[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10300

Non-Argument Calendar

____________________

KELVIN OSVALDO SILVA, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A041-421-501

____________________

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2 Opinion of the Court 21-10580

Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Petitioner Kelvin Osvaldo Silva petitions this Court to review the BIA’s order affirming the denial of his application to terminate removal proceedings. Silva argues in his petition that the 

former version of 8 U.S.C. § 1432(a)(3) applicable to his case, which 

confers automatic citizenship on children born outside the United 

States to alien parents who meet certain qualifications, discriminates based on gender and race in violation of the Fifth Amendment. As a remedy for the alleged discrimination, Silva argues he 

is entitled to United States citizenship and the termination of his 

removal proceedings. Silva’s argument is foreclosed by this Court’s 

recent decision in Lodge v. United States Attorney General, 92 F.4th 

1298 (11th Cir. 2024), denying a factually indistinguishable petition. 

Accordingly, we deny Silva’s petition pursuant to Lodge. 

BACKGROUND

Silva, a native and citizen of the Dominican Republic, entered the United States in 1988 as a lawful permanent resident after 

his father obtained U.S. citizenship.1 Silva was 11 years old at the 

time of his entry, and he lived as a lawful permanent resident in the 

United States until 2011, when he was charged in the Western District of North Carolina with four felony drug offenses. He pled 

1 The record indicates that Silva’s father died in 1993, when Silva was 17 years 

old. 

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guilty to conspiracy to possess with intent to distribute marijuana 

in violation of 21 U.S.C. § 841 (b)(1)(A) and conspiracy to possess 

with intent to distribute cocaine in violation of 21 U.S.C. 

§ 841(b)(1)(B) in exchange for dismissal of the remaining two 

counts, and the district court sentenced him to 127 months in 

prison in 2013. Silva was released from prison in 2019, after having 

his sentence reduced to 120 months. 

Following his release from prison, the Department of 

Homeland Security (“DHS”) served Silva with a Notice to Appear 

(“NTA”). The NTA stated that Silva was not a citizen of the United 

States, and it charged him with being removable under 8 U.S.C. 

§ 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony as defined in the Immigration and Nationality Act 

(“INA”) and an offense relating to illicit trafficking in a controlled 

substance as described in the Controlled Substances Act. 

Silva had a hearing before an IJ in August 2019, during which 

he asserted a claim of citizenship and contested his removability.

Silva admitted during the hearing that he had been convicted of 

felony drug offenses in 2013, while present in the United States as 

a lawful permanent resident. But he claimed that, prior to committing the offenses, he had derived U.S. citizenship through his father 

under 8 U.S.C. § 1432(a), the relevant version of which states that a 

child born outside the United States to alien parents becomes a citizen of the United States upon fulfillment of the following conditions: 

(1) The naturalization of both parents; or

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(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[.] 

8 U.S.C. § 1432(a) (1988) (repealed).2

 Silva claimed he qualified for 

citizenship under the third paragraph, § 1432(a)(3), and based on 

that claim he moved to terminate the removal proceedings against 

him. 

The IJ denied Silva’s motion to terminate, sustained the removal charge, and ordered Silva removed to the Dominican Republic. The IJ found that Silva failed to show he satisfied the requirements of derivative citizenship under § 1432(a)(3) because, although he submitted evidence showing that his father naturalized 

in 1988, he did not submit evidence to demonstrate that his parents 

ever legally married or separated or that his mother ever naturalized. 

2 The statute also requires that naturalization take place while the child is 

under 18 years old, and that the child be in the United States as a lawful permanent resident at the time of the naturalization of the parent last naturalized 

under clause (1) or the parent naturalized under clause (2) or (3). See 8 U.S.C. 

§ 1432(a)(4) and (5) (1988). However, those requirements are not at issue here. 

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Silva appealed to the BIA, arguing that his parents should be 

considered to have legally married and separated under Dominican 

Republic law and custom, and asserting a Fifth Amendment equal 

protection challenge to § 1432(a)(3) based on its alleged disparate 

treatment of the children of unwed naturalized mothers and the 

children of similarly situated unwed fathers. The BIA rejected 

Silva’s argument and affirmed the IJ’s decision. Specifically, the BIA 

agreed with the IJ that Silva did not derive citizenship from his father under the first clause of § 1432(a)(3) because his parents never 

married—and thus never legally separated—within the meaning of 

that provision. As to Silva’s equal protection claim challenging the 

second clause of § 1432(a)(3), the BIA stated that it did not have 

authority to adjudicate the constitutional challenge. Accordingly, 

the BIA dismissed Silva’s appeal.

Silva filed a petition in this Court for judicial review of the 

BIA’s decision, and he asked that the petition be transferred to the 

district court to resolve purported issues of fact as to whether 8 

U.S.C. § 1432(a)(3) had the discriminatory purpose of limiting the 

number of Black people who may derive U.S. citizenship under that 

statute or a racially disparate impact, in violation of the Fifth 

Amendment. See CM/ECF for 11th Cir., Case No. 20-13916, “Silva 

I” at Doc. 11. While that request was pending, the Government 

filed a motion to supplement the record and remand the case to the 

BIA so it could consider inadvertently omitted documents and issue 

a decision on a complete record, which this Court granted. Id. at 

Docs. 32, 33. On remand, the BIA again dismissed Silva’s appeal, 

agreeing with the IJ based on the supplemented record that Silva 

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did not derive citizenship from his father because his parents did 

not legally marry or separate within the meaning of § 1432(a)(3), 

and reiterating that it did not have authority to adjudicate Silva’s 

constitutional challenges to § 1432(a)(3).

Silva subsequently filed the present petition for judicial review. In support of the petition, Silva argues that § 1432(a)(3) unconstitutionally discriminates based on sex because it confers automatic citizenship on the child of an unmarried mother but not on 

the child of a similarly situated father. According to Silva, the sexbased classification in § 1432(a)(3) does not serve any important 

governmental objective but is instead based on outdated gender 

stereotypes and the “untenable” assumption that an “unwed 

mother is the natural and sole guardian of a non-marital child.” 

Silva also argues that § 1432(a)(3) discriminates based on race because it disparately impacts immigrant children in majority Black 

countries where non-marital unions are the dominant form of familial arrangement. Silva argues that this Court should remedy the 

constitutional defects by holding that he derived citizenship 

through his father under § 1432(a)(3). 

Silva’s petition was held in abeyance pending oral argument 

and a decision in Lodge v. United States Attorney General, 92 F.4th 1298 

(11th Cir. 2024), a petition for review of a BIA decision in which the 

petitioner asserted the same constitutional arguments underlying 

Silva’s petition. A panel of this Court recently issued a decision 

denying Lodge’s petition. See id. Because the decision in Lodge appeared to require the denial of Silva’s petition, the Court directed 

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him to show cause why his petition should not be denied pursuant 

to Lodge. Silva has responded to the show cause order , but his response fails to materially distinguish his case from Lodge. Accordingly, we deny Silva’s appeal pursuant to Lodge.

DISCUSSION

I. Standards of Review

This Court generally reviews constitutional challenges, such 

as the challenge asserted by Silva in his petition, de novo. Poveda v.

U.S. Att’y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012). The Court likewise reviews jurisdictional issues, including the threshold question 

of Article III standing, de novo. Taylor v. Polhill, 964 F.3d 975, 980 

(11th Cir. 2020). 

II. Standing

The parties have extensively briefed the question whether 

Silva has Article III standing to assert the constitutional challenges 

at issue in his petition. To establish standing, a litigant must prove 

he (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct, and (3) that is likely to be redressed by a favorable judicial decision. Id. The Lodge decision resolves the Article III 

standing issues raised by the briefing in this case. As the Court explained in Lodge, a petitioner’s “risk of removal is sufficient to create 

an actual or imminent injury under Article III.” Lodge, 92 F.4th at 

1301 (quotation marks omitted). Moreover, the injury is fairly 

traceable to the “allegedly unlawful denial of [the petitioner’s] citizenship claim, . . . a cause of [the] removal.” Id. Finally, a favorable 

decision—that is, a decision declaring that the petitioner is a U.S. 

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citizen—would redress the injury because it would require cancellation of the order of removal and termination of the removal proceedings. Id. at 1301–02. 

We note that if Silva’s parents had legally married and separated, as he argued below, he would not have standing to challenge 

the constitutionality of the second clause of § 1432(a)(3) because 

he would derive citizenship from the first clause of that provision. 

Although Silva abandoned his legal marriage and separation argument by failing to discuss it in his petition, we briefly address the 

issue given its implications for standing—and thus jurisdiction—in 

this case. In short, the record supports the BIA’s determination that 

there was no legal separation here, because Silva did not produce 

any documents showing that his parents ever legally married, and 

Silva’s mother did not describe her relationship with his father as a 

marriage or civil union and she asserted that their relationship 

ended prior to Silva’s birth. Because the record indicates that Silva 

was born to unmarried parents, only the second clause of former 

§ 1432(a)(3) could apply to him. Thus, per Lodge, Silva has Article 

III standing to assert the constitutional arguments raised in his petition. 

III. Denial of Silva’s Petition Pursuant to Lodge

Silva challenges the constitutionality of the version of 8 

U.S.C. § 1432(a)(3) that was in effect when his father naturalized in 

1988. See Levy v. U.S. Att’y Gen., 882 F.3d 1364, 1366 n.1 (11th Cir. 

2018) (explaining that when an individual seeks to derive citizenship from naturalization, the BIA applies the law in effect when the 

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last material condition is met, such as the date of the citizen parent’s naturalization). As discussed, the BIA determined that Silva 

does not satisfy former § 1432(a)(3) because he was born out of 

wedlock, his paternity was established, and he did not show that 

his mother naturalized. Silva now concedes the BIA was correct 

on this point, but he argues he nevertheless is entitled to citizenship 

under that statute as a remedy for its alleged constitutional defects. 

Faced with an identical petition in Lodge, this Court held that 

the petition must be denied because the allegedly discriminatory 

sex-based classification in the second clause of § 1432(a)(3) did not 

affect the denial of citizenship. See Lodge, 92 F.4th at 1303. Again, 

the challenged language in § 1432(a)(3) grants citizenship to a child 

born outside the United States to alien parents upon “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[.]” 

8 U.S.C. § 1432(a)(3) (1988). Like Silva, Lodge argued this language 

“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 mother.” Lodge, 92 F.4th at 

1302 (alteration adopted and quotation marks omitted).3

 And also 

like Silva, Lodge argued the appropriate cure for the constitutional 

3 Lodge argued further, as Silva argues, that the sex-based classification was 

unconstitutional for the additional reason that it was “enacted with the purpose, and had the disparate effect, of limiting the number of black children 

who could derive citizenship.” Lodge, 92 F.4th at 1302. 

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defect was to “allow fathers to bestow derivative citizenship on 

their nonmarital children under former [§] 1432(a)(3) the same way 

mothers could” and, thus, to grant him citizenship under § 

1432(a)(3). Id. at 1303. 

This Court held that Lodge was not entitled to the remedy 

he sought in his petition because “he would not have become a citizen even under a sex-neutral version” of the statute.4

 Id. As the 

Court explained:

A sex-neutral version of the second clause of [§] 

1432(a)(3) would have conferred citizenship upon 

“the naturalization of one parent if the child was 

born out of wedlock and the paternity or maternity of 

the other parent has not been established.” Or it would 

have conferred citizenship upon “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 or the naturalization of the father if the 

child was born out of wedlock and the maternity of the 

child has not been established.” Either way, because 

Lodge’s maternity has been established, he would not 

4 The Court in Lodge noted that § 1432(a)(3) “treats sons and daughters alike” 

and so could not be said to discriminate against Lodge based on his sex, but 

rather arguably discriminated against Lodge’s father. See Lodge, 94 F.4th at 

1302 (quotation marks omitted). It assumed without deciding that Lodge had 

third-party standing to assert such a claim, and we likewise assume without 

deciding Silva has third-party standing to assert an equal protection claim on 

behalf of his father. See id. at 1303. 

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have derived citizenship from his father under a version of the second clause that treated mothers and fathers the same.

Id. (quotation marks omitted and emphasis in original).

The same is true here. It is undisputed that Silva’s maternity 

has been established, just as Lodge’s was. Thus, Silva “would not 

have derived citizenship from his father under a version of the second clause [of § 1432(a)(3)] that treated mothers and fathers the 

same” any more than Lodge would have. Id. That being so, the IJ’s 

rejection of Silva’s citizenship defense “had nothing to do with the 

sex classification.” See id. In short, Silva’s constitutional claims “fail 

at the outset because we cannot grant [Silva] the remedy he seeks 

no matter what we decide about the constitutionality of the sex 

classification.” See id. (quotation marks omitted). 

As mentioned above, we gave Silva an opportunity to distinguish his case from Lodge when we lifted the abeyance order and 

ordered him to show cause why his petition should not be denied 

pursuant to Lodge. Silva responded to the show-cause order, but his 

response does not distinguish his case in any meaningful way. Indeed, the response is for the most part a restatement of the same 

arguments asserted in Silva’s initial petition. Given the intervening 

decision in Lodge, these arguments are unsuccessful. 

To the extent Silva attempts to draw any real distinctions between his case and Lodge’s, his efforts fail. Silva argues his case is 

somehow different from Lodge’s because of his race discrimination claim, but Lodge asserted an identical claim. See Lodge, 92 F.4th 

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at 1302 (“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.”). 

Silva also argues he would be a U.S. citizen under the sexneutral version of § 1432(a)(3) hypothesized in Lodge, where a child 

can derive citizenship from his father if maternity is not established, because his mother abandoned him after his birth. But 

again, the same was true for Lodge. See id. at 1300 (“Lodge’s 

mother abandoned him[.]”). Despite the abandonment, the Court 

held Lodge could not prevail under a sex-neutral version of 

§ 1432(a)(3) because his maternity was established. See id. at 1303 

(“[B]ecause Lodge’s maternity has been established, he would not 

have derived citizenship from his father under a version of the second clause that treated mothers and fathers the same.” (emphasis 

in original)). Similarly, it is undisputed here that Silva’s maternity 

is established. 

The only distinction we see between this case and Lodge is 

that Lodge’s mother apparently never naturalized, whereas Silva’s 

mother eventually naturalized after Silva turned 18, when he was 

too old to derive citizenship from her.5 This factual difference has 

5 Again, former § 1432(a) required that parental naturalization take place 

“while such child is under the age of eighteen years.” 8 U.S.C. § 1432(a)(4) 

(1988). 

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no bearing on Silva’s claim seeking to derive citizenship from his 

father, nor does it otherwise impact his derivative citizenship status, 

given Silva’s age at the time his mother naturalized. As such, and 

because this case is materially indistinguishable from Lodge, we 

must deny Silva’s petition. 

CONCLUSION

For the reasons stated above, Silva’s petition is DENIED. 

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