Howard Paul Levy v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 21, 2017
• Docket: 16-14972
• Status: Unpublished

Opinion

Case: 16-14726 Date Filed: 09/21/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 16-14726 & 16-14972 Non-Argument Calendar ________________________

Agency No. A039-072-266

HOWARD PAUL LEVY,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petitions for Review of a Decision of the Board of Immigration Appeals ________________________

(September 21, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM: Case: 16-14726 Date Filed: 09/21/2017 Page: 2 of 5

Howard Paul Levy petitions for review of the Board of Immigration

Appeals’ order affirming his removal from the United States. Levy is a native and

citizen of Jamaica. His father and mother were unmarried but his father

acknowledged paternity at birth. Levy’s father became a lawful permanent

resident of the United States in 1978, obtained full custody of Levy in 1984, and

became a naturalized citizen in 1985. Levy became a lawful permanent resident of

the United States in 1985 and resided with his father. Levy’s mother never resided

nor acquired immigration status in the United States and died in 2013.

After a jury convicted Levy for conspiracy to commit mail fraud, 18 U.S.C.

§ 1349, the Department of Homeland Security began proceedings to remove him

from the country. The Immigration Judge sustained the removal charge. Levy

moved to terminate the proceedings, contending that he is a United States citizen

by way of his father’s naturalization. The IJ denied his motion and Levy appealed

to the BIA, which adopted and affirmed the IJ’s ruling and dismissed his appeal.

Levy contends that the derivative naturalization statute at issue, former

Immigration and Nationality Act § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1985),1

violates the equal protection component of the Fifth Amendment because it

discriminates based on gender. We have jurisdiction to consider and review de

1 When an individual seeks derivative citizenship from naturalization, the BIA applies the law in effect when the last material condition was met. In Re Rodriguez-Tejedor, 23 I. & N. Dec. 153, 163 (BIA 2001). In this case, the BIA applied the law in effect in 1985 — when Levy’s father was naturalized. 2 Case: 16-14726 Date Filed: 09/21/2017 Page: 3 of 5

novo constitutional claims and questions of law related to the INA. 8 U.S.C.

§ 1252(a)(2)(D); see Cole v. U.S. Att’y Gen., 712 F.3d 517, 523 (11th Cir. 2013).

Former INA § 321(a) provides:

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the 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; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

INA § 321(a) (1985). Levy could derive citizenship only under the first clause of

§ 321(a)(3), which confers citizenship based on “[t]he naturalization of the parent

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

3 Case: 16-14726 Date Filed: 09/21/2017 Page: 4 of 5

parents.”2 The IJ and BIA determined that Levy did not derive citizenship under

that provision because his parents never married and, as a result, never “legally

separat[ed].” Id. § 321(a)(3). Levy argues that the marital status criterion

constitutes gender discrimination based on a “caregiver/breadwinner dichotomy.”

According to him, if his mother instead of his father had been a United States

citizen, he would be a citizen.

Levy misreads the statute. For a legitimated child such as Levy, the

pertinent paragraph refers only to a “parent having legal custody of the child” and

does not distinguish between mothers and fathers. Id. It does not discriminate

based on gender because it favors neither mothers nor fathers. Had the situation

been reversed — if Levy’s mother had become a lawful permanent resident,

obtained citizenship, and raised him in the United States while his father remained

in Jamaica — Levy still would not have obtained citizenship based on her

naturalization because his parents were not “legally separat[ed].” As a result, the

statute does not implicate, much less violate, the equal protection component of the

Fifth Amendment based on gender discrimination.

2 Section 321(a)(1) does not apply because Levy’s mother was never naturalized. Section 321(a)(2) does not apply because it is conditioned on the non-naturalizing parent dying before the child turns eighteen, see INA § 321(a)(4), and Levy’s mother died after he turned eighteen. And the second clause of § 321(a)(3) does not apply because Levy’s mother was never naturalized and his “paternity [was] established by legitimation” when his father acknowledged paternity. See Matter of Cross, 26 I&N 485, 486 (BIA 2015) (noting that under the Jamaican Status of Children Act, the paternity of a child born out of wedlock is legitimated if the father acknowledges paternity). 4 Case: 16-14726 Date Filed: 09/21/2017 Page: 5 of 5

To the extent Levy meant to argue that § 321(a)(3) violates equal protection

because it discriminates based on legitimacy, he has abandoned that argument.

Levy’s initial brief focuses solely on gender bias and mentions legitimacy only in

passing (if at all) and without citations to authority. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an

appellant abandons a claim when he either makes only passing references to it or

raises it in a perfunctory manner without supporting arguments and authority.”).

The fact that Levy discussed a legitimacy based challenge in his reply brief does

not make up for that deficiency. See United States v. Evans, 473 F.3d 1115, 1120

(11th Cir. 2006) (“[A]rguments raised for the first time in a reply brief are not

properly before a reviewing court.”) (quotation marks omitted). As a result, we

decline to consider whether former INA § 321(a)(3) impermissibly discriminates

based on legitimacy.

PETITION DENIED. 3

3 Levy moved to file a supplemental brief on potential remedies following the Supreme Court’s decision in Sessions v. Morales-Santana, 582 U.S. __, 137 S. Ct. 1678 (2017). Because we affirm the BIA’s final order, Levy’s motion is DENIED AS MOOT. 5