September 25, 2019
Petition for Review of an Order of the Board of Immigration
Appeals. No. A039-091-760
Ripple, Rovner, and Brennan, Circuit Judges.
RIPPLE, CIRCUIT JUDGE.
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.Mr. Lopez timely seeks review of
the removal decision here.Because the statutory scheme has a
rational basis, there is no equal protection violation.
Consequently, we deny the petition for review.
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.
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.
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).
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.
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.
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
Lopez timely filed this petition for review of the BIA
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). 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),
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 ...