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Ramos v. Barr

United States Court of Appeals, Seventh Circuit

November 7, 2019

Ruben Lopez Ramos, Petitioner,
v.
William P. Barr, Attorney General of the United States, Respondent.

          Argued September 25, 2019

          Petition for Review of an Order of the Board of Immigration Appeals. No. A039-091-760

          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 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 United 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 § l227(a)(2)(A)(iii) and (a)(2)(B)(i).[3]

         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]

         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 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 ...


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