FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

R AJE S HR E E E U NI C E RO Y , AKA Rajeshree Eunice W illis, Petitioner ,

v

.
W I L L I AM P. B AR

R , Attorney General, Respondent. No. 15-72942
Agency No. A038-791-594

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals Argued and Subm itted April 28, 2020 San Francisco, California
Filed June 4, 2020

Before: J. Clifford W allace, Ronald Lee Gilm an, * and Susan P. Graber, Circuit Judges. Opinion by Judge Graber

* The H onorable Ronald Lee Gilm an, United States Circuit Judge f o r the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.RO Y V

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SUMMARY * *

Immigration

Dism issing Rajeshree Roy’s petition for review of a decision o f the Board of Imm igrat ion Appeals, the panel concluded that Petitioner failed to establish an equal protection violation with respect to 8 U.S.C. § 1432(a)(3), the applicable derivative-citizenship statute.

Petitioner was b orn in Fiji in 1 974 to two Fijia n c itizens who never m arried. In 1983, her father naturali z e d, and her
m other form ally relinquished parental rights and gave full custody to the father. In 1984, Petitioner entered the United states as a lawful p e rm anent resident, b ut was later charged
as rem ovable b ased on crim ina l c o n v ictions. She m oved to term inate proceedings, challenging the consti tutionality o f 8 U.S.C. § 1 432(a)(3). An imm igration judg e d e n ied the
m otion, and the BIA dism issed Petitioner’s appeal.

Before this court, Petitioner argued that the second clause of § 1 432(a)(3) discrim ina tes by gender and legitim acy and thus violates the Constitution’s guarantee of equal protection. The panel n o ted that the court generally lacks jurisdiction to
r e v ie w a final order of rem oval against a non-citizen wh os e comm ission of a certain type o f c r im e rendered her
rem ovable, 8 U.S.C. § 1 2 5 2 (a)(2)(C), but that the court retains jurisdiction to review legal questions, including whether § 1252(a)(2)(C)’s jurisdictional bar applies.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.RO Y V

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The p anel concluded that Petitioner’s genderdiscrim ination claim failed because she wa s not sim ilarly si tu a ted to persons who derived citizenship under § 1 4 32(a)(3)’s second clause. The p anel explained that th e clause discrim inates on the basis of gender because it grants citizenship upon “the naturalization of the m other if the child
was born out of wedlock and the paternity of the child has not been establishe d by legitim ation,” but does not grant citizenship in the converse scenario: upon the naturalization of the father if the child was born o ut of wedlock and the child’s m aternity has not been established by legitim ation. The panel noted that Petitioner did not, and could not,
c hallenge this clearly d isparate treatm ent because both her paternity and m aternity were established during her youth.
However, Petitioner argued that the clause discrim inates because it does not contain an equiv a l e n t provision stating that a child derives citizenship upon the naturalization of the father where the child was b orn o ut of wedlock, and the
m other relinquished paternal rights o r gave u p the child. The panel rejected this argum ent, exp l aining that the second clause says nothing about the relinquis h m ent of parental rights or th e ab an d onm ent of a child; rather, it hinges on whether a father legitim ated his child. Thus, the p anel concluded that Petitioner did not suffer from a gender-based distinction; she simply did not m eet the statute’s criteria.

The panel also rejected Petitioner’s legitim acyd i s c r i m i n a t i o n c l a i m

. P e t i t i o n e r c o n t e n d e d t h a t § 1432(a)(3)’s use of legitim ation as a cri t e r ion inherently discrim inates on the basis of gender because a father cannot legitim ate a child sim

p ly by b eing p resent for the c h i l d ’s birth. However, the p anel concluded that, because both fathers and m o thers can legitim ate a child after the child’sRO Y V

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birth, legitim ation is not inherently discrim inatory. Further, the p anel concluded that Petitioner was not sim ilarly situated to a person who derived citizenship under the clause because both her parents had legitim ated.

To the extent that Petitioner rai s ed a legitim acydiscrim ination claim based on the first clause of § 1432(a)(3), which g rants citizenship to a child upon naturalization of the parent with legal custody when there has been a legal separation o f the parents (and therefore does not provide citizenship where the p arents were never m arried), the panel observe d th a t this court’s decision United States v. MayeaPulido , 946 F.3d 1055 (9th Cir. 2020), fo re c l o s e d such a challenge. Accordingly, because Petitioner is not a United States citizen, the panel concluded that it lacked jurisdiction to review her final order of rem o val.

C OUNSEL

Delanie Grewe (argued), Cert i fied Law Student; Holly S. Cooper (argued) and Michael Benassini, Supervising Attorneys, U. C. Davis School of Law, Imm igration Law Clinic, Davis, California; Kasdin M. Mitchell (argued), Erin E. Murphy, and Michael D. Lieberm an, Kirkland & Ellis LLP, W ashington, D.C.; for Petitioner.

Tim Ramnitz (argued) and Laura M.L. Maroldy , Att o rneys; Shelley R

. Goad, Assistant Director; Jos e p h H. Hunt, A ssistan t Atto rn ey G en eral; O f

f ice o f Imm igration L itigation,RO Y V

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Civil Division, United States D epartm ent o f Justice, W ashington, D.C.; for Respondent.

Lisa W eissm an-W ard, Jayashri Srikantiah, and Brit t any Benjam in, Stanford Law School, Imm igrants’ Rights C linic, Stanford, California, for Proposed Intervenor.

OPINION GRABER, Circuit Judge:

Petitioner Rajeshree Roy challenges h er pending rem oval to Fiji. P etitioner c o n t en d s that, as a result o f her father’s naturalization in 1983, she should have becom e a United States citizen autom atically when she was adm itted to the United S tates as a perm anent resident the next y ear. T h at did not happen.

The applicable d erivative-citizens h ip statute, form er 8 U.S.C. § 1432(a)(3), 1 contains two clauses. The first clause grants citizenship t o a c hild upon the “naturalization of the parent having legal custody of the child when there h as been
a legal separation of the parents.” Id. W e upheld that clause
as constitutional in United States v. Mayea-Pulido , 946 F.3d 1055 (9th Cir. 2020).

1 W e assess claim s of derivative citizenship “under the law in effect at the tim e t

he critical events

. . . occurred.” Ayala-Villanueva v. H older , 572 F.3d 736, 738 (9th Cir. 2009) (quoting Minasyan v. G o n z a l es , 401 F.3d 1 069, 1075 (9th Cir. 2005 )). A l l c i tations to § 1 4 32 in t h is opinion refer to the version in effect in 1984.RO Y V

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Section 1432(a)(3)’s seco n d clause grants citizenship to
a child u pon “the naturalization of the m other if the child was born out of wedlock and the paternity of the child h a s not been established by legitim ation.” Petitioner argues that this claus e discrim inates b y gender and legitim acy and thus violates the Constitution’s guarantee of equal protection.

Because P etitioner’s paternity and m aternity w e r e both established when she was a child, she is not sim ilarly situated to persons who derived citizenship under § 1432( a )(3)’s
se c o nd clause. Thus, her constitutional challenge fails. Accordingly, because Petitioner is not a United States citizen, we dism iss the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was born in Fiji in 1 974 to two Fijian citizens. Her parents had four chil dren together, but they never m arried. Petitioner’s m other m oved to Australia in 1975, and her father imm igrated lawfu ll y t o the United States soon after. Petitioner rem ained in Fiji wi th h er paternal grandm other for nearly a decade.
In 1983, Petitioner’s father becam e a naturalized United States citizen. Through proceedings in Australia, Petitioner’s
m other form ally relinquished her parental rights over Petitioner and gave full custody to Petitioner’s father. Petitioner’s father then f

iled a v isa application for Petitioner to live wi th h i m in the United States. The parties agree that Petitioner’s p ate rni ty was legitim ated at som e p o int before she turned 18, either because her father’s nam e appeared onRO Y V

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her birth cert i fi c ate (along with her m other’s nam e) o r because her father identified h er as his d au g h t e r on the visa application. Petitioner entered the United States as a lawful p erm anent resident in 1984; her father raised her from th at p oi nt forward with m inim al involvem ent from h er m othe r, who still lives in Australia.

In 1991, Petitioner w as convicted of nine c r im inal charges, including assault and battery. S he served a 14-year sentence for those convictions, which she concedes would render a non-citizen rem ovable f rom th e United States. In 2011, Petitioner was convicted of shoplifting. The g o vernm ent comm enced rem oval proceedings upon he r release fromprison in 2014.

Pe titioner m oved to term inate the rem oval proceedin g s , arguing that s he should h ave derived citizenship from her father. S p ecifically, Petitioner argued that § 1432(a)(3) unconstitutionally fails “to recognize the rig hts o f f ath ers who act as sole caretakers for their out-of-wedlock children.” An imm igration judge deni e d Petitioner’s m otion to term inate bec ause he lacked jurisdiction to address her constitutional claim

. Likewise, the Board o f Imm igration Appeals dism issed P etitioner’s appeal because it lacked jurisdiction to consider her constitutional claim. Sola v. Holder , 720 F.3d 1134, 1135 (9th Cir. 2 013) (per curiam ). Petitioner tim ely sought our review.RO Y V

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JURISDICTION AND STANDARD OF REVIEW 2
Although we g enerally lack jurisdiction to review a final order of rem oval against a non-citizen whose comm ission o f
a certain type of crim e rendered her rem ovable, 8 U. S. C. § 1252(a)(2)(C), we retain jurisdiction under § 1252(a)(2)(D) t o r e v i e w l e g a l q u e s t i o n s , i n c l u d i n g w h e t h e r § 1252(a)(2)(C)’s juris d i c t ional b ar applies. Here, because there is n o g e nuine d ispute of m aterial fact, we m ay determ ine P etitioner’s citizenship “as a m atter of law.” Mustanich v. Mukasey , 518 F.3d 1084, 1087 (9th C ir. 2 008) (citing § 1252(b)(5)(A)). W e review de novo lega l an d constitutional questions arising from rem oval proceedings. Vilchez v. Holder , 682 F.3d 1195, 1198 (9th Cir. 2012).

DISCUSSION

To prevail on her equ al-p ro t ection claim , Petitioner “m ust show that a class that is sim ilarly situated h a s be en treated disparately.” Ariz. Dream Act Coal. v. Brewer , 855 F .3d 957,

2 Contrary to the g overnm ent’s view, Petitioner has standing to challenge § 1 432(a)(3)’s constitutionality. S pecifically, the al l eged constitutional violation, if it existed, would b e redressable. W e have held that courts m ay grant citizenship “as a rem edy to rectify constitutio n al violations.” Brown v. Holder , 763 F.3d 1141, 1149 (9th Cir. 2014). See also Wauchope v. U.S. Dep’t o f State , 985 F .2d 1407, 1418 (9th Cir. 1993) (explaining that an award o f citizenship fa lls within “the traditional authority of the courts to rem edy equal p rotection violations by extending the benefits of a discrim inatory statute to a d is fav ored class”). And the Suprem e Court has affirm ed the addition of new text to a statute as a rem edy “ t o render [an unconstitutional] program g ender neutral.” Califano v. Westcott , 443 U.S. 76, 93 (1979).RO Y V

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966 (9th C ir. 2 0 17) (internal q uotation m arks om itted). 3 In analyzing Pe t itioner’s claim , we first “identify the [governm ent’s] classificat i o n o f g roups” in the statute. Id. (quoting Country Classic Dairies, Inc. v. Milk Control Bureau , 847 F.2d 593, 596 (9th Cir. 1988)). After identifying
a “classified g roup,” we search for a com parative g roup “com p osed of individuals who are sim ilarly situated to those in the classified group in respects that are relevant to the [governm ent’s] challenged policy.” Gallinger v. Becerr a , 898 F.3d 1012, 1016 (9th Cir. 2018). “If the two groups are si milarly situated, we determ ine the appropriate level o f scrutiny and then apply it.” Id. (em phasis added).

Section 1 432(a) p rovides (with em p hasis added to the challenged clause):

A child born outside of the United States of alien parents

. . . becom es a citizen of the United States upon fulfillm ent of the following conditions: (1) The naturalization of both parents; or

3 P etitioner challenges federal legislation, so the “applicable equality guarantee” com es from the Fifth Am endm ent’s D ue Process Clause rather than the Fourt e e n th Am endm ent’s E qual P r otection Clause. Sessions v. Morales-Santana , 137 S

. Ct. 1678, 1686 n.1 (2 01 7 )

. The Fifth Am endm ent prohibits “ discrim ination that is so un ju s t i fiable as to be violative o f due process.” Id. (quo t ing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)). D es pite the t extual differences between the two am endm ents, the “approach to Fifth Am endm ent equal protection claim s has always been precisely the sam e as to equal pro t ec ti o n claim s under the Fourteenth Am endm ent.” Id. (quoting Weinberger , 420 U .S. at 638 n.2).RO Y V

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a legal separation of th e p arents o r the naturalization of the mother if the child was born out of wedlock and the p aternity of the child has not been established b y legitim ation ; and if (4) Such n aturalization takes p lace while such child is under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful adm ission for perm anent
r e sidence at the tim e of the naturalization of the parent

. . . n aturalized under clause (2) o r (3) of this subsection, or th ereafter begins to reside p erm anently in the United States while under the age of eighteen years.

The parties agree that P etitioner satisfied the criteria of (a)(4) and (a)(5).

A. Petitioner’s Gender-Discrimination Claim

Section 1 4 32(a)(3)’s second clause d iscrim inates on the basis of gender. It grants citizenship u pon “the naturalization
o f th e m other if the child was b orn out of wedlock and th e paternity of the child has not be e n established by legitim ation,” but it does n ot grant citizenship in the converse scenario: upon the naturalization of the father if the child
was b orn out of wedlock and the child’s maternit y h as notRO Y V

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been established b y legitim ation. Al th ough that scenario is unlikely, it is not im

possible. For exam

ple, an unm arried
m other could g ive birth at her hom e and then leave the baby
on the father’s doorstep. The father could get a D NA test to
c onfirm his relationship to the baby, but if h e h ad se x wi th
m ore than one wom an approxim ately nine m onths earlier, the child’s m aternity would rem ain unknown. And, as we discuss later, the m other could legitim ate her relationship to the child well after the child’s birth.
Petitioner, however, does not challenge th e c learly disparate treatm ent identified above. Nor could she, because both her paternity and her m aternity were established during h er y outh. Instead, she argues that the statut e unconstitutionally discrim inates “because it does not contain any equivalent provision stating that a ch i l d autom atically becom es a citizen upon the naturalization of the father if the child wa s born out of wedlock and the m other has relinquished parental rights” or has abandoned the child.

W e disagree. Section 1432(a)(3)’s se c o nd clause says nothing about the relinquishm ent of parental rights or the abandonm ent of a chi l d

. Rather, it hinges derivative citizenship o n whether a father legitim ated his child. A f ather who fails to legitim ate his out-of-wedlock child m ight also abandon the child, but the two actions are not identical. For
exam p le, a father could legitim ate his child and then abandon the child later. Thus, Petitioner’s p r o posed com parative group does n ot align wi th th e classified group “in respects that are relevant t o the [ governm ent’s] challenged policy.” Gallinger , 898 F.3d at 1016.

Petitioner’s circum stances illustrate the disconnect between the classified group and h er proposed co mp arativeRO Y V

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group. Even if Petitioner’s parents’ roles in her life had been reversed—that is, if her m other had naturalized and raised her in the United States and her father had “abandoned” her—she sti l l wo u ld n o t have d erived citizenship under § 1432(a)(3), because her father legitim ated her. S ection 1432(a) p rovides three av enues to derivative citizenship for legitim ated children, and none of them “depends on the sex of the parent (or parents) who naturalize or h ave custody.” Wedderburn v. INS, 215 F.3d 795, 802 (7th Cir. 2000).

Under § 1432(a), “[l]egitim ated children becom e citizens if both parents naturalize, if the surviving parent naturalizes,
or if th e parent having ‘legal custody’ naturalizes following the p arents’ ‘legal separatio n

. ’ ” Id. (quoting § 1432(a)(3)). In o ther words, Petitioner did n ot suffer from a gender-based distinction; she sim

ply did not m eet the statute’s criteria. See Levy v. U.S. Att’y Gen. , 882 F.3d 1364, 1367 (11th Cir. 2 018) (per curiam ) (listing the conditions under which a legitim ated child w ould derive citizenship through § 1432(a) and stating that “[n]one of th o s e conditions turns on gender”); accord Barthelemy v. Ashcroft , 329 F.3d 1062, 1068 (9th Cir. 2 003) (“[Section 1432(a)(3)] m akes no sex-based distinction when the petitioner has been legitim ated.”), overruled in p a rt on o th er g rounds, as recognized in Mayea-Pulido , 9 46 F.3d at 1062.

Pe ti tioner’s proposed rem edy also m akes clear the leg al infirm ity of her equal-protection claim

. She suggests that we s h ould m o dify the second clause o f § 1432(a)(3) to provid e for derivative citizenship upon:
[T]he naturalization of the m other parent with sole legal custody o

f the child if the child was born out of wedlock and the paternity of theRO Y V

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child has not been established b y legitim ation the other parent has relinquished parental rights

. Petitioner’s suggestion does not sim ply correct a gender disparity—it rewrites the statute entirely. No m atter h ow preferable her version m ight be as a policy m atter, 4 we lack the power to am end statut e s t o accomm odate policy preferences. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 6 49 (2012) (explaining that “the pros and cons” of a particular policy “are for the consideration of Congress, not the courts”).

The Constitution’s guarantee of equal protection forbids “governm ental decisionm akers from tre ating differently per s o n s wh o are in all relevant respects alike.” Dream A ct , 855 F.3d at 966 (quoting Nordlinger v. Hahn , 505 U .S. 1, 10 (1992)). Because Petitioner’s father legitim ated her, she does not resem

b le, in all relevan t wa y s , persons who derived citizenship under § 1 432(a)(3)’s second clause. Gallinger , 898 F.3d at 1016. W e th e re fore do not apply any level o f scrutiny to the second clause’s gender distinction, m uch less th e heightened scrutiny that Morales-Santana , 137 S. C t. at 1690, applied to a d ifferent gender distinction, be cause

4 Congress repealed § 1432 when it enacted the Child Citizenship A ct of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1631, 1632. Under the Child Citizenship Act, a child born outside t he United States derives ci t izenship when the child m eets certain other conditions (wh i ch P eti t i o n er undisputedly m et here) and “[a]t least one parent of the child is a citizen of th e U n i ted S tates, whether by birth or naturalization.” 8 U.S.C. § 1 4 3 1(a). But that rule does n ot apply r etroactively to people (such as Petitioner) who already h ad turned 1 8 when the law took effect in 2001. Hughes v. Ashcroft , 255 F.3d 752, 760 (9th Cir. 2001).RO Y V

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Petitioner’s gender-discrim ination claim fails at the o utset, Gallinger , 898 F.3d at 1016.

B. Petitioner’s Legitimacy-Discrimination Claim

Petitioner’s legitim acy-discrim ination claim is largely an extension of her gender-discrim ination claim , but we address that claim separ a t ely here. Petitioner contends that § 1432(a)(3)’s use of legitim ation (or lack thereof) as a c r iterion inherently d iscrim inates on the basis of gender because a father cannot legitim ate a child sim ply by being present for the child’s birth. Regardless, because both fathers
an d mo th ers can legitim ate a child after the child’s birth, legitim ation is not inherently discrim inatory on the b a sis o f gender.

Consider our earli er exam ple of a hypothetical m other who gave birth at hom e and then left h er baby on the father’s doorstep, thus keeping her m aternity a mystery. That m other could reappear later i n th e child’s life to establish her
m aternity by legitim ation, whethe r through a DNA test o r som e other m echanism

. Fo r instance, in California (where Petitioner’s father has lived since com ing to th e United States), the m other cou l d e stablish a “parent and child relationship” by providing “proof of having given birth to the child.” Cal. Fam . Code § 7610(a).

Now recall the version of § 1432(a)(3)’s second clause with reversed gender roles, which woul d g r ant citizenship “upon the n aturalization of the father if the child was born out of wedlock and the child’s maternity has not been established by le g itim ation.” Reversing the gender roles does not help Petitioner. Her m other and father both legitim ated her when she was a child, so she does not resem ble, in a l l relevantRO Y V

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ways, persons who derived citizenship under § 1432(a)(3)’s second clause. Gallinger , 898 F .3d at 1016. A gain, because Pe t i ti oner is not sim ilarly situated to persons who derived citizenship under § 1432(a)(3)’s second claus e, we do not apply any level of scrutiny to that clause’s gender o r legitim acy distinction, and Petitioner’s repackaged genderdiscrim ination claimstill fails. Id.

To the extent that P eti ti oner raises a legitim acydiscrim ination claim that is distinct from her genderdiscrim ination claim , Mayea-Pulido forecloses her claim

. There, we explained that children b orn to unm arried parents could obtain derivative citizen s h i p under § 1432(a)(3) “if [their] parents later m arried and then legally separate d , th e sam e as a mar i t al child whose parents were m arried at his birth but later [legally] separated.” Mayea-Pulido , 946 F.3d at 1064. If Petitioner’s parents ha d marr i e d at som e point after her birth and then legally separated before she turned 18 (and if her father had sole custody), she would have derived citizenship from her father under § 1432(a)(3)’s first clause.
Likewise, Petitioner would have derived citizenship from her father under § 1432(a)’s other subsections if she had m et the relevant criteria: (1) both p arents naturalized; or (2) o ne parent (her m other) died and the surviving parent (her father)
n aturalized. Thus, contrary to Petitioner’s view, the statut e does n ot im

p ose a categorical bar against unwed fathe rs passing citizenship t o children born out of wedlock. If anything, § 1432(a)(3)’s second clause gives children born to
unm arried p arents “an extra route to citizenship, one not
e n j o y e d b y l e g i t i ma t e ( o r l eg it i ma t e d ) o f f s p r i n g

. ” Wedderburn , 215 F.3d at 802.RO Y V

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Petitioner’s constitutional challenge to § 1432(a)(3) fails,
so we cannot grant her d e r i v a tive citizenship. Accordingly, because Petit i o n er is not a citizen of the United States, we lack jurisdiction to review her final order o f r em oval. 8 U.S.C. § 1252(a)(2)(C).

PETITION DISMISSED.