CARTAGENA v. BARR (2019)

SUMMARY ORDER

Petitioner Juan Antonio Cartagena, a native and citizen of the Dominican Republic, seeks review of a BIA decision denying his motion to reopen his removal proceedings. See In re Juan Antonio Cartagena, No. A XXX XX8 643 (B.I.A. June 6, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case, which we reference only as relevant to Cartagena's derivative citizenship claim.

Cartagena was born in the Dominican Republic in 1968 to unmarried Dominican citizens. His father relocated to the United States and, in 1973, Cartagena entered this country as a lawful permanent resident. Cartagena's father, his custodial parent at that time, naturalized as a U.S. citizen in 1979. His mother naturalized in 1996, well after Cartagena turned 18.

We have jurisdiction to review Cartagena's derivative citizenship claim notwithstanding that we generally lack jurisdiction to review orders of removal based on felony convictions, or the BIA's discretionary decision to decline sua sponte reopening. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil v. Sessions, 851 F.3d 184, 186 n.1 (2d Cir. 2017); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). “We review the question of derivative citizenship de novo where, as here, the petitioner claims to be a national of the United States and the record presents no genuine issue of material fact about the petitioner's nationality.” Gil v. Sessions, 851 F.3d at 186 (internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(5)(A).

I. Derivative Citizenship

Pursuant to the law of the case doctrine, we decline to revisit whether Cartagena meets the requirements for derivative citizenship under former 8 U.S.C. § 1432(a). See Cartagena v. Sessions, No. 16-3010 (2d Cir. Feb. 14, 2017)(reasoning that Cartagena, “who was born out of wedlock, did not automatically derive citizenship from his father under former 8 U.S.C. § 1432(a) because his mother was not naturalized or deceased while he was under 18”); Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 736 F.3d 198, 208 (2d Cir. 2013) (explaining that, while “not binding,” law of the case doctrine forecloses relitigation of issues decided by prior panel absent “cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice” (internal quotation marks omitted)).

II. Equal Protection

That does not end our inquiry, however, because Cartagena also challenges the constitutionality of 8 U.S.C. § 1432(a)(3), under which he sought derivative citizenship. That statutory provision states, in relevant part, that a naturalized mother may automatically confer U.S. citizenship to her child “if the child was born out of wedlock and the paternity of the child has not been established by legitimation.” 8 U.S.C. § 1432(a)(3). Cartagena asserts that this provision allowing an unwed mother to confer citizenship—but not an unwed father—is a gender-based classification that violates equal protection. This court, however, has already held that § 1432(a)(3) does not violate equal protection, see Pierre v. Holder, 738 F.3d 39, 48, 50–58 (2d Cir. 2013), and we are bound by that “decision until it is overruled either by this Court sitting en banc or by the Supreme Court,” Doscher v. Sea Port Grp. Sec., LLC, 832 F.3d 372, 378 (2d Cir. 2016).

Cartagena argues that the Supreme Court's decision in Sessions v. Morales-Santana, ––– U.S. ––––, 137 S. Ct. 1678, 198 L.Ed.2d 150 (2017), overrules Pierre. It does not. The statute at issue in Morales-Santana, 8 U.S.C. § 1401(a)(7), required an unwed citizen father to reside in the United States for ten years prior to the birth of his child, whereas the statute required only one year of pre-birth residency for an unwed mother to pass citizenship to her child, see Morales-Santana, 137 S. Ct. at 1686. The Supreme Court held that this difference violated equal protection because it discriminated on the basis of gender and relied on an outdated and unjustifiable understanding of gender roles. See id. at 1690-98.

Section 1432(a), however, does not rely on outdated stereotypes. Rather, it distinguishes between circumstances where a minor has two known and living parents and where a minor has only one parent (either an unwed mother and no paternal legitimation or a deceased parent). See Lewis v. Gonzales, 481 F.3d 125, 131 (2d Cir. 2007); cf. Morales-Santana, 137 S. Ct. at 1690-94 (distinguishing laws based on outdated stereotypes from those based on “the parent's filial tie to the child”). Accordingly, Morales-Santana does not implicate § 1432(a)(3), and Pierre controls.

For the foregoing reasons, the petition for review is DENIED.