UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-60111

ERNEST ISKANDAR NEHME,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

June 5, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

In t his case we are called upon primarily to decide whether Congress complied with t he

Constitution’s mandate of uniformity when it established the rules of derivative naturalization under

former § 321 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1432 (2000). We hold that

Congress has done so, and that Petitioner has failed to prove that he was ever naturalized under this

or any other section of

t he INA. Petitioner is therefore an alien, and because he is removable by

reason of having committed an aggravated felo ny, we lack jurisdiction pursuant to 8 U.S.C. §

1252(a)(2)(C). Accordingly, we DISMISS his petition.1 Nehme had been convicted of cocaine distribution in 1993, which is an “aggravated felony”

for purposes of the INA. See 8 U.S.C. § 1101(a)(43).

2 I.

BACKGROUND

Petitioner Ernest Iskander Nehme (“Nehme”) was born in 1963 in Lebanon to parents who

were Lebanese citizens. He emigrated to the United States in 1970 as a lawful permanent resident,

and resided in Pennsylvania with his parents. In 1980, when Nehme was sixteen, his father became

a naturalized citizen. At that time, Nehme’s parents were informally separated, and his mother lived

o n and o ff with the family. However, his parents never obtained a judicial separation or custo dy

decree, and becaus e o f their religious beliefs, they never divorced. Throughout this time, Nehme

resided continuously with his father in Pennsylvania. His mother eventually became a naturalized

citizen in 1987, when Nehme was twenty-three years old.

In 1999, the Immigration and Naturalization S e rvice (“INS”) commenced deportati on

proceedings against Nehme, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as

an alien convicted of an aggravated felony. 1 Before the Immigration Judge (“IJ”), Nehme argued that

he had automatically become a naturalized citizen under former 8 U.S.C. § 1432 when his father was

naturalized, and therefore he was not subject to deportati on. Section 1432 provided in pertinent part:

(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:

(1) The naturalization of both parents; or

* * *

(3) The naturalization of the parent having legal custody of the child

when there has been a legal separation of the parents . . . ; and if

(4) Such naturalization takes place while such child is under the age

of eighteen years; and

(5) Such child is residi ng in t he United States pursuant to a lawful2 By t he time Nehme’s mother was naturalized, Nehme was over eighteen years of age and

would not have q ualified for derivative naturalization under § 1432(a)(1) (naturalization of both

parents).

3

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

. . . (3) of this subsection, or thereafter

begins to reside permanently in the United States while under the age

of eighteen years.

Nehme conceded to t he IJ t hat by the time his father became a naturalized citizen,

Pennsylvania had abolished the judicial mechanism known as “legal separation” of married persons.

However, a couple could obtain a divorce in Pennsylvania if they lived apart with the intent to cease

cohabitation as husband and wife. Nehme argued that because a formal process of “legal separation”

did not exist in Pennsylvania in1 980, and because his parents had a ctually separated and met the

prerequisite for divorce, his parents were “legally separated” under Pennsylvania law. Consequently,

he had been automatically naturalized under § 1432 when his father naturalized, because at that time

he was (1) in the actual, uncontested custody of his father, (2) under eighteen and (3) residing in the

United States as a permanent resident. 2

The IJ rejected Nehme’s argument, finding that his parents had never obtained a legal

separation when that process existed under Penn sylvania law, and that at the time of his father’s

naturalization in 1980, legal separation was no longer possible in that state. The IJ then ordered that

Nehme be deported, and he appealed his case to the Board of Immigration Appeals (“BIA”). The

BIA adopted the IJ’s decision and dismissed the appeal.

Nehme now petitions this court to review the BIA’s decision. He argues that the decision of

the IJ and the BIA that Nehme’s citizenship should be determined by reference to Pennsylvania law

rather th an federal standards was arbitrary, capricious, and contrary to INS precedent. He also4

contends that the legal separation requirement in former 8 U.S.C. § 1432(a)(3) is not a “uniform Rule

of Naturalization” as required by Article I, Section 8, Clause 4 of the Constitution. Finally, he argues

that the Child Citizenship Act of 2000, which repealed § 1432 and removed the “legal separation”

requirement from the rules of derivative naturalization, should be applied to him retroactively.

II.

ANALYSIS

A. Jurisdictional Requirements and Standard of Review

We must begin by determining whether we have jurisdiction to review the BIA’s dec isio n.

We review our jurisdiction de novo

. Lopez-Elias v. Reno , 209 F.3d 788, 791 (5 th Cir. 2000), cert.

denied

, 121 S. Ct. 757, 148 L. Ed. 2d 660 (2001). Congress has specifically commanded in 8 U.S.C.

§ 1252(a)(2)(C) that no court has jurisdi c tion to review deportati on orders for aliens who are

removable because they were convicted of aggravated felonies. Nonetheless, we always have

jurisdiction to consider whether the specific conditions exist that bar our jurisdiction over the merits,

namely, whether the petitioner is (1) an alien, (2) who is deportable, (3) for committing the type of

crime that bars our review. M ax-George v. Reno

, 205 F.3d 194, 199 (5 th Cir. 2000) (quoting

Richardson v. Reno

, 180 F.3d 1311, 1315 (11 th Cir. 1999)). Moreover, we “must determine whether

the particular provisions classifying the petitioner under the jurisdiction-stripping provision . . . are

being constitutionally applied.” I d. at 199-200. Therefore, for jurisdictional purposes only, we may

determine whether Nehme may be properly classified as an alien.

However, the INS argues that Nehme must overcome a second jurisdictional hurdle imposed

by Congress in 8 U.S.C. § 1252(d)(1). That section provides that a court may review a final order

of removal only if the alien has exhausted all his administrative remedies. We have stated that when5

exhaustion is statutorily mandated, it is a jurisdictional requirement. T ownsend v. INS

, 799 F.2d 179,

181 (5 th Cir. 1986). S ee als o Witter v. INS

, 113 F.3d 549, 554 (5 th Cir. 1997) (“We have no

jurisdiction to consider issues that were not presented to or considered at the administrative level on

appeal.”). The INS correctly points out that before the IJ and the BIA, Nehme did not challenge the

application of Pennsylvania law to his case, in fact, he assume d Pennsylvania law should govern.

Likewise, he never challenged the constitutionality of the derivative naturalization rules in 8 U.S.C.

§ 1432. Therefore, he should not be permitted to object to the application of stat e law or to the

validity of § 1432 on appeal.

The exhaustion requirement in 8 U.S.C. § 1252(d)(1) appears to be triggered only when we

would otherwise have jurisdiction over the merits of Nehme’s petition for review. However, we need

not decide that issue for several reasons. First, our determination whether we have jurisdiction under

the bar in 8 U.S.C. § 1252(a)(2)(C) will effectively decide the merits of this case. If Nehme is not

an alien, then we must con clude both that we have jurisdiction, and that Nehme is not deportable.

And, as we have already stated, in order to make this determination we may examine, de novo , (1)

whether Nehme is an alien under the terms of INA, and (2) whether “the particular provisions

classifying [him] under the jurisdiction-strippi ng pro vision . . . are being constitutionally applied.”

Max-George

, 205 F.3d at 199-200. Under that formulation, we may consider Nehme’s arguments

that he became a citizen under § 1432, and if he did not, whether that provision is unconstitutional.

However, we may not consider his specific claim t hat t he decision of the BIA was arbitrary,

capric io us and co ntrary to INS precedent because that claim addresses the merits of the BIA’s

decision.

Second, even if the statutory exhaustion requirement applies, we would reach the same result.6

The BIA does not have jurisdiction to decide the constitutionality of acts of Congress. See Johnson

v. Robison , 415 U.S. 361, 368, 94 S. Ct. 1160, 1166, 39 L. Ed. 2d 389 (1974). Therefore, Nehme

would not be required to have exhausted his constitutional arguments before the BIA. C f. Anwar v.

INS

, 116 F.3d 140, 144 n.4 (5 th Cir. 1997); see also Singh v. Reno

, 182 F.3d 504, 511 (7 th Cir. 1999).

Moreover, the Child Citizenship Act of 2000 became effective after Nehme’s appeal to the BIA, so

he could not have previously argued for its application. However, the exhaustion requirement

prevents him from raising his arbitrary and capricious claim for the first time on appeal.

Finally, before proceeding with our analysis, we pause to consider the INS’s contention that

we should give Chevron deference to its interpretation of the INA in the course of our jurisdictional

inquiry. S ee Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

, 467 U.S. 837, 842-

44, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984). The INS’s contention lacks merit. In

Lopez-Elias, we stated that Chevron deference is not due “with respect to the enforcement of this

court’s jurisdictional limitations.” 209 F.3d at 791. “[T]he determination of our jurisdiction is

exclusively for the court to decide.” Id.

B. Naturalization under 8 U.S.C. § 1432

As we have already observed, Nehme’s argument before this court is somewhat different from

the argument he made in the administrative proceeding. In that proceeding, he argued that his parents

had been “legally separated” in th e eyes of Pennsylvania law when his father became a naturalized

citizen in 1980. He contended, t herefore, that he had been automatically naturalized at that time

under 8 U.S.C. § 1432. At oral argument before this court, Nehme reiterated his position that his

parents were “legally separated” for the purposes of § 1432(a)(3). However, he now justifies this

c onclusion because of

the Constitution’s requirement that Congress establish “uniform Rules o f3 The parties agree that an absolute divorce would satisfy the legal separation requirement.

7 Naturalization.” U.S. Const., art. I, § 8, cl. 4. Specifically, Nehme asserts that requiring the judicial

separation of the parents as a predicate for the naturalization of the child makes citizenship depend

on the law of the state of the family’s residence, rather than on a federal standard. Consequently, §

1432(a)(3) could not have a uniform operation throughout the United States, because not all states

provide for judicial separation, and even among the states which do provide for it, the relevant laws

vary. Nehme objects that in some states, like Pennsylvania, parents would have to be divorced for

their children to be naturalized under § 1432, but in others, judicial separation would suffic e. 3

Therefore, in his briefs, Nehme argued that the legal separation requirement should be read out of

§1432(a)(3), so that § 1432(a)(3) may operate uniformly and constitutionally in every state. At oral

argument, he proposed an alternative co nst ruction whereby “legal separation” should mean

“consensual separation not engendered by an illegal act.” Under this reading of the term, his parents

would have been “legally separated” in 1980 because they voluntarily lived apart unde r lawful

circumstances.

Our task is to determine whether Congress has provided that an alien in Nehme’s situation

could be automatically naturalized under § 1432, and if not, whether § 1432 is a uniform ru l e of

naturalization as required by the Constitution. For ease of analysis, we will first determine what the

t erm “legal separation” in § 1432(a)(3) means. Next, we will consider what the constitutional

mandate of uniformity requires in the context of naturalization laws, and final ly whether the legal

separation requirement conforms with the unif o rmit y requirement. Our conclusions will dictate

whether Nehme is a citizen or an alien, and consequently, whether we have jurisdiction in this case.

1. “Legal Separation”8

While Nehme asserted at oral argument t hat we must interpret “legal separation” to mean

essentially “de facto separation,” the INS argued that the term should be defined according to state

law. We start with the general assumption that in absence of plain language to the contrary, Congress

does not make the application of a federal act dependent on state law. M ississippi Band of Choctaw

Indians v. Ho lyfield

, 490 U.S. 30, 43, 109 S. Ct. 1597, 1605, 104 L. Ed. 2d 29 (1989) (quoting

Jerome v. Unites States

, 318 U.S. 101, 104, 63 S. Ct. 483, 485, 87 L. Ed. 640 (1943)). One

justification for this rule is that Congress intends that federal statutes have a nationwide application.

Choctaw Indians

, 490 U.S. at 43, 109 S. Ct. at 1605-06. “Accordingly, the cases in which we have

found that Congress intended a state-law definition of a statutory term have often been those where

uniformity clearly was not intended.” I d. at 43-44, 109 S. Ct. at 1606. Anot her reason for the

gen eral presumption is that permitting state law to control a federal act might impair a federal

program. I d. at 44, 109 S. Ct. at 1606. Therefore, we must look to the purpose of the federal statute

to ascertain congressional intent. Id.

We are also mindful of the rule that where an interpretation of a statute would raise serious

constitutional concerns, we must construe the statute to avoid those problems unless our construction

is plainly contrary to the will of Congres s. So lid Waste Agency v. United States Army Corps of

Eng’rs

,

__ U.S.

__, 121 S. Ct. 675, 683 (2001). Therefore, we must interpret § 1432(a)(3) in light

of the constitutional requirement of uniformity. I n re Edgar , 253 F. Supp. 951, 953 (E.D. Mi ch.

1966). It appears that the majority of the courts considering the issue have applied these interpretive

principles to conclude that our naturalization laws should be construed according to a federal, rather

than state, standard. S ee, e.g., Fierro v. Reno

, 217 F.3d 1, 3-4 (1 st Cir. 2000) (“What is meant by the

phrase ‘having legal custody of the child’ [in § 1432] is, of course, a question of federal stat ut o ry4 But see In re Longstaff

, 538 F. Supp. 589, 591 n.1 (N.D. Tex. 1982), aff’d on other grounds

, 716 F.2d 1439 (5 th Cir. 1983) (defining “good moral character” for naturalization according to Texas

criminal law, and stating “We do not disagree with the idea of a uniform rule. Rather, we hold the

u nifo rm rule is . . . that of ‘good moral character.’”). Courts have also endorsed using federal,

instead of state, standards to interpret federal laws regulating immigration. See Wilson v. INS

, 43

F.3d 211, 214-15 (5 th Cir. 1995) (acknowledging the g eneral rule that federal law governs the

application of congressional enactments in the absence of a directive to the contrary); Ye v. INS

, 214

F.3d 1128, 1132-33 (9 th Cir. 2000) (using a federal common law definition of “burglary” to determine

if petitioner had been convicted of a deportable offense); Kahn v. INS

, 36 F.3d 1412, 1415 (9 th Cir.

1994) (interpreting the term “family ties” as a factor to be considered in granting discretionary relief

from deportati on, and ho lding “the Board must apply a flexible, uniform standard that reflects the

federal policies underlying §212(c) [of the INA].”); Moon Ho Kim v. INS

, 514 F.2d 179, 181 (D.C.

Cir. 1975) (interpreting “adultery” for the purpose of eligibilit y for voluntary departure, and holding

tha t “t he appro priate approach is the application of a uniform federal standard.”). B ut see BreaGarcia v. INS

, 531 F.2d 69 3, 696-97 (3 rd Cir. 1976) (using state law to define “adultery” in the

absence of a federal definition, and suggesting that “[a]rguably, Congress intended to defe r to the

state in which an alien chooses to live for the precise definition

. . . for it is that particular community

which has the greatest interest in its residents’ moral character.”).

9 interpretation.”); Nemetz v. INS

, 647 F.2d 432, 435 (4 th Cir. 1981) (“We agre e wit h Nemetz that

whether a person is of good moral character for purposes of naturalization is a question of federal

law.”); Edgar

, 253 F. Supp at 953 (“[I]n reaching [a] decision upon the meaning of the federal act

we are not remitted to a patchwork of state laws . .

. .”); and In re Briedis

, 238 F. Supp. 149, 150

(N.D. Ill. 1965) (“[Defining adultery according to state law] would lead t o an absurd patchwork

result, resting a petitioner’s right to United States citizenship upon the whims and idiosyncracies of

individual state legislatures.”). 4

Some courts, while endorsing adherence to uniform federal standards, have nevertheless held

that those standards can be informed by st at e law. In an opinion interpreting the same statutory

provision at issue in this case, the Seventh Circuit reasoned that while the term “legal separation”

must take its meaning from federal law, it was appropriate for federal law to look to state or foreign

law for a rule of decision. W edderburn v. INS

, 215 F.3d 795, 799 (7 th Cir. 2000), cert. denied

, 1215 See also In re Johnson

, 292 F. Supp. 381, 383-84 (E.D.N.Y. 1968) (considering the meaning

of “adultery” for purposes of determining good moral character, and concluding that “the statutory

design seems to have been to provide for reference to state law, at least as a point of departure,” as

modified by those federal standards required to ensure uniformity.).

10 S. Ct. 1226 (2001). Similarly, in N emetz

, the Fourth Circu it determined that i n order to devi se a

federal standard for determining whether an alien has engaged in acts precluding a finding of “good

moral character” for naturalization, a court may look init ially to state criminal law. N emetz

, 647 F.2d

at 436. For crimes that were treated uniformly throughout the country, the court believed that “state

law will be the best barometer of the conscience of the country as a whole.” I d. However, the court

devised its own federal standard for certain private acts that were criminalized in only some of the

states. Id. 5

W e agree that in interpreting a federal statutory term, a court may devise a federal rule by

reference to state law. However, we reject any contention that the law o f any one state should

govern the determination whether an alien child’s parents were “legally separated.” The INS cites

the Supreme Court’s de cision in De Sylva v. Ballentine , 351 U.S. 570, 76 S. Ct. 974, 100 L. Ed.

1415 (1956) as support for the IJ’s determination that the question of legal separation was governed

by Pennsylvania law. However, we find that case is distinguishable. There, the Court interpreted the

term “children” in § 24 of the Copyright Act. The Court acknowledged that the inquiry was a matter

of federal law, but because there is no federal law of domestic relations, it turned to state law for a

definition. I d. at 580, 76 S. Ct. at 980. However, the Court found that the law of one particular state

was controlling, and that was the state where the parties’ relationships were centered. I d. at 581, 76

S. Ct. at 980. While this approach may have been appropriate in the context of copyright law, we

think it is not appropriate in t he area of naturalization law, where the Constitution specifically6 Although the First Circuit cited De Sylva in its opinion in Fierro

, 217 F.3d at 4, it held that

“the requirement of ‘legal custody’ in § 1432 should be taken presumptively to mean legal custody

under the law of the state in question.” (emphasis added). However, despite this presumption, the

court refused to give effect to a s t at e nunc pro tunc custody order because, in part, it would have

allowed “the state court to create loopholes in the immigrations laws,” id. at 6, and this “reflect[ed]

an approach to defining legal custody that is not consistent with section 1432.” Id. at 4.

7 We think it important to note that, consistent with our reasoning that federal standards should

govern the interpretation of naturalization laws, Congress has explicitly provided federal definitions

for such domestic relations terms as “parent” and “child” as they are used in the subchapter containing

§ 1432. See 8 U.S.C. § 1101(c)(1) and (2).

8 There appears to have been another, somewhat overlapping section of the United States

Code that addressed the naturalization of children who already resided in the United States at the time

of the naturalization “of their parents.” Act of Apr. 14, 1802, ch. 28, § 4, 2 Stat. 155, (1802) (Rev.

St at . § 2172, codified at former 8 U.S.C. § 7). However, this provision may not have operat ed

prospectively to persons naturalized after 1802. S ee United States ex rel. Guest v. Perkin s , 17 F.

Supp. 177, 179 (D.D.C. 1936). It was later amended and consolidated with § 5 of the 1907 Act by

the Nationality Act of 1940.

11 commands that Congress legislate uniform rules of naturalization. 6 As the Supreme Court stated in

Choctaw Indians

, a state-law definition of a federal statutory term is appropriate only where Congress

clearly did not intend uniformity. 490 U.S. at 43-44, 109 S. Ct. at 1606. 7

With these threshold principles in mind, we now turn to the meaning of “legal separation.”

As the Supreme Court has dictated, we must look to the purpose behi nd § 1432 to ascertai n

Congress’s intent. See id. at 44, 109 S. Ct. at 1606. The predecessor statute to § 1432 originally

provided that a child born abroad of alien parents would automatically be deemed a citizen by virtue

of the naturalization of either of his parents, beginning five years afte r t he child began to reside

permanently in the United S tates. Act of March 2, 1907, ch. 2534, § 5, 34 Stat. 1228 (1907)

(codified at former 8 U.S.C. § 8) (as amended by the Act of May 24, 1934, ch. 344, § 2, 48 Stat. 797

(1934)). 8 This section was amended by the Nationality Act of 1940, when for the first time, Congress

explicitly required the naturalization of both parents, unless the parents had been legally separated and9 An explanatory commen t ary by t he Committee of Advisers who submitted the draft

Nationality Code to the Executive Branch ( reprinted in Hearings, at 445) attributes the legal custody

and legal separation conditions to the decision in In re Lazarus

, 24 F.2d 243 (N.D. Ga. 1928) and an

Attorney General opinion (37 Op. Atty. Gen. 90 (1933)). Both the L azarus court and the Attorney

General opinion examined § 5 of the 1907 Act, which provided for the automatic naturalization of

an alien child upon the “naturalization of or resumption of American citizenship by the parent.” The

court held that because “[t]otal divorce . . . terminates the marital relation,” the alien daughter of a

divorced woman who resumed her American citizenship by naturalization would also be naturalized.

24 F.2d at 244. Interestingly, the court explicitly declined to decide the effect of the law o n alien

children where only one, undivorced parent obtained naturalization, even though the law at the time

provided for the automatic naturalization of the child upon the naturalization of simply “the parent.”

Id. The 1933 Attorney General opinion reasoned that a mother was the “parent” under § 5 of the

1907 Act only because she had obtained an absolute divorce from her child’s alien father. 37 Op.

12 the parent with legal custody obtained naturalization. Nationality Act of 1940, Pub. L. No. 76-853,

ch. 876, § 314, 54 Stat. 1137, 1145-46 (1940) (codified at former 8 U.S.C. § 714). The legislative

history behind this particular change is sparse, but it is clear that the overall intent behind the 1940

Act was to make it more difficult for aliens to obt ain Unit ed States citizenship. Congress was

concerned about the burden on the United States government and its agencies of protecting persons

who were only “no minal” citizens of this country and whose “real interests,” as demonstrated by their

residence abroad, was not in the United States. S. Rep. No. 76-2150, at 4 (1940). Moreover,

Congress found especially problematic the number of dual nationals who resided in foreign countries

while also claiming the protecti ons of the United States. I d. ; see also 86 Cong. Rec. 11945-46 (1940)

(debate of H.R. 9980). Accordingly, the Deputy Commissioner of the INS testified that the changes

contained in the 1940 Act rendered the rules governing the automatic naturalization of alien children

“much stricter” than under prior law. T o Revise and Codify the N at io nalit y Laws of the United

States into a Comprehensive Nationality Code: Hearings Before the House Comm. on Immigration

and Naturalization

, 76 th Cong. 90-91 (1940) (hereinafter “Hearing s”) (statem ent of Thom as B.

Shoemaker, Deputy Commissioner of Immigration and Naturalization). 9Atty. Gen. At 94. However, in 1934, § 5 of the 1907 Act was amended to permit the automatic

naturalization of the child upon “the naturalization of or resumption of American citizenship by the

f a ther or the mother ” (emphasis added). Examining this provision, the court in E x rel. Guest

co nsidered the case of a mother who had separated from her husband by mutual consent, wit h an

agreement that she should have custody of their child. 17 F. Supp. at 180. The court held that she

fell within the provisions of the 1934 Act and her child could be automatically naturalized when she

resumed her American citizenship. I d. The Committee of Advisers appears to have overlooked this

intervening statutory change.

10 In Espindola v. Barber

, 152 F. Supp 829 (N.D. Cal. 1957), the court observed that a Senate

committee investigating immigration laws in 1950 concluded that under the 1940 Act, the naturalized

parent must have been judicially separated and have had sole legal custody of the child in order for

the child to be automatically naturalized. A private separation agreement would not have sufficed.

Id. at 831 (citing S. Rep. No. 81-1515, at 709 (1950)).

13 This history indi cat es that Congress wanted to ensure that only those alien children whose

“real int erests” were located in America with their custodial parent, and not abroad, should be

automatically naturalized. We also think Congress could have rationally concluded that requiring the

naturalization of both parents of the alien child, when the parents remain married, was necessary to

pro mo t e marital and family harmony and to prevent the child from being separated from an alien

parent who has a legal right to custody. See Fierro , 217 F.3d at 6. Moreover, acquiring American

citizenship usually means disavowing one’s original citizenship and can involve serious consequences

such as milit

ary service or tax obligations. S e e Wedderburn , 215 F.3d at 800. It makes sense,

therefore, that when the child’s parents are still married, the child does not automatically acquire a

new citizenship upon the naturalization of only one parent. Given these considerations, we think

Congress clearly intended that the naturalization of only one p arent would resul t i n the autom ati c

natural ization of an alien child only when there has been a formal, j udicial alteration of the marital

relationship. 10

We have already stated that our formulation of a federal standard by which to interpret the11 See Ariz. Rev. Stat. Ann. § 25-313 (West 2000); Cal. Fam. Code § 2330 (West 2000); Colo.

Rev. Stat. Ann. § 14-10-106 (West 2000); Conn. Gen. Stat. Ann. § 46b-40 (West 2000); D.C. Code

Ann. § 16-904 (1998); 750 Ill. Comp. Stat. Ann. 5/402 (West 2000); Ind. Code Ann. § 31-15-3-2

(West 2000); Ky. Rev. Stat. Ann. § 403.230 (Banks-Baldwin 2000); Mo. Ann. Stat. § 452.305 (West

2000); Mont. Code Ann. § 40-4-104 (2000); N.H. Rev. Stat. Ann. § 458:26 (2000); Ohio Rev. Code

Ann. § 3105.17 (West 2000); S.D. Codified Laws § 25-4-17.2 (Michie 2000); Tenn. Code Ann. §

36-4-102 (2000); Vt. Stat. Ann. tit. 15, § 555 (2000); 16 V.I. Code Ann. § 104 (2000); Wash. Rev.

Code Ann. § 26.09.020 (West 2000); and Wis. Stat. Ann. § 767.07 (2001). This list does not include

those other states which have similar judicial mechanisms called “limit ed divorce,” “separation [or

divorce] from bed and board,” “judicial separation,” or simply “separation.”

14 term “legal separation” may also be informed by state law, particularly in this case, where there is no

ready-made, federal body of law on domestic relations. We have identified four states that have a

statutory definition of the terms “legal separation” or “legally separated.” In each case, the statutory

definition requires a judicial sanction. See Ala. Code § 30-2-40(b) (2000) (“A legal separation is a

court determination of the rights and responsibilities of a husband and wife arising out of the marital

relationship.); Del. Code Ann. tit. 13, § 901(8) (2000) (“‘Legally separated’ means any persons or

persons who, by a decree of the appropriate court of any other state of the United States

. . . has been

accorded the right to reside separate and apart from his or her spouse, o r is a party to a decree of

divorce from bed and board or its equivalent.”); Minn. Stat. Ann. § 518.06 (1) (West 2000) (same

as Alabama); and Neb. Rev. Stat. § 42-347(3) (“Legal separation shall mean a decree of a court of

competent jurisdiction providing that two persons who have been legally married shall thereafter live

separate and apart

. . . .”). Another eighteen states or territories have a statutory mechanism called

“legal separation,” and in each case the relevant laws contemplate a judicial decree. 11

We think these state laws make it clear that in the United States, the term “legal separation”

is uniformly understood to mean judicial separati on. S ee also Wedderburn

, 215 F.3d at 799

(“[D]omestic relations law in the United States treats ‘legal separation’ as the judicial suspension or15

dissolution of a marriage.”). This is so even though not every state provides for legal separation. As

the Fourth Circuit reasoned in Nemetz

, because the process is treated fairly uniformly throughout the

country, state law may be the “best barometer of the conscience of the country as a whole.” 647 F.2d

at 436. Moreover, adopting a definition that does not contemplate a judicial decree, as Nehme would

have us do, would lead to an absurd result: every husband and wife who are voluntarily apart from

one another under legal circumstances would be “legally separated.” Such an interpretation leaves

no real meaning for the word “legal,”an d is at o dds with a common sense understanding of legal

separation. S ee Wedderburn

, 215 F. 3d at 799; Charles v. Reno

, 117 F. Supp. 2d 412, 418 (D. N.J.

2000).

Finally, we note that our interpretation is in accord with the INS’s official interpretation of

§ 1432, which, for some reason, appears not to have been cited by either the IJ o r the INS in its

briefs. The interpretation does not provide that the law of any particular state should control. S ee

INS Interp. 320.1(6) (“Legal custody of the child

. . . may follow judicial proceedings, which

terminate the marriage completely, as by absolute divorce, or which merely separate the par t ies

without destroying the marital status.”). S ee also Matter of H

, 3 I. & N. Dec. 742, 744 (C.O. 1949)

(endorsing the vi ew t hat “legal separation” means “either a limited or absolute divorce obtained

through judicial proceedings.”).

The IJ was correct to some extent in looking to Pennsylvania law to determine whether

Nehme had been naturalized under § 1432, because that was where Nehme’s parents lived and where

they w o uld have been most likely to obtain a separation decree. However, the fact that legal

separation was no longer possible in Pennsylvania in 1980 does not end the inquiry, because we have

rejected the proposition that the law of any one state should be controlling in this case. However,12 Nehme also has not demonstrated that his parents’ informal separation would have

constituted a “legal separation” in any state, including Pennsylvania.

16 Nehme has presented no evidence that his parents would have been considered legally separated in

any state under the federal standard that we have formulated. 12 Therefore, we conclude that he did

not meet the requirements of § 1432 and consequently he never became a naturalized citizen.

2. The Naturalization Clause

Having formulated a definition of “legal separation,” we now turn to the history and meaning

of the uniformity requirement in the Naturalization Clause to decide § 1432’s constitutionality. Under

the Articles of Confederation, citizenship was entirely subject to state control. U .S. Term Limit s v.

Thornton

, 514 U.S. 779, 872, 115 S. Ct. 1842, 1888, 131 L. Ed. 2d 881 (1995) ( Thom as, J.,

dissenting). The diversity of state immigration policies led James Madison to observe in The

Federalist No. 42 that:

The dissimilarit

y in the rules of naturalization has long been remarked as a fault in our

system, and as laying a found at ion for intricate and delicate questions. . . . In one

Sta t e, residence for a short term confirms all the rights of citizenship: in another,

qualifications of greater importance are required.

. . . We owe it to mere casualty, that

very serious embarrassments on this subject have been hitherto escaped. By the laws

of the several Sates, certain description s o f aliens, who had rendered themselves

obnoxious, were laid under inte rdict s inconsistent not only with the rights of

citizenship but with the privilege of residence. What would have been t he

consequence, if such persons, by residence or otherwise, had acquired the character

of citizens under the laws of another State, and then asserted their rights as such, both

to residence and citizenship, within the State proscribing them?

Madison explained that to avoid such conseq u ences, the Constitution authorized the federal

government to establish uniform rules of naturalization throughout the United States. This power,

along with the power to establish uniform laws of bankruptcy, would tend to “faci l i tate the13 The concept of “geographical uniformity” as opposed to personal or “tru e” uniformity

appears to have first emerged in the Supreme Court’s tax cases. S ee

, e.g.

, Knowlton v. Moore

, 178

U.S. 41, 96, 20 S. Ct. 747, 769, 44 L. Ed. 969 (1900) (“The proceedings of the Continental Congress

also make it clear that the words ‘uniform throughout the United States’

. . . [were used] always with

reference purely to a

geographical uniformity and as synonymous with the expression ‘to operate

generally throughout the United States.’”; see generally In re Sullivan

, 680 F.2d 1131, 1134 (7 th Cir.

1982).

17 intercourse between the States.” Id.

As early as the 1880’s, federal courts held that in the bankruptcy context, the uniformity rule

merely requires Congress to pass one law applicable to all states of the union. Darling v. Berry , 13

F. 659, 667-68 (C.C.D. Iowa 1882). A law is uniform even though it operates differently in different

states, because Congress “cannot create uniform conditions and circumstances in the various states

of the Union.” I d. at 668. The Supreme Court has referred to this requirement as one of

“geographical uniformity,” as opposed to personal uniformity. H anover Nat’l Bank v. Moyses

, 186

U.S. 181, 188, 22 S. Ct. 857, 860-61, 46 L. Ed. 1113 (1902). 13 “The general operation of the law

is uniform although it may result in certain particulars differently in different states.” I d. at 190, 22

S. Ct. at 861. Thus, the Supreme Court has noted that a federal bankruptcy law which recognizes

and enforces state laws affecting exemptions and priorities of payment is a uniform law, even though

the law may operate differently from state to state. S tellwagen v. Clum , 245 U.S. 605, 613, 38 S.

Ct. 215, 217, 62 L. Ed. 507 (1918). In more recent times, the Court has stated that the uniformity

requirement is not a “straightjacket” prohibiting Congress “from recognizing that state laws do not

treat commercial transactions in a uniform manner.” R ailway Labor Executives’ Ass’n v. Gibbons

,

455 U.S. 457, 469, 102 S. Ct. 1169, 1176, 71 L. Ed. 2d 335 (1982).

Although there is very little case law on the matte r, we t hink that this construction of the14 But see Sullivan

, 680 F.2d at 1135 (observing that the naturalization clause has not been

interpreted to require only geographic uniformity).

15 See also Morgan v. Virginia

, 328 U.S. 373, 388-89, 66 S. Ct. 1050, 1059, 90 L. Ed. 1317

(1946) (Frankfurter, J., concurring) (indicating th at t he po wer to establish uniform rules of

naturalization requires geographic uniformity).

18 uniformity requirement also applies to naturalization law. 14 Such a construction is entirely consistent

with the concerns of the Constitution’s framers, as expressed by Madison in The Federalist, that there

should be a single, federal body of rules for naturalization. In K haraiti Ram Samras v. United States

,

125 F.2d 879, 881 (9 th Cir. 1942), the Ninth Circuit declared that the Constitution’s uniformity rule

for naturalization “relates to geography only.” Therefore, a law limiting naturalization to persons of

the “White Race or of African nativity or descent” was valid, because it was uniformly applicable to

all the states even though it did not extend naturalization uniformly to all races. I d. at 880-81. This

reasoning was adopted in In re Lee Wee

, 143 F. Supp 736, 737-38 (S.D. Cal. 1956), which dealt with

a porti on of the INA that provided that no alien could be deemed to have a “good moral character”

if he had been convicted of two or more gambling offenses. The court held that the law was uniform

even though a person who li v ed in a city where gambling was permitted might be entitled to

naturalization, whereas in another city, gambling could result in a criminal conviction and a denial of

citizenship. Id. at 738. 15

These cases are consistent with the decisions holding that the Constitution’s uniformity rule

means that naturalization laws must be interpreted according to federal standards, rather than state

law. In N emetz

, 647 F.2d at 435, the Fourth Circuit considered whether the petitioner’s homosexual

activity constituted a “crime of moral turpitude” precluding naturalization. The court observed that

the petitioner’s conduct constituted a crime in his home state, but not in states that had decriminalized16 See also Johnson

, 292 F. Supp. at 384 (considering the meaning of “adultery” for purposes

of determining good moral character, and holding that the law to be applied was state law “as

modified by those standards of a federal nature which are necessary to assure minimal uniformity and

fairness.”); and Briedi s , 238 F. Supp. at 151 (also considering “adultery,” and holding that under

Article I, Section 8 , Clause 4 of the Constitution, “the better view is to develop a uniform federal

standard when interpreting a statute relating to the federal right to citizenship.”).

19 private, consensual sodomy. Therefore, it was simply an “accident of geo graphy” that placed his

naturalization petition in jeopardy. I d. To avoid leaving the requirements for citizenship to state

control, the court devised a federal standard to determine whether the petitioner had committed acts

constituting a crime of moral turpitude. Id. at 435-37. 16

Although the Fourth Circuit eschewed reliance on state law to define a federal rule when state

laws on the subject were diverse, the court did n ot hold t hat a rule of naturalization, interpreted

according to a federal standard, would be unconstitutional because it caused different outcom es from

state to state. Thus, the federal law at issue in I n re Lee Wee

, which defined “good moral character”

according to a federal standard (conviction o f t wo o r mo re gambling offenses), did not lack

uniformity because gambling was a c r ime in less than all the states. 143 F. Supp at 738. We

conclude, therefore, that the Constitution simply requires Congress to enact rules of naturalization

that apply uniformly throughout the United States, even though th o se unifo rm federal rules may

produce results that differ by state.

Constitutionality of § 1432(a)(3)

Given our construction of the uniformity requirement in the Naturalization Clause, we see no

reason why § 1432(a)(3) is constitutionally infirm. The requirement of geographic uniformit y has

been satisfied because the “legal separation” requirement is applicable with equal force, and has the

same meaning, in every state. However, what constitutes a “legal separation” is not to be decided17 Nehme’s citation of Bindczyck v. Finu cane , 342 U.S. 76, 72 S. Ct. 130, 96 L. Ed.100

(1951) does nothing to advance his argument. In that case, a Maryland court vacated an order of

naturalization pursuant to its general power under Maryland law to set aside judgments, instead of

following the federal procedures set forth in § 338 of the Nationality Act of 1940. The Supreme

Court held that permitting § 338 to be supplemented by state law would make the retention of

citizenship “contingent upon application of myriad discordant rules by a thousand judges scattered

over the land.” Id. at 85, 72 S. Ct. at 135. Our reasoning in the instant case is entirely consistent

with the Court’s holding in Bindczyck

, because we have devised a uniform federal standard by which

to define “legal separation” which is not contingent upon the application of discordant state rules.

Moreover, the Maryland court’s order had a much more direct impact on the right to citizenship than

would a state court’s grant of a legal separation.

20 state by state; rather, it is a federal standard. But considering that the uniformity rule does not require

that naturalization laws produce the same result in every state, Nehme cannot complain that in

Pennsylvania his parents would have h ad t o o bt ain a divorce for him to have been automatically

naturalized, while in other states, a legal separation would have sufficed. Therefore, we conclude that

the requirement of legal separation, meaning a judicial separation, is a uniform rule of naturalization. 17

Federal naturalization law necessarily intersects with conduct and legal relationships that have

been reserved for regulat io n exclusively by the states. It would be impossible for Congress to

legislate the rules of naturalization without some reference to state laws governing domestic relations,

crime, or similar matters. Congress must formulate rules that apply to every state of the union, and

these rules must be interpreted according to uniform federal standards. But a certain am ount of

disparity in the operati on of federal naturalization law within the individual states is inevitable, and

this unavoidable consequence does not in itself render a rule of naturalization unconstitutional. As

the Seventh Circuit stated in Wedderburn , “[a] law does not become unconstitutional just because

it does not fit 100% of the cases; mismatches between legal rules and the world at large are18 Nehme suggests in his briefs that § 1432(a)(3) is unconstitutional for two additional reasons.

First, relying on Sherbert v. Verner

, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 965 (1963), he contends

that his parents were denied the free exercise of their religion under the First Amendment because the

“benefit” of derivative naturalization was conditioned upon their obtaining a full divorce. We reject

this argu ment because Nehme has no standing to complain of a denial of his p arents’ First

Amendment rights, if there was any. See Rogers v. Brochette

, 588 F.2d 1057, 1061-62 (5 th Cir.

1979). Even if he had standing, we note that Nehme’s ability to acquire citizenship was not

contingent upon his parents obtaining a divorce. Nehme’s father co uld have submitted a

naturalization application on Nehme’s behalf while he was a minor, see 8 U.S.C. § 1433, and Nehme

himself co uld have applied for naturalization thereafter. Therefore, § 1432 was not the only

mechanism by which Nehme could have obtained American citizenship. Second, Nehme complains

that § 1432(a)(3) offends the Privileges and Immunities Clause of Article IV of the Constitution. This

is because in those states t hat provide for judicial separation, an alien could qualify for derivative

naturalization without his parents having to obtain a full divorce, but in states which do not permit

judicial separation, he could not qualify for derivative naturalization u nless his parents obtained a

divorce. This argument is equally meritless because the Privileges and Immunities Clause protects

citizens of one state from abuses by other states, and does not address powers, such as the granting

of citizenship, of the federal government. N evada v. Watkins

, 914 F.2d 1545, 1555 (9 th Cir. 1990).

21 inevitable.” 215 F.3d at 800. 18

C. Child Citizenship Act of 2000

In supplemental briefs filed before argument in this case, Nehme urges us to apply the recently

enacted Child Citizenship Act of 2000 to conclude that he automatically became a naturalized citizen

in 1980. The Child Cit izenship Act repealed § 1432 and amended § 320 of the INA (8 U.S.C. §

1431) to provide:

(a) A child born outside the United States automatically be co mes a citizen of the

United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States,

whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical

custody of the citizen pa rent pursuant to a lawful admission for

permanent residence.

Child Citizenship Act of 2 000, Pub. L. No. 106-395, § 101, 114 Stat. 1631 (2000). Under thi s

amended section, a minor child who is a lawful permanent resident would automatically be naturalized22

when either one of his parents becomes a United States citizen, even if his parents were neither

divorced nor legally separated, as long as the child is in the legal cus t o dy of the citizen parent.

Therefore, if the Child Citizenship Act applies to Nehme, he would have become a naturalized citizen

when his fa t her was naturalized in 1980. However, § 104 of the new law provides that this

amendment “shall take effect 120 days after the date of the enactment of this Act and shall apply to

individuals who satisfy the requirements of section 320

. . . of the Immigration and Nationality Act,

as in effect on such effective date.” The Child Citizenship Act was signed by President Clinton on

October 30, 2000, so the amendments to § 320 of the INA became effective on February 27, 2001.

Nehme contends that the C hild Citizenship Act should be retroactively applied to bestow

citizenship on any person who met the conditions of a mended § 320 of the INA even before the

amendments were passed. However, in L andgraf v. USI Film Products

, 511 U.S. 244, 270-71, 114

S. Ct. 1483, 1499-1500, 128 L. Ed. 2d 229 (1994) the Supreme Court affirmed the general

presumption again st t he retroactivity of laws. Nevertheless, the Court formulated a test for

determining the temporal effect of a federal statute enacted after the events in suit. If “Congress has

expressly prescribed the statute’s proper reach,” then courts must follow that command. I d. at 280,

114 S. Ct. at 1505. If, however, Congress has not expressed its intent concerning whether the statute

applies retroactively, a court must determine whether the law would have an impermissible retroactive

effect. A statute has such an impermissible effect when it impairs the rights a party possessed when

he acted, increases his liabilit y for past conduct, or imposes new duties with respect to transactions

already completed. Id.

It is Nehme’s position that § 104 of the new law contains an express congressional directive

that the amendments to § 320 of the INA be applied retroactively to persons who “have in the past23

or will at some future date satisfy the conditions required, except those already deported as aliens.”

Petitioner’s Supplemental Brief at 6. However, conceding that the directive is not explicit, Nehme

a rgues that the legislative history of the Child Citizenship Act demonstrates that the statute was

intended to have a broad remedial effect to prevent the depor t at ion of children who can now be

recognized as citizens, despite their parents’ failure to timely apply for citizenship under prior law.

We reject Nehme’s argument and conclude that § 104 contains an explicit command that the

amended automatic naturalization provisions only be applied to alien children who satisfy the statute’s

conditions on or after February 27, 2001, the relevant effective date. Two of those conditions are

that the child be under eighteen years of age, and that he be in the lawful custody of the citizen parent.

Because Nehme was thirty-seven years old and was obviously not in the legal custody of his father

on § 104’s effective date, the Child Citizenship Act does not apply to him.

Our conclusion is compelled by several factors. First, as the INS points out, Nehme’s

interpretation of § 104 would be reasonable only if that section provided that the amendments to §

320 applied “to ind ividuals who satisfy the requirements of section 320 of the Immigration and

Nationality Act.” However, Congress expressly limited the applicabilit y o f the amendments to

persons who met the requirements “as in effect on [February 27, 2001].” Interpreting § 104 to apply

to persons who satisfied the requirements at any time in the past or future would thus render this final

clause meaningless. This leads us to a second compelling reason for our determination. An earlier

version of the bill which eventually became the Child Citizenship Act provided that it would become

effective simply “120 days after the date of en act ment of this Act.” S ee Child Citizenship Act of

2000, H.R. 2883, § 5, reprinted in H.R. Rep. No. 106-852 (2000). However, when the bill was taken

up for consideration on the House floor, the second clause had been added. Obviously, Congress19 Moreover, following passage in the House, the sponsor of the bill, Congressman Delahunt,

issued a press re lease describing the situation of a twenty-two year old Brazilian man named Joao

Herbert. Herbert never naturalized and had been ordered deported because of his conviction for a

drug offense. The press release explained:

By granting automatic naturalization to minor children of US citizens, the Delahunt

bill would prevent [the deportati on of certain aliens] from occurring in the future. His

original legislation would also ha ve permit t ed children over 18–such as . . .

Herbert–to avoid deportati on by applying for naturalization under existing law. But

while Delahunt was unable to win agreement to include this provision in the final bill,

t he final text does provide relief from deportation for one particular group o f

noncitizens who are deportable under the 1996 act: those who voted in U.S. elections

in the reasonable (though mistaken) belief that they were citizens at the time.

Press Release, News from Congressman Bill Delahunt (Sept. 19, 2000). We think this demonstrates

the understanding of the legislation’s sponsor that the Child Citizenship Act offered no relief to aliens

in situations such as Nehme’s. We also find t he fo llo wing statement of Congressman Gejdenson

illuminat ing:

[T]here are tragic cases where children of U.S. parents, never naturalized because of

inadvertence, are facing deportati on because of a crime they have committed. While

these children

must face their punishment, to deport them to countries with which

they have no contact, no abilit y to speak the language, and no family known to them

is needlessly cruel. We must be sure that this never happens again

.

146 Cong. Rec. H7778 (daily ed. Sept. 19, 2000) (statement of Cong. Gejdenson) (emphasis added).

24 must have intended that this clause have some effect.

Third, we note that Title II of the Child Citizenship Act is devoted to providing certain relief

to aliens who voted in United States elections under the reasonable belief that they were American

citizens. In contrast to § 104, the effective date provisions contained in Title II explicitly provide that

the amendments related to voting apply to past condu ct and shall be effective as if they had been

enacted in 1996. Had Congress intended that the amendments to § 320 of the INA have the broad

retroactive effect Nehme advo cates, it would have used similar retroactive language in § 104. 1 9

Finally, while we acknowledge that the Court in Landgraf looked to legislative history to ascertain20 Additionally, while some of the new legislation’s provisions may have a remedial effect, the

Supreme Court has stated that “reliance on the vaguely remedial purpose of a statute to defeat the

presumption against retroactivity was rejected” in Landgraf and related cases. Plaut v. Spendthrift

Farm, Inc. , 514 U.S. 211, 237, 115 S. Ct. 1447, 1462, 131 L. Ed. 2d 328 (1995).

21 In a last-ditch effort to convince us to apply the Child Citizenship Act in his case, Nehme

argues in his Supplemental Reply Brief that the INS’s interpretation of § 104 would unconstitutionally

distinguish between two classes of persons: aliens who become eighteen years old prior to § 104’s

effective date, and those who turn eighteen after that date. Those in the first class can be deported

because of their criminal convictions, while those in the se co nd class will never be subject to

deportati on. Nehme argues that this classification is irrational and violates the Equal Protection and

Due Process Clauses. We are not persuaded. The Child Citizenship Act does nothing to render an

alien deportable. It merely provides that minor children who meet certain conditions on its effective

date may be automatically naturalized. Children who are over the age of eighteen on its effective date

may still become American citizens, if they are not otherwise depo rt able, by applying for

naturalization.

Moreover, “[t]he constraints of rationa lit y imposed by the constitutional requirement of

substantive due process and of nondiscrimination exacted by the equal protecti on component of the

due process clause do not limit the federal government’s power to regulate either imm igrati on or

naturalization.” In re Longstaff , 716 F.2d 1439, 1442-43. (5 th Cir. 1983). Indeed, as the Supreme

Court has stated, “[i]n the exercise of its broad power over naturalization and immigration, Congress

25 Congress’s intent

, see 511 U.S. at 262, 114 S. Ct. at 1495, Nehme has p o inted out no legislative

history in the present case indicatin g that the Child Citizenship Act was intended to apply

retroactively to aliens who met the amended requirements at any t ime in the past or future. 20

We think Congress has explicitly stated its intent regarding the temporal effect of the

derivative naturalization amendments. Although Nehme cites the Court’s decision in Bradley v.

School Board of Ric hmond , 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974) for the

proposition that we should apply the law in effect at the time of our decision, we note that the Court

formulated an exception to that rule when “there is statuto ry direction or legislative history to the

contrary.” Id. at 711, 94 S. Ct. at 2016.

Because we have concluded that Congress has explicitly p rescribed the Child Citizenship

Act’s temporal reach, we need not proceed to the second step of the Landgraf analysis. 21regularly makes rules that would be unacceptable if applied to citizens.” M athews v. Diaz

, 426 U.S.

67, 79-80, 96 S. Ct. 1883, 1891, 48 L. Ed. 2d 478 (1976). However, even applying a rat ionality

standard, we think Congress could have rationally determined to make the derivative naturalization

provisions of the Child Citizenship Act applicable only to children not yet eighteen years old on its

effective date. “Naturalizatio n is a privilege, to be given, qualified, or withheld as Congress may

determine, and which the alien may claim as of righ t o nly upo n compliance with the terms which

Congress imposes.” United States v. Macintosh

, 283 U.S. 605, 615, 51 S. Ct. 570, 572, 75 L. Ed.

1302 (1931), overruled on other grounds by Girouard v. U.S.

, 328 U.S. 61, 66 S. Ct. 826, 90 L. Ed.

1084 (1946). From time to time, Congress may decide to limit or expand the number of persons on

which it bestows the privilege of automatic naturalization. There is nothing irrational about

regulating the availability and process of naturalization based on the nation’s changing immigration

capacity, and the INS’s abilit y to process the expanding number of naturalization applications through

the ordinary course. S ee 146 Cong. Rec. H7777 (daily ed. Sept. 19, 2000) (statement of Cong.

Delahunt) (noting that in extending automatic naturalization to alien children adopted by American

citizens, the Child Citizenship Act will relieve the INS “of the need to spend its limit ed resources on

some 16,000 naturalization cases for the past year alone, and that number is expected to increase.”).

26 III.

CONCLUSION

We conclude that the “legal separation” requirement in former 8 U.S.C. § 1432 complies with

the constitutional mandate of uniformity and may be validly applied to Nehme. Nehme’s parents were

never legally separated as we interpret that term. Therefore, he did not qualify for derivative

na t uralization. Furthermore, the Child Citizenship Act of 2000 does not apply to Nehme. He is

consequently an alien who is deportable because of his aggravated felony conviction, and we have

no jurisdiction in this case under 8 U.S.C. § 1252(a)(2)(C). The petition for review is dismissed.

DISMISSED.