[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 16-14726 & 16-14972

Non-Argument Calendar

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Agency No. A039-072-266

HOWARD PAUL LEVY, 

 Petitioner,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

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Petitions for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 21, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit 

Judges.

PER CURIAM: 

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Howard Paul Levy petitions for review of the Board of Immigration 

Appeals’ order affirming his removal from the United States. Levy is a native and 

citizen of Jamaica. His father and mother were unmarried but his father

acknowledged paternity at birth. Levy’s father became a lawful permanent 

resident of the United States in 1978, obtained full custody of Levy in 1984, and 

became a naturalized citizen in 1985. Levy became a lawful permanent resident of 

the United States in 1985 and resided with his father. Levy’s mother never resided

nor acquired immigration status in the United States and died in 2013. 

After a jury convicted Levy for conspiracy to commit mail fraud, 18 U.S.C. 

§ 1349, the Department of Homeland Security began proceedings to remove him 

from the country. The Immigration Judge sustained the removal charge. Levy 

moved to terminate the proceedings, contending that he is a United States citizen

by way of his father’s naturalization. The IJ denied his motion and Levy appealed 

to the BIA, which adopted and affirmed the IJ’s ruling and dismissed his appeal. 

Levy contends that the derivative naturalization statute at issue, former 

Immigration and Nationality Act § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1985),

1

violates the equal protection component of the Fifth Amendment because it 

discriminates based on gender. We have jurisdiction to consider and review de

 1 When an individual seeks derivative citizenship from naturalization, the BIA applies the 

law in effect when the last material condition was met. In Re Rodriguez-Tejedor, 23 I. & N. 

Dec. 153, 163 (BIA 2001). In this case, the BIA applied the law in effect in 1985 — when 

Levy’s father was naturalized. 

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novo constitutional claims and questions of law related to the INA. 8 U.S.C. 

§ 1252(a)(2)(D); see Cole v. U.S. Att’y Gen., 712 F.3d 517, 523 (11th Cir. 2013). 

Former INA § 321(a) provides: 

(a) 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; 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.

INA § 321(a) (1985). Levy could derive citizenship only under the first clause of 

§ 321(a)(3), which confers citizenship based on “[t]he naturalization of the parent 

having legal custody of the child when there has been a legal separation of the 

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parents.”2 The IJ and BIA determined that Levy did not derive citizenship under 

that provision because his parents never married and, as a result, never “legally 

separat[ed].” Id. § 321(a)(3). Levy argues that the marital status criterion 

constitutes gender discrimination based on a “caregiver/breadwinner dichotomy.” 

According to him, if his mother instead of his father had been a United States

citizen, he would be a citizen. 

Levy misreads the statute. For a legitimated child such as Levy, the 

pertinent paragraph refers only to a “parent having legal custody of the child” and 

does not distinguish between mothers and fathers. Id. It does not discriminate 

based on gender because it favors neither mothers nor fathers. Had the situation 

been reversed — if Levy’s mother had become a lawful permanent resident, 

obtained citizenship, and raised him in the United States while his father remained 

in Jamaica — Levy still would not have obtained citizenship based on her 

naturalization because his parents were not “legally separat[ed].” As a result, the 

statute does not implicate, much less violate, the equal protection component of the 

Fifth Amendment based on gender discrimination. 

 2 Section 321(a)(1) does not apply because Levy’s mother was never naturalized. 

Section 321(a)(2) does not apply because it is conditioned on the non-naturalizing parent dying 

before the child turns eighteen, see INA § 321(a)(4), and Levy’s mother died after he turned 

eighteen. And the second clause of § 321(a)(3) does not apply because Levy’s mother was never 

naturalized and his “paternity [was] established by legitimation” when his father acknowledged 

paternity. See Matter of Cross, 26 I&N 485, 486 (BIA 2015) (noting that under the Jamaican 

Status of Children Act, the paternity of a child born out of wedlock is legitimated if the father 

acknowledges paternity). 

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To the extent Levy meant to argue that § 321(a)(3) violates equal protection 

because it discriminates based on legitimacy, he has abandoned that argument. 

Levy’s initial brief focuses solely on gender bias and mentions legitimacy only in 

passing (if at all) and without citations to authority. See Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an 

appellant abandons a claim when he either makes only passing references to it or 

raises it in a perfunctory manner without supporting arguments and authority.”). 

The fact that Levy discussed a legitimacy based challenge in his reply brief does 

not make up for that deficiency. See United States v. Evans, 473 F.3d 1115, 1120 

(11th Cir. 2006) (“[A]rguments raised for the first time in a reply brief are not 

properly before a reviewing court.”) (quotation marks omitted). As a result, we 

decline to consider whether former INA § 321(a)(3) impermissibly discriminates 

based on legitimacy.

PETITION DENIED. 3

 3 Levy moved to file a supplemental brief on potential remedies following the Supreme 

Court’s decision in Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678 (2017). Because 

we affirm the BIA’s final order, Levy’s motion is DENIED AS MOOT. 

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