Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be

*

published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60142

Summary Calendar

JORGE MARQUEZ-MORALES,

Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A044-762-001

Before JOLLY, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Jorge Marquez-Morales, a native and citizen of Mexico, seeks review of the

order of the Board of Immigration Appeals (BIA) dismissing his appeal from an

Immigration Judge’s decision finding him removable pursuant to 8 U.S.C.

§§ 1182(a)(9)(A)(ii) and 1182(a)(6)(A)(i). He also seeks review of the BIA’s denial

of his motion to reconsider the order affirming the IJ’s decision.

United States Court of Appeals

Fifth Circuit

F I L E D

May 5, 2010

Lyle W. Cayce

Clerk

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I. 

Marquez-Morales was born in Mexico to his mother, Josefina Morales

Andazola, a Mexican citizen. No father was identified on his birth certificate.

In 1994, an Oklahoma state court awarded his father, Jesus Jose Marquez,

permanent and exclusive custody of Marquez-Morales. Marquez was

naturalized in March, 1998. In June 2008, the Department of Homeland

Security charged Marquez-Morales as subject to removal pursuant to 8 U.S.C.

§ 1182(a)(9)(A)(ii). The charges alleged that Marquez-Morales had been

previously removed from the United States under an outstanding removal order

in December 2003, and that he had been convicted in 2005 of the offense of

reentry of a deported alien previously convicted of an aggravated felony. DHS

also charged him as subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an

alien present in the United States without being lawfully admitted or paroled,

or who arrived in the United States at a time or place other than that designated

by the United States Attorney General. 

Before the IJ, Marquez-Morales denied both charges on the grounds that

he was entitled to derivative citizenship under former section 321(a)(3) of the

Immigration and Nationality Act, 8 U.S.C. § 1432(a)(3) (repealed 2000), which

provided citizenship for a child born outside the United States through, inter

alia, the naturalization of the parent having legal custody of the child when

there had been a legal separation of the parents, or the naturalization of the

mother if the child was born out of wedlock and the paternity was not

established by legitimation. The IJ determined that he did not meet the

statutory requirements of section 321(a)(3) and rejected his alternative

argument that former section 321(a)(3) was unconstitutional. The BIA affirmed

that decision.

On appeal, Marquez-Morales argues that he is entitled to derivative

citizenship because the Oklahoma court’s custody order should be considered a

“legal separation” for the purposes of former section 321(a)(3) even though his

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parents were never married. Alternatively, he argues that former section

321(a)(3) was unconstitutional because it establishes “two different standards

for men and women” because an unmarried mother can confer derivative

citizenship on her child but an unmarried father cannot. 

II.

This court has limited jurisdiction to consider challenges to removal orders

based on the commission of an aggravated felony. The REAL ID Act amended

8 U.S.C. § 1252(a)(2)(C) to preclude judicial review of any removal order based,

inter alia, on an alien’s commission of an aggravated felony. 8 U.S.C.

1252(a)(2)(C); Hernandez-Castillo v. Moore, 436 F.3d 516, 518-19 (5th Cir.

2006). The Act provides, however, that none of its provisions “shall be construed

as precluding review of constitutional claims or questions of law raised upon a

petition for review.” 8 U.S.C. § 1252(a)(2)(D). We may review MarquezMorales’s “claim to be a national of the United States, and decide such claim if,

as here, the pleadings and affidavits reflect that no genuine issue of material

fact about the petitioner’s nationality is presented.” Marquez-Marquez v.

Gonzales, 455 F.3d 548, 554 (citing 8 U.S.C. § 1252(b)(5)). As the claim presents

a question of law, our review is de novo. Id. 

We first consider Marquez-Morales’s argument that he is entitled to

derivative citizenship under former section 321(a)(3). Because Marquez-Morales

was not born in the United States, naturalization is his “sole source for a claim

of citizenship.” Marquez-Marquez, 455 F.3d at 554. He bears the burden of

proving that he qualifies for naturalization, and this court resolves all doubts on

the matter in favor of the United States. See id. Because he turned eighteen in

1997, the provisions of former section 321(a) apply to his claim. Those provisions

were repealed by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114

Stat. 1631 (2000), but as Marquez-Morales acknowledges, the Child Citizenship

Act is not retroactive. Thus, his claim is governed by Section 321(a). See Nehme

v. INS, 252 F.3d 415, at 430-32 (5th Cir. 2001). 

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Former section 321(a) of he Immigration and Nationality Act provided that

“a child born outside the United States of alien parents . . . becomes a citizen of

the United States” upon “the naturalization of the parent having legal custody

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

naturalization takes place while such child is under the age of 18 years; and . . .

such child is residing in the United States pursuant to lawful admission for

permanent residence at the time of the naturalization of the parent.” MarquezMorales claims that, despite the fact that his parents never married and thus

could not be legally separated, he is entitled to citizenship because his father

obtained “legal custody” of him when he was under age eighteen. He contends

that he is not required to demonstrate that his parents were legally separated

because Congress’s intent in drafting Section 321(a) was the protection of

parental rights by ensuring hat only those alien children “whose real interest[s]’

were located in America with their custodial parent” would be automatically

naturalized. 

Marquez-Morales’s argument is foreclosed by this court’s decision in

Nehme, which held that a child born overseas to alien parents was not entitled

to naturalization when his father was naturalized but his parents never

obtained a “legal separation” or divorce under Pennsylvania law. 252 F.3d at

418-20. We also clarified that “legal separation” meant a “judicial separation,”

id. at 426, but he has presented no evidence that his parents were ever married

or judicially separated. Other circuits have likewise concluded that former

section 321(a)(3) requires a legal separation of married parents before a single

parent can confer automatic citizenship on an alien child. See Barthelemy v.

Ashcroft, 329 F.3d 1062, 1065, 1067-68 (9th Cir. 2003) (finding that because

alien’s parents never married and thus could not legally separate, the alien could

not establish citizenship under former section 321(a)(3)); Wedderburn v. INS,

215 F.3d 795, 799-800 (7th Cir. 2000) (concluding that BIA acted within its

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We also note that Marquez-Morales has not pursued his arguments made before the 1

BIA that his parents’ relationship constituted a “common law” marriage under Oklahoma law

or that he qualified for derivative citizenship under 8 U.S.C. § 1409. These arguments are

therefore waived. Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir.

2004).

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authority in construing “legal separation” to mean an alteration in marital

status). Accordingly, we find his claim to be without merit.1

We also reject Marquez-Morales’s argument that former section 321(a)(3)

violates the Equal Protection Clause by establishing “two different standards

for men and women.” This court has recognized that “[a]n alien has no

constitutional right to citizenship which is a privilege conferred as a matter of

grace by Congress under Article I, Section 8 of the United States constitution

relative to the power of Congress ‘to establish a uniform rule of Naturalization.’”

Villanueva-Jurado v. INS, 482 F.2d 886, 887 (5th Cir. 1973) (citing Rogers v.

Bellei, 401 U.S. 815, 840 (1971)). Congress has a “completely free hand in

defining citizenship as it relates to persons born abroad.” Id. (citation and

internal quotation marks omitted). Challenges to INA classifications are

typically subject to rational basis review, De Fuentes v. Gonzales, 462 F.3d 498,

503 (5th Cir. 2006), but gender based classifications receive review under a

heightened standard. In Nguyen v. INS, 533 U.S. 53 (2001), the Supreme Court

stated that gender-based classifications in the INA must serve “important

governmental objectives . . and the discriminatory means employed” must be

“substantially related to the achievements of these objectives.” Id. at 60-61

(citation omitted). 

We find that Nguyen’s heightened scrutiny is not triggered here where

Marquez-Morales has not argued a true “gender-based” classification. MarquezMorales bases his equal protection claim on language from former section

321(a)(3), which provides that an alien child born outside the United States

becomes a citizen when, among other factors, “the naturalization of the parent

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

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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.”

§ 321(a)(3) (emphasis added). He argues that gender-discrimination is present

because “only the [unmarried] mother’s naturalization” could confer derivative

citizenship, whereas his father’s naturalization could not confer the same. This

argument misses the mark. Marquez-Morales’s father established paternity, so

the provision regarding mothers of children born out of wedlock where paternity

is not established is inapplicable. Thus, his mother was similarly powerless to

confer citizenship upon him through her naturalization alone. As such, where

mothers and fathers of children whose paternity is established are treated

similarly, Marquez-Morales’s claim does not implicate equal protection. 

Moreover, even assuming arguendo that he had shown a gender-based

classification, we would nevertheless conclude that former section 321(a)(3) is

not unconstitutional. In Nguyen, the Supreme Court rejected a constitutional

challenge to 8 U.S.C. § 1409(a), which prescribe how persons born abroad to one

United States-citizen parent and one non-citizen parent acquired citizenship for

the child when the parents were not married. 533 U.S. at 62-70. Although the

statute imposed requirements on the children of a citizen father which were not

imposed when the citizen parent was the mother, the court found that the

gender-based classification met heightened scrutiny as the distinction was

substantially related to serving the important governmental interests of

“assuring that a biological parent-child relationship exists” and “ensuring that

the child and the citizen parent have some demonstrated opportunity or

potential to develop” more than a mere legally-recognized relationship. Id. at

62. As there, we find that Congress is entitled to prescribe rules for citizenship

that reflect differences in the way unmarried parents establish a biological tie

to the alien child. 

Finally, we note that two other circuits have rejected similar challenges

to former section 321(a)(3). In Barthelemy, the Ninth Circuit assumed without

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deciding that section 321(a)(3) entitled the alien to “the higher standard of

scrutiny,” but held that the alien’s equal protection claim failed where he

admitted his father had legitimated him. 329 F.3d at 1066-68. In Wedderburn,

the Seventh Circuit concluded that section 321(a)(3)’s classification was not a

sex-based classification at all, but rather a classification based on whether or not

the child had been legitimated. 215 F.3d at 801-02. Accordingly, we deny his

petition for review.

PETITION DENIED.

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