apply to him. He also does not contest that his mother (the citizen parent) did not fulfill this residency requirement. Instead, he simply maintains that there is no rational basis on which to distinguish between him—a minor child, born abroad to a United States citizen, who lawfully entered the Country and lived in the custody of that United States citizen parent in the United States—and a lawful permanent resident minor child living in the custody of a lawful permanent resident parent when that parent naturalizes.

As the party challenging the constitutionality of the statutory scheme’s differential treatment of the two groups, Mr. Lopez bears the burden of...