The Honorable James G. Carr, Senior United States District Judge for *

the Northern District of Ohio, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HORACE GOZON FRIEND,

Plaintiff-Appellant,

v.

ERIC H. HOLDER, JR., Attorney

General; DEPARTMENT OF

HOMELAND SECURITY; UNITED

STATES CITIZENSHIP AND

IMMIGRATION SERVICES,

Defendants-Appellees.

No. 10-55906

D.C. No.

8:09-cv-00165-

JVS-AN

OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

February 13, 2013—Pasadena, California

Filed April 30, 2013

Before: Marsha S. Berzon and Paul J. Watford, Circuit

Judges, and James G. Carr, Senior District Judge.*

Opinion by Judge Watford
2 FRIEND V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel affirmed the district court’s summary judgment

dismissal of Horace Gozon Friend’s action brought under

8 U.S.C. § 1503(a) seeking a declaratory judgment that he is

a United States citizen, although he was born in the

Philippine Islands, because his father was a U.S. citizen.

In Friend v. Reno, 172 F.3d 638 (9th Cir. 1999), this court

held that Friend’sfather could not transmit citizenship to him

under Revised Statutes § 1993, the law in effect when he was

born in 1931, because his father never resided in the United

States. In the present case, the panel held that the Nationality

Act of 1940, which liberalized the residency requirement, did

not apply retroactively to Friend.

COUNSEL

Douglas D. Janicik (argued), Steptoe & Johnson LLP,

Phoenix, Arizona, for Plaintiff-Appellant.

Craig A. Defoe (argued), Trial Attorney; Tony West,

Assistant Attorney General; J. Max Weintraub, Senior

Litigation Counsel, United States Department of Justice, Civil

Division, for Defendants-Appellees.
FRIEND V. HOLDER 3

OPINION

WATFORD, Circuit Judge:

The plaintiff in this action, Horace Friend, contends that

he is, and has been since birth, a United States citizen. His

long quest to obtain official recognition of that status began

in 1990, when he first applied for a certificate of citizenship.

Mr. Friend claimed to be a citizen under Revised Statutes

§ 1993, the relevant law in effect at the time of his birth in

1931. Section 1993 provided:

All children heretofore born or hereafter born

out of the limits and jurisdiction of the United

States, whose fathers were or may be at the

time of their birth citizens thereof, are

declared to be citizens of the United States;

but the rights of citizenship shall not descend

to children whose fathers never resided in the

United States.

Mr. Friend was born in the Philippine Islands, which were

then a territorial possession of the United States but were

nonetheless deemed “out of the limits and jurisdiction of the

United States” for purposes of § 1993. See Friend v. Reno,

172 F.3d 638, 642 (9th Cir. 1999). Mr. Friend’s father was a

United States citizen at the time of Mr. Friend’s birth, and

had lived his entire life in the Philippines. Mr. Friend’s

mother was a non-citizen national of the United States.

When Mr. Friend first came before this court in 1999, we

rejected his citizenship claim under Revised Statutes § 1993.

Friend, 172 F.3d at 648. We held that although Mr. Friend’s

father was a United States citizen, he could not transmit his
4 FRIEND V. HOLDER

 Section 201(e) of the 1940 Act provided: “The following shall be 1

nationals and citizens of the United States at birth: . . . A person born in

an outlying possession of the United States of parents one of whom is a

citizen of the United States who resided in the United States or one of its

outlying possessions prior to the birth of such person.” Section 201(e)

was repealed in 1952; its current analogue can be found at 8 U.S.C.

§ 1401(e).

citizenship to his son under § 1993 because he had never

resided “in the United States,” as the statute required. We

rejected Mr. Friend’s argument that his father’s residence in

the Philippines should qualify as residence in the United

States. Id. at 645.

In so holding, we noted that if Mr. Friend’s claim had

been governed by the Nationality Act of 1940 (the 1940 Act),

he would indeed be a citizen. Friend, 172 F.3d at 643. The

1940 Act superseded § 1993 and, among other things,

liberalized the applicable residency requirement for

transmitting citizenship to children born abroad by allowing

the citizen parent to have resided in either the United States

or one of its outlying possessions prior to the child’s birth.

See Nationality Act of 1940, Pub. L. No. 76-853, § 201(e),

54 Stat. 1137, 1138. Because the Philippine Islands were

1

considered an outlying possession of the United States until

1946, see Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994),

Mr. Friend’s father would have satisfied § 201(e)’s residency

requirement. Friend, 172 F.3d at 643. But we made clear

that “Rev. Stat. § 1993 is the statute that controls the outcome

of this case,” because the applicable law governing

transmittal of citizenship is ordinarily “the statute that was in

effect at the time of the child’s birth.” Id. at 641 (internal

quotation marks omitted).
FRIEND V. HOLDER 5

Our ruling did not end the matter. Mr. Friend

subsequently filed a second application for a certificate of

citizenship, this time grounding his claim on the 1940 Act,

notwithstanding our earlier conclusion that Revised Statutes

§ 1993 was controlling. When we decided Mr. Friend’s first

appeal, he believed his parents had been married at the time

of his birth. Mr. Friend now claims that newly discovered

evidence, not available earlier, shows that in fact his parents

did not marry until 1958, when he was 27 years old. Mr.

Friend argues that, as a child born out of wedlock, he is

covered by a special provision of the 1940 Act that made

§ 201(e) applicable retroactively to children born out of

wedlock before the Act’s effective date. See Nationality Act

of 1940 § 205, 54 Stat. at 1139–40. After the United States

Citizenship and Immigration Services denied his application

and dismissed his administrative appeal, Mr. Friend filed this

action under 8 U.S.C. § 1503(a) seeking a declaratory

judgment that he is a citizen of the United States. The district

court ruled against Mr. Friend on cross-motions for summary

judgment, granting the government’s motion and denying his.

Like the district court, we find it unnecessary to resolve

whether Mr. Friend was in fact born out of wedlock. For

purposes of this decision we will assume that he was. Even

with that factual hurdle cleared, however, two separate

obstacles bar Mr. Friend’s citizenship claim under the 1940

Act.

The first obstacle relates to the retroactivity issue. The

1940 Act was obviously not the law in effect at the time of

Mr. Friend’s birth in 1931, so he must establish that the Act

applies retroactively to individuals born before its effective

date. Congress passed the 1940 Act in view of the

background rule that “a statute cannot be construed to operate
6 FRIEND V. HOLDER

retrospectively unless the legislative intention to that effect

unequivocally appears.” Miller v. United States, 294 U.S.

435, 439 (1935).

We do not think the provisions of the 1940 Act on which

Mr. Friend relies reflect a legislative intention that they

should apply retroactively. Section 201(e) of the Act—the

provision that liberalized the residency requirement in a

manner favorable to Mr. Friend—does not itself say anything

about applying retroactively to individuals born before the

1940 Act’s effective date. See supra note 1. But Mr. Friend

contends that § 205—the provision applicable to children

born out of wedlock, which incorporates § 201(e)—contains

language making § 205 retroactive. We quote below the first

of § 205’s two paragraphs (the only one that could potentially

apply here), and italicize the language on which Mr. Friend

relies:

The provisions of section 201, subsections (c),

(d), (e), and (g), and section 204, subsections

(a) and (b), hereof apply, as of the date of

birth, to a child born out of wedlock, provided

the paternity is established during minority,

by legitimation, or adjudication of a

competent court.

Nationality Act of 1940 § 205, 54 Stat. at 1139 (emphasis

added).

We do not believe the italicized phrase can be construed

as extending the statute’s reach retroactively. That phrase

instead describes the point at which one’s citizenship status,

if successfully established, takes effect. The statute is

retroactive in that sense—it confers citizenship as of the date
FRIEND V. HOLDER 7

of the child’s birth, even if the child’s paternity is not

established until years later. See Tuan Anh Nguyen v. INS,

533 U.S. 53, 72 (2001) (interpreting successor statute,

8 U.S.C. § 1409(a)); Miller v. Albright, 523 U.S. 420, 431

(1998) (opinion of Stevens, J.) (same). The italicized phrase

does not speak to whether the statute applies to individuals

born before the 1940 Act’s effective date.

If there were any doubt on that score, it is dispelled by the

language of the second paragraph of § 205, which Congress

did make applicable to individuals born before the Act’s

effective date. In doing so, however, Congress used language

(italicized below) not found in the first paragraph:

In the absence of such legitimation or

adjudication, the child, whether born before

or after the effective date of this Act, if the

mother had the nationality of the United

States at the time of the child’s birth, and had

previously resided in the United States or one

of its outlying possessions, shall be held to

have acquired at birth her nationality status.

Nationality Act of 1940 § 205, 54 Stat. at 1140 (emphasis

added). Had Congress intended to make the first paragraph

of § 205 retroactive, it would have included the same

language in that paragraph as well. See Russello v. United

States, 464 U.S. 16, 23 (1983).

A second obstacle bars Mr. Friend’s claim, even if we

were to construe the first paragraph of § 205 as applying

retroactively. The first paragraph of § 205 requires, as a

condition precedent to acquiring citizenship, that the child’s

paternity have been established by legitimation or
8 FRIEND V. HOLDER

 Mr. Friend asserts that the former Immigration and Naturalization 2

Service (INS) did not construe § 205’s legitimation requirement as

applying retroactively. But the INS interpretation letter he cites merely

states that the 1940 Act’s age limit on legitimation does not apply to those

seeking citizenship under earlier acts, which had no such age limit. INS

Interp. Ltr. 309.1, 2001 WL 1333861, at *2 & n.13 (Oct. 2001); Matter of

L–, 3 I. & N. Dec. 225, 225–26 (BIA 1948).

adjudication during minority, which at the time relevant here

was up to age 21. Ablang v. Reno, 52 F.3d 801, 803 (9th Cir.

1995);see Nationality Act of 1940 § 101(g), 54 Stat. at 1137.

(That was a change from prior law; under Revised Statutes

§ 1993, the State Department had permitted children born

abroad and out of wedlock to acquire citizenship through

their citizen father so long as the father legitimated the child,

even after the age of majority. See Miller, 523 U.S. at 462

(Ginsburg, J., dissenting).) Mr. Friend concedes that he

cannot satisfy this condition. He contends that his paternity

was established by legitimation when his parents married in

1958, but that occurred when he was 27 years old, well after

the period of minority ended. Mr. Friend cannot claim the

benefit of § 205’s retroactive application—and with it the

assistance of § 201(e)’s liberalized residency requirement—

but at the same time assert that he is exempt from complying

with § 205’s legitimation requirement.2

We need not resolve Mr. Friend’s alternative argument

that § 205 violates equal protection principles. Mr. Friend

contends that granting mothers the benefit of § 205’s

retroactive application in the second paragraph of the statute,

but denying that benefit to fathers in the first paragraph,

results in unconstitutional gender discrimination. Even if we

were to agree with that argument, the remedy would be to

make the first paragraph of § 205 retroactive. See Wauchope

v. U.S. Dep’t of State, 985 F.2d 1407, 1418 (9th Cir. 1993).
FRIEND V. HOLDER 9

That would still leave Mr. Friend unable to meet the first

paragraph’s requirement that his paternity have been

established by legitimation or adjudication during minority.

That requirement, although imposed only on fathers, is

constitutional. See Tuan Anh Nguyen, 533 U.S. at 62, 70;

Ablang, 52 F.3d at 805–06. Thus, it would survive even if

Mr. Friend prevailed on his equal protection argument

regarding the gender discriminatory nature of § 205’s

retroactive effect.

AFFIRMED.