In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-1728

RUBEN LOPEZ RAMOS,

Petitioner,

v.

WILLIAM P. BARR, Attorney General 

of the United States,

Respondent.

____________________

Petition for Review of an Order of the 

Board of Immigration Appeals.

No. A039-091-760

____________________

ARGUED SEPTEMBER 25, 2019 — DECIDED NOVEMBER 7, 2019

____________________

Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.

RIPPLE, Circuit Judge. Ruben Lopez Ramos brings this petition to review the removal decision of the Board of Immigration Appeals (“BIA”). He claims that the statutory 

scheme set forth in the since-amended 8 U.S.C. § 1401 (1968) 

(amended 1986) and §§ 1431–32 (1968) (amended 2000) violates the Equal Protection guarantee of the Fifth Amendment’s Due Process Clause because those provisions prevent 
2 No. 19-1728

him from deriving citizenship through his United States citizen mother. The Immigration Judge (“IJ”), noting that the 

immigration court lacks jurisdiction over constitutional 

questions, limited her analysis to the provisions of the Immigration and Nationality Act (“INA”) and denied 

Mr. Lopez’s motion to terminate removal proceedings. The 

BIA affirmed without opinion the decision of the IJ.1

Mr. Lopez timely seeks review of the removal decision here.2

Because the statutory scheme has a rational basis, there is no 

equal protection violation. Consequently, we deny the petition for review. 

I.

BACKGROUND

Mr. Lopez was born in Mexico on November 19, 1974, to 

Bertha Ramos de Lopez and Jaime Lopez Gonzalez. Ms. Ramos de Lopez, although born in Mexico, had acquired Unit-

 

1 The jurisdiction of the Board of Immigration Appeals (“BIA”) is premised on 8 U.S.C. § 1229a.

2 Our jurisdiction is premised on 8 U.S.C. § 1252(a)(2)(D) and (b)(5)(A). 

The Commissioner contends that this court is barred from review by 

§ 1252(a)(2)(C), which precludes review of final orders of removal 

against aliens removable by reason of having committed a criminal offense covered in 8 U.S.C. § 1182(a)(2) or § 1227(a)(2)(A)(iii), (B), (C), or 

(D). Government’s Br. 2–3. It is undisputed that Mr. Lopez committed a 

criminal offense covered by § 1227(a)(2)(A)(iii) and (a)(2)(B)(i). However, 

whether § 1252(a)(2)(C) bars review depends on whether Mr. Lopez is a 

citizen, a question we have jurisdiction to decide. Section 1252(b)(5)(A) 

provides: “If the petitioner claims to be a national of the United States 

and the court of appeals finds from the pleadings and affidavits that no 

genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.”
No. 19-1728 3

ed States citizenship at birth through her mother. Ms. Ramos 

de Lopez entered the United States in 1978 and received a 

certificate of citizenship in 1990. Mr. Lopez’s father’s immigration status is unknown. 

Mr. Lopez was admitted to the United States as a lawful 

permanent resident in January 1985. On November 12, 2009, 

he was convicted of two counts of conspiracy to distribute 

methamphetamine and was sentenced to 122 months’ imprisonment. During his incarceration, Immigration and Customs Enforcement (“ICE”) officials advised him that he 

might have derived United States citizenship through his 

mother. After his release, he filed an application for a certificate of citizenship but later withdrew it. 

On September 6, 2018, the Department of Homeland Security (“DHS”) filed a notice to appear before the immigration court, initiating removal proceedings against Mr. Lopez. 

The notice to appear alleged that Mr. Lopez is not a citizen 

of the United States but a native and citizen of Mexico. It further alleged that he was admitted to the United States as an 

immigrant and later convicted of two counts of conspiracy to 

distribute methamphetamine. It charged that these convictions rendered him removable under § 1227(a)(2)(A)(iii) and

(a)(2)(B)(i).3

 

3 8 U.S.C. § 1227(a)(2)(B)(i) reads:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) 

any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in 

section 802 of Title 21), other than a single offense involving 

(continued ... )
4 No. 19-1728

Although he admitted the other allegations in the notice 

to appear, Mr. Lopez denied that he is not a citizen or national of the United States. He maintained that the sections 

of the INA in force at the time of his birth that prevented 

him from automatically deriving citizenship violated the 

Equal Protection Clause of the Fifth Amendment. In his 

view, former statutes 8 U.S.C. §§ 1431–32 (1968) (amended 

2000) impermissibly distinguished between children born 

abroad to two noncitizen parents and children born abroad 

to one citizen parent and one noncitizen parent. 

Noting the immigration court’s lack of jurisdiction over 

constitutional issues, the IJ declined to consider Mr. Lopez’s 

equal protection challenge and ruled that Mr. Lopez was not 

a citizen of the United States and therefore was removable. 

The BIA affirmed without opinion.

On April 18, 2019, Mr. Lopez filed a motion for an emergency stay of removal. We denied his motion, holding that 

he had not made the requisite showing of irreparable harm 

or substantial likelihood of success on the merits. 

Judge Hamilton dissented. He noted that Mr. Lopez was removable “because of an odd, arguably irrational, conundrum” and that a stay of removal would do no harm and 

would give the court time to consider carefully the issues.4

 

( ... continued)

possession for one’s own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(A)(iii) reads: “Any alien who is convicted of an aggravated felony at any time after admission is deportable.”

4 R.9 at 1–2.
No. 19-1728 5

Mr. Lopez timely filed this petition for review of the BIA decision.5

II.

DISCUSSION

A.

Mr. Lopez bases his claim to citizenship on his membership in the class of children who fall under former 8 U.S.C. 

§ 1431 (1968) (amended 2000).6 He is not, however, a member of the class described in this provision. That statute addressed the automatic conferral of citizenship on the minor 

child of one citizen parent and one noncitizen parent “if such 

alien parent is naturalized.” § 1431(a) (emphasis added). Nothing in the record suggests that Mr. Lopez’s father was ever 

 5 Because the BIA affirmed without opinion the IJ’s decision, we review 

the IJ’s decision as the final agency determination. Georgis v. Ashcroft, 328 

F.3d 962, 966–67) (7th Cir. 2003) (explaining that, in such a situation, “the 

IJ’s decision becomes that of the BIA for purposes of judicial review”).

6 Former 8 U.S.C. § 1431 (1968) (amended 2000) provided in relevant 

part: 

(a) A child born outside of the United States, one of whose 

parents at the time of the child’s birth was an alien and the 

other of whose parents then was and never thereafter ceased 

to be a citizen of the United States, shall, if such alien parent 

is naturalized, become a citizen of the United States, when —

(1) such naturalization takes place while such child is under 

the age of sixteen years; and

(2) such child is residing in the United States pursuant to a 

lawful admission for permanent residence at the time of 

naturalization or thereafter and begins to reside permanently in the United States while under the age of sixteen years.
6 No. 19-1728

naturalized, nor does Mr. Lopez make such a claim. The IJ 

concluded—and the Government relies on the assumption—

that a related but different statute, former § 1401(a)(7) (1968) 

(amended 1986),7 applied to Mr. Lopez at the time of his 

birth. Section 1401 “provides the general framework for the 

acquisition of citizenship at birth.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686–87 (2017). Subsection 

(a)(7) of that provision governed the nationality and citizenship of the born-abroad child of a citizen and a noncitizen. It 

required that the citizen parent satisfy a “physical presence” 

minimum of ten years’ residence in the United States prior 

to the child’s birth. § 1401(a)(7). 

In essence, then, Mr. Lopez challenges a statutory scheme 

that automatically conferred citizenship on some children 

born abroad but not on others. He submits that the statutory 

scheme is discriminatory because a child claiming citizenship through a parent born in the United States must 

demonstrate that the parent had a physical presence in the 

United States for ten years. By contrast, a child whose parent 

 

7 Former 8 U.S.C. § 1401(a)(7) (1968) (amended 1986) provided:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents one of 

whom is an alien, and the other a citizen of the United States 

who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of 

which were after attaining the age of fourteen years ... .

The statute has since been amended and currently contains a residency 

requirement of five years’ presence, five of which must be after the age 

of fourteen. 8 U.S.C. § 1401(g) (2012). 
No. 19-1728 7

acquired United States citizenship through naturalization 

need not show such physical presence of the parent. He 

maintains that this statutory scheme violates the Equal Protection Clause because it made the citizenship of the children 

in the former class conditional but granted automatic citizenship to children in the latter group.

B.

The principles that must govern our evaluation of 

Mr. Lopez’s claim are well-established. United States citizenship is acquired either by birth or by naturalization. Miller v. 

Albright, 523 U.S. 420, 423 (1998). The citizenship of those 

who are “born or naturalized in the United States, and subject to the jurisdiction thereof” is constitutionally guaranteed 

and not subject to abridgment. U.S. Const. amend. XIV, § 1; 

Afroyim v. Rusk, 387 U.S. 253, 262 (1967). By contrast, 

“[p]ersons not born in the United States acquire citizenship 

by birth only as provided by Acts of Congress.” Miller, 523 

U.S. at 424. Mr. Lopez contends that the statutory scheme 

under which he did not derive citizenship at birth is an unconstitutional exercise of Congress’s power. 

Our review of a constitutional question is de novo. Anderson v. Milwaukee Cty., 433 F.3d 975, 978 (7th Cir. 2006). 

When examining an equal protection claim under the Fifth 

Amendment,8 we first determine whether the statute “impacts a fundamental right or targets a suspect class. When no 

 8 The Supreme Court’s approach to equal protection claims under the 

Fifth Amendment “has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975). 
8 No. 19-1728

suspect class or fundamental right is involved, we employ a 

rational basis test to determine whether the legislative act is 

constitutional.” Eby-Brown Co., LLC v. Wisconsin Dep’t. of 

Agric., 295 F.3d 749, 754 (7th Cir. 2002). This rule is particularly appropriate when we are dealing with distinctions 

made in the context of the admission or removal of noncitizens. Canto v. Holder, 593 F.3d 638, 641 (7th Cir. 2010). In this 

area, Congress has exceptionally broad power to determine 

the classes of noncitizens who may enter the Country. See

Fiallo v. Bell, 430 U.S. 787, 794 (1977); see also Kleindienst v. 

Mandel, 408 U.S. 753, 765–67 (1972). If “any plausible reason 

could provide a rational basis for Congress’ decision to treat 

the classes differently, our inquiry is at an end, and we may 

not test the justification by balancing it against the constitutional interest asserted by those challenging the statute.” Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001) (quotation 

marks omitted) (citations omitted). Mr. Lopez does not 

maintain that he is a member of a suspect or protected class 

or that his fundamental rights are at stake. See Morales-Santana, 137 S. Ct. at 1689 (applying heightened scrutiny to gender-based classification in the same statutory 

scheme at issue here). The parties therefore appropriately 

focus their arguments on whether the since-amended statutory scheme is supported by a rational basis.

The requirement of the statutory provision at the heart of 

this case can be stated succinctly: A person born abroad to 

one citizen and one noncitizen parent did not automatically 

derive citizenship at birth unless the citizen parent had been 

present physically in the United States before the child’s 

birth for at least ten years. Five or more of those years had to 

be after the parent attained the age of fourteen. Mr. Lopez 

does not contend that this provision does not apply to him. 
No. 19-1728 9

He also does not contest that his mother (the citizen parent) 

did not fulfill this residency requirement. Instead, he simply 

maintains that there is no rational basis on which to distinguish between him—a minor child, born abroad to a United

States citizen, who lawfully entered the Country and lived in 

the custody of that United States citizen parent in the United 

States—and a lawful permanent resident minor child living 

in the custody of a lawful permanent resident parent when 

that parent naturalizes.

As the party challenging the constitutionality of the statutory scheme’s differential treatment of the two groups, 

Mr. Lopez bears the burden of establishing that there is no 

“reasonably conceivable state of facts that could provide a 

rational basis for the classification.” United States v. Nagel, 

559 F.3d 756, 760 (7th Cir. 2009). This is indeed a high burden because rational basis review is quite limited. See generally Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 

(1955) (applying minimal scrutiny in rational basis review). 

“Governmental action only fails rational basis scrutiny if no 

sound reason for the action can be hypothesized.” Lamers 

Dairy Inc. v. U.S. Dep’t. of Agric., 379 F.3d 466, 473 (7th Cir. 

2004). “Practically, our [rational basis] review must be highly 

deferential.” Id.

Acknowledging that he must show that there is no rational basis on which to distinguish between the two classes 

of children, Mr. Lopez submits that the statutory scheme 

evinces a congressional concern about “the influence of an 

alien father (or a U.S. citizen father, who had never resided 

in the United States and thereby might have greater 
10 No. 19-1728

ties/allegiance to another country) over the political ideology 

of what would otherwise be his U.S. citizen child.”9 He offers no source for this proposed rationale. Further, he maintains that nothing in the legislative history provides an explanation for the differential treatment. Mr. Lopez also submits that the eventual passage of the Child Citizenship Act 

of 2000, which eliminated the distinction between the two 

classes, “wholly belie[s]” the assertion that there is a rational 

basis for the “inequitable classification.”10

The Government proffers the justification that Congress 

intended to confer citizenship on individuals who had a 

substantial connection to the United States. 

The rational basis for that provision is to extend citizenship to those with ties or allegiance to the United 

States, rather than the foreign-born offspring of all individuals who were born in the [C]ountry (or themselves derived citizenship through a parent) but did 

not reside, settle, or build a life here.11

As the Government sees it, the parents of both classes of 

children must manifest an intent to settle or make a home in 

the United States. A citizen parent must satisfy a residency 

requirement under former § 1401(a)(7); a parent not born in

the United States must satisfy a naturalization requirement 

under former § 1432. Notably, at the relevant time, the naturalization process carried—and still carries—a residency re-

 

9 Appellant’s Br. 8–9.

10 Appellant’s Br. 10.

11 Government’s Br. 21.
No. 19-1728 11

quirement for the applicant. 8 U.S.C. § 1427 (1968) (amended 

1990).12 The Supreme Court of the United States has 

acknowledged the “legitimate concern of Congress that 

those who bear American citizenship and receive its benefits 

have some nexus to the United States.” Rogers v. Bellei, 401 

U.S. 815, 832 (1971) (internal citation omitted). Indeed, it has 

described residence in the Country as “the talisman of dedicated attachment.” Id. at 834 (citation omitted). 

The Government also notes that the legislative history of 

the statute makes clear that the legislation was aimed at preventing 

the perpetuation of United States citizenship by citizens born abroad who remain there, or who may have 

been born in the United States but who go abroad as 

infants and do not return to this country. Neither 

such persons nor their foreign-born children would 

have a real American background, or any interest ex-

 

12 Former 8 U.S.C. § 1427 (1968) (amended 1990) provided in relevant 

part:

(a) No person ... shall be naturalized unless such petitioner, 

(1) immediately preceding the date of filing his petition for 

naturalization has resided continuously, after being lawfully 

admitted for permanent residence, within the United States 

for at least five years and during the five years immediately 

preceding the date of filing his petition has been physically 

present therein for periods totaling at least half of that time, 

and who has resided within the State in which the petitioner 

filed the petition for at least six months, 

(2) has resided continuously within the United States from 

the date of the petition up to the time of admission to citizenship ... .
12 No. 19-1728

cept that of being protected by the United States Government while in foreign countries.13

Our colleagues on the Court of Appeals for the Second 

Circuit have confronted a situation like the one before us today. Their resolution of that case is instructive. In Colaianni 

v. INS, 490 F.3d 185 (2d Cir. 2007), the petitioner was the 

adopted child of two native-born United States citizens. He 

argued that former §§ 1431–33 arbitrarily favored foreignborn adopted children of subsequently naturalized citizens over 

foreign-born adopted children of native-born United States 

citizens. The children of subsequently naturalized citizens 

received automatic citizenship; parents who were citizens of 

the United States had to apply for a certificate of citizenship 

on behalf of their children. Colaianni, 490 F.3d at 188. The 

Government articulated two reasons for the distinction: that 

it promoted an appreciation of the rights and obligations of 

citizenship and that it deterred immigration fraud. Id. The 

Second Circuit held that these interests were sufficient to 

survive rational basis review. Id. In its view, requiring an affirmative act to secure derivative citizenship is rationally related to the legitimate aim of deterring immigration fraud. 

Id.

Notably, in Dent v. Sessions, 900 F.3d 1075 (9th Cir. 2018), 

cert. denied sub nom. Dent v. Barr, 139 S. Ct. 1472 (2019), our 

colleagues on the Court of Appeals for the Ninth Circuit explicitly followed the Second Circuit and upheld former 

§ 1433. The petitioner in Dent, the adopted child of a United

States citizen, was denied naturalization for failure to prose-

 13 Government’s Br. 20–21 (quoting S. Rep. No. 76-2150, at 4 (1940)).
No. 19-1728 13

cute. He challenged the constitutionality of former § 1433, 

which required that United States citizens petition for the 

naturalization of foreign-born adopted children while conferring automatic citizenship on children born abroad and 

adopted by naturalizing parents. The court held that the 

statute satisfied the rational basis test. It concluded that the 

Government had a legitimate interest in deterring immigration fraud and that requiring citizen parents to affirmatively 

act to secure naturalization for their adopted children served 

this interest. The requirement put citizen parents on par with 

naturalizing parents, since “the intensive naturalization process gave the government the opportunity to inquire into 

naturalizing parents’ relationships with their previously 

adopted children.” Id. at 1082.

The Second and Ninth Circuits held that the 

since-amended statutory scheme was justified under the rational basis test. We must follow the same course. The 

since-amended statutory scheme here bears a rational relation to the Government’s legitimate interest in ensuring that 

children born abroad who become citizens have ties to the 

United States. 

The decision of the Second Circuit in Colaianni also provides persuasive guidance on Mr. Lopez’s argument that the 

subsequent amendment of the statutory scheme proves the 

unconstitutionality of the earlier version. “The fact that the 

[Child Citizenship Act of 2000] eliminated the statutory distinction [petitioner] challenges ‘is not determinative as to 

whether the former statute is rationally related to a legitimate government interest.’” Colaianni, 490 F.3d at 188 (quoting Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005)). 
14 No. 19-1728

CONCLUSION

The statutory scheme of which Mr. Lopez complains survives the rational basis test. The Government has offered a 

plausible rationale for the distinction between children of 

one citizen parent and one noncitizen parent and children of 

two noncitizen, naturalizing parents. Accordingly, the decision of the BIA is affirmed. 

AFFIRMED