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Tineo v. Attorney General United States of America

United States Court of Appeals, Third Circuit

September 4, 2019

JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, AKA Jose Sanchez, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued January 19, 2018

          On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (A040-015-082) Immigration Judge: Walter A. Durling

          Charles N. Curcio [ARGUED] Curcio Law Firm Attorney for Petitioner.

          Stefanie N. Hennes [ARGUED] United States Department of Justice Attorney for Respondent.

          Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges.

          OPINION

          GREENAWAY, JR., CIRCUIT JUDGE.

         In plain terms, we are called to decide whether precluding a father from ever having his born-out-of-wedlock child derive citizenship through him can be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment.

         In not so plain terms, under the now repealed 8 U.S.C. § 1432(a)(2), a "child" born outside of the United States to noncitizen parents became a citizen upon the naturalization of her surviving parent if one of her parents was deceased.[1]Section 1101(c)(1) in turn defined "child" as including a child born out of wedlock only in so far as the child was legitimated under the "law of the child's residence or domicile" or "the law of the father's residence or domicile . . . except as otherwise provided in . . ." § 1432. 8 U.S.C. § 1101(c)(1). Section 1432(a)(3) rounded out the triumvirate and exempted mothers of born-out-of-wedlock children from the legitimation requirement by expressly adding that "the naturalization of the mother" was sufficient "if the child was born out of wedlock and the paternity of the child has not been established by legitimation . . . ." See § 1432(a)(3).

         As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated women and men differently: a naturalized mother could transmit her citizenship to her out-of-wedlock child, regardless of whether the father was alive; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship.

         Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child "is verifiable from the birth itself," and likewise "the opportunity for the development of a relationship between citizen parent and child . . . ." Nguyen v. INS., 533 U.S. 53, 62, 65 (2001); see also Trimble v. Gordon, 430 U.S. 762, 771 (1977) ("The more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required for [those] claiming under their mothers' estates . . . ." (emphasis added)). Rather, like in Trimble, the present concern is with a father being forever precluded from having his out-of-wedlock child derive through him. This problem only arises where the child's mother is deceased, and the only avenue for legitimation under the relevant law is through the marriage of the parents. In that instance, naturalized fathers cannot transmit their citizenship to their out-of-wedlock children as a result of the interplay between §§ 1101(c) and 1432(a)(2), whereas naturalized mothers can via at least § 1432 (a)(3).

         Such is the case with the petition before us. Petitioner Jose Francisco Tineo was born in the Dominican Republic to unwed noncitizen parents who never married. His father moved to the United States and naturalized. His noncitizen mother soon after passed away. At the time, under the law of either his or his father's residence or domicile-the Dominican Republic and New York-legitimation could only occur if his birth parents married. So Tineo's father was forever precluded from having his son derive citizenship through him, despite being a citizen and having cared for his son until the child was 21 years old. On the cusp of being removed from the United States as a noncitizen, Tineo brings this Fifth Amendment challenge to the relevant provisions on behalf of his now deceased naturalized father. We hold that, in this circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and (a)(3) cannot be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. We will therefore grant Tineo's petition.

         I. Background

         A. Arrival in the United States

         Tineo was born in the Dominican Republic on January 16, 1969. His parents, both citizens of the Dominican Republic, never married. His father, Felipe Tineo, moved to the United States and became a naturalized U.S. citizen in 1981. Two years later, his father married a legal permanent resident.

         Tineo came to live with his father once his birth mother died in 1984. He was admitted to the United States as a lawful permanent resident on June 15, 1985, pursuant to an alien relative petition filed by his stepmother. He was 15 years old at the time and lived with his father until he turned 21 in 1990.

         B. Removal Proceedings

         Felipe Tineo died an American in 2006. The question of his son's citizenship has come up on two occasions: once before his death and once after. Both were in the context of removal proceedings. This is in part because only noncitizens may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) ("Jurisdiction in the executive to order [removal] exists only if the person . . . is a [noncitizen]. An assertion of U.S. citizenship is thus a denial of an essential jurisdictional fact in a [removal] proceeding." (internal quotation marks omitted)) (quoted in Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005)); Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1272 (10th Cir. 2018) (noting that citizenship constitutes the denial of an essential jurisdictional fact in a removal proceeding because only noncitizens are removable). As a consequence, immigration judges terminate removal proceedings where the government cannot demonstrate that a petitioner is a removable noncitizen. See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240.8(a); see also Dessouki v. Att'y Gen. of U.S., 915 F.3d 964, 966 (3d Cir. 2019) ("[T]he government failed to prove that Dessouki was [a noncitizen]. So an immigration judge terminated his removal proceedings.").

         1.

         The first proceeding occurred when Tineo was convicted for the sale of a controlled substance in New York state court on October 19, 1993. He was issued a Notice to Appear ("NTA") dated April 20, 2000 and placed in removal proceedings based on that conviction. The proceeding was terminated on November 28, 2001, however, because, as proof of his citizenship, Tineo produced a United States passport that was issued to him in 2001.[2]

         2.

         The second occasion arose pursuant to an NTA issued on October 14, 2014. The NTA charged several bases for Tineo's removal, stemming from three events.[3]

         First, Tineo was convicted on July 8, 2002, of the sale of a controlled substance in New York state court, thus making him inadmissible pursuant to 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and (a)(2)(C).

         Second, on January 15, 2008, upon returning to the United States after a trip abroad, Tineo presented the passport issued to him in 2001. The NTA charged that "[i]n doing so, [he] falsely represented [him]self to be a [U.S.] Citizen . . . to gain entry into the United States," thus violating § 1182(a)(6)(C)(i) and (ii). A.R. 890. The NTA also charged Tineo as being an alien present in the United States without being admitted or paroled, in violation of § 1182(a)(6)(A)(i). This violation was based on the fact that, because Tineo used a United States passport to enter the country and "U.S. Citizens are not inspected, [Tineo] entered without being admitted or paroled after inspection by an Immigration Officer." A.R. 377.

         The third event providing a basis for Tineo's removal was his conviction in 2014 of passport fraud and aggravated identity theft in the Eastern District of Pennsylvania. This conviction arose when, after his passport expired, Tineo attempted to obtain a new passport using the name Luis Padilla. Tineo presented several identification documents in the name Luis Padilla in support of his passport application. Based on this conviction, the NTA charged Tineo as inadmissible, pursuant to § 1182(a)(2)(A)(i)(I).

         C. Challenges to Removal

         Appearing pro se before the immigration judge, Tineo admitted to his criminal convictions, but challenged his removability on the grounds that (1) he derived citizenship through his father and (2) this was evinced by his legally obtained first passport.[4]

         1.

         His derivative citizenship claim was based on former 8 U.S.C. § 1432(a), [5] which provides that:

A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased;[6] or
(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.

8 U.S.C. § 1432(a) (repealed by Pub. L. No. 106-395, Title I, § 103(a), Oct. 30, 2000, 114 Stat. 1632) (emphasis added).

         The statute defines "child" as meaning:

an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or elsewhere . . . .

§ 1101(c)(1) (emphasis added).[7]

         The United States Citizenship and Immigration Services ("USCIS") interpreted the language beginning with "and includes" as restricting the meaning of child to exclude children born out of wedlock who were not legitimated, regardless of whether they were unmarried and under the age of 21. When Tineo filed an application for a certificate of citizenship-also known as a Form N-600-in 2007, USCIS denied his application because he was "a child born out of wedlock" and "had not been legitimated by his [U.S.] citizen father . . . ." App 4. In denying Tineo's derivative citizenship claim, the Immigration Judge (IJ) stated that "[t]he CIS denial letter [regarding the N-600 application] . . . correctly noted the law." App. 10. That is, ...


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