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In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2241

Kevin Wedderburn,



Immigration and Naturalization Service,


Petition for Review of an Order of the
Board of Immigration Appeals

Argued January 5, 2000--Decided June 1, 2000

  Before Posner, Chief Judge, and Easterbrook and
Ripple, Circuit Judges.

  Easterbrook, Circuit Judge.  Children born outside
the United States, of alien parents, acquire U.S.
citizenship automatically if before their
eighteenth birthday they move to the United
States, and one or both of their parents become
U.S. citizens. Section 321(a) of the Immigration
and Nationality Act, 8 U.S.C. sec.1432(a). Kevin
Wedderburn, who was born in Jamaica of Jamaican
parents, contends that he became a citizen on
June 2, 1993, four months before his eighteenth
birthday, when his father Fitzroy Wedderburn
became a naturalized United States citizen.
Immigration officials, by contrast, believe that
Kevin is not a U.S. citizen because his mother,
Julie Hines, remains a citizen of Jamaica. Kevin
has been ordered deported because of his criminal
record (he was sentenced to six years'
imprisonment in 1995 for aggravated sexual
assault of a boy under nine years of age), and if
Kevin is an alien that criminal conviction not
only supports removal but also forecloses all
avenues of discretionary administrative relief
and judicial review. But a person ordered removed
is entitled to review of the questions whether he
is an alien, and whether he committed a felony
requiring removal. Yang v. INS, 109 F.3d 1185,
1192 (7th Cir. 1997). See also, e.g., Solorzano-
Patlan v. INS, 207 F.3d 869 (7th Cir. 2000);
Xiong v. INS, 173 F.3d 601 (7th Cir. 1999). Kevin
does not deny that his criminal conviction
requires removal, if he is an alien. (It is
irrelevant for current purposes whether  that
conviction is best classified under 8 U.S.C.
sec.1101(a)(43)(A), as "sexual abuse of a minor",
or sec.1101(a)(43)(F), as a "a crime of violence
. . . for which the term of imprisonment [is] at
least one year".) Thus everything turns on
citizenship: if Kevin is a citizen, the order of
deportation must be set aside, but if he is not
a citizen we must dismiss his petition for want
of jurisdiction.

  Kevin was born in Jamaica on October 30, 1975.
His parents were not married and did not marry
each other later--though on June 5, 1986, Fitzroy
added his name to Kevin's birth certificate as
the father, which under Jamaican law means that
Kevin is a legitimate child. Before legitimating
Kevin, Fitzroy moved to the United States and
married. His wife, Velma, became a U.S. citizen
in 1986 and filed a petition for a visa that
would allow Kevin to live in the United States.
When he was eleven, Kevin came to the United
States, but after three years in New York with
Fitzroy and Velma, he moved to Illinois to live
with his paternal grandmother.

  Whether these events made Kevin a citizen
depends on sec.321(a), which reads:

A child born outside of the United States of
alien parents . . . becomes a citizen of the
United States upon fulfillment of the following

(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

Kevin meets the conditions in clauses (4) and
(5), so he is a citizen if any one of clauses (1)
to (3) applies. Julie Hines has not naturalized,
so he does not satisfy clause (1). Nothing in the
record suggests that Julie has died, so Kevin
does not satisfy clause (2). Clause (3) offers
two options. Kevin does not satisfy the latter,
involving his mother's naturalization, not only
because Julie has not become a U.S. citizen but
also because his paternity has been established
by legitimation. He does not meet the former
option, involving naturalization of the parent
with legal custody, because his parents have not
undergone "a legal separation" and it is unclear
whether Fitzroy had "legal custody" of Kevin at
the time. His residence at the time of Fitzroy's
naturalization was with his paternal grandmother,
so the BIA's conclusion that one parent's
permanent physical custody with the other's
consent is "legal custody" does not assist Kevin.
See Matter of M--, 3 I.&N. Dec. 850 (1950). Kevin
does not meet the requirements of sec.321(a).

  Kevin asks us to read sec.321(a)(3) to treat
him as a citizen notwithstanding his inability to
meet the statutory conditions. His argument draws
on what he believes is a statutory incongruity.
Section 101(c)(1), 8 U.S.C. sec.1101(c)(1), which
defines the term "child" for purposes of Title
III of the Act (which comprises sec.321),
includes legitimated and adopted children in the
set eligible for citizenship.

The term "child" means an unmarried person under
twenty-one years of age and includes a child
legitimated under the law of the child's
residence or domicile . . . if such legitimation
or adoption takes place before the child reaches
the age of 16 years . . ., and the child is in
the legal custody of the legitimating or adopting
parent or parents at the time of such
legitimation or adoption.

According to Kevin, he is a "child" under this
definition, so sec.321(a)(3) should be read to
deem him a citizen. The premise of this argument
is incorrect; he is not a "child" under
sec.101(c)(1), because he was not in Fitzroy's
custody at the time of the legitimating event. In
June 1986, when Fitzroy legitimated Kevin by
adding his name to Kevin's birth certificate,
Fitzroy was living in New York, while Kevin was
living in Jamaica with one of his grandmothers.
But even if Kevin were a "child" under
sec.101(c)(1), this would not by itself make him
a citizen. Section 101 defines terms; the
substantive requirements of citizenship appear
elsewhere in the Act. Only with respect to
sec.322, 8 U.S.C. sec.1433, which permits a U.S.
citizen parent to obtain citizenship for a
"child" in his "legal custody," does the
definition have independent significance.
(Fitzroy has not sought to confer citizenship on
Kevin via sec.322.) Both sec.101(c)(1) and
sec.321(a) equate legitimated children to
legitimate ones. Kevin's problem is not the
nature of this equation, but the fact that he
does not qualify under sec.321(a) whether he is
"illegitimate," "legitimated," or "legitimate."
The label does not make a difference, because
Julie Hines is alive (we must assume) and has not
become a U.S. citizen, and Kevin has never been
in his father's "legal custody [after] there has
been a legal separation of the parents". Putting
sec.101 together with sec.321 does not help
Kevin, and appealing to the statutes' spirit, as
Kevin does, does not alter the statutes'

  We may assume, as Kevin insists, that, when
sec.321(a) was enacted, the predominant, if not
the exclusive, means of legitimating an
illegitimate child was the parents' subsequent
marriage. When legitimation equals marriage, then
a dissolution will produce "legal separation" and
"legal custody", so that legitimated children can
take full advantage of the first possibility
under sec.321(a)(3). When some foreign nations
made it possible to legitimate a child without
marriage, or indeed abolished the distinction
between legitimate and illegitimate children,
this created the possibility that the legitimated
child could not use sec.321(a)(3)'s first clause.
Kevin sees this as a "gap" that we should close;
but it is not a proper function of interpretation
(as opposed to amendment) to ensure that every
development in foreign law has a corresponding
benefit under U.S. law. Kevin has the same
options he and others like him possessed before
Jamaica amended its law in 1976 to treat persons
in his position as legitimate--Fitzroy's
signature on the birth certificate did more to
affect his status as a recognized father than to
alter Kevin's status under Jamaican law--the
amendment of Jamaican law does not have any
significance for the proper interpretation of

  At oral argument, the judges and counsel
explored two different, and perhaps more
promising, ways of approaching sec.321(a). One
possibility is that "legal custody" and "legal
separation of the parents" have a technical
meaning, perhaps by incorporating Jamaican law,
that enables Kevin to satisfy sec.321(a)(3). The
other is that Congress acted irrationally, and
thus unconstitutionally, by requiring both "legal
custody" and "legal separation." The parties
submitted post-argument memoranda concerning the
first of these possibilities. These memoranda
show that Kevin did not raise either line of
argument before the Board of Immigration Appeals,
or for that matter in his appellate briefs, so
they have been waived. But we cover them briefly
nonetheless, if only to show that Kevin's
deportation is not the result of a blunder by his

  "Legal custody" and "legal separation of the
parents", as words in a federal statute, must
take their meaning from federal law. On this both
sides agree. But federal law may point to state
(or foreign) law as a rule of decision, and this
is how the INS has consistently understood these
terms. Matter of H--, 3 I.&N. Dec. 742 (1949),
concludes that the term "legal separation" means
either a limited or absolute divorce obtained
through judicial proceedings. It is thus apparent
that the term "legal separation," can refer only
to a situation where there has been a termination
of the marital status. Since the subject's
parents were not lawfully joined in wedlock, they
could not have been legally separated.

3 I.&N. Dec. at 744. The last line of this
quotation supposes, however, that Jamaican law
limits "a limited or absolute divorce obtained
through judicial proceedings" to situations in
which a marriage is being dissolved. Because the
INS determines the existence, validity, and
dissolution of wedlock using the legal rules of
the place where the marriage was performed (or
dissolved), see DeSylva v. Ballantine, 351 U.S.
570, 580-82 (1956); Matter of Miraldo, 14 I.&N.
Dec. 704 (1974); Matter of M--, it is at least
possible that Jamaica permits unmarried persons
to obtain a "legal separation" and an award of
"legal custody" of the children. But Kevin's
lawyers concede that, after a diligent search,
they could not find any Jamaican law to that
effect. They represent that marriage in Jamaica
is a formal subject (Jamaica does not, for
example, recognize common-law marriage) and that
legal separation is limited to persons who have
been married. In this respect, at least, Jamaican
law tracks the expectation voiced in Matter of H-
-, so Kevin asks us to reject the whole approach
of Matter of H-- and to treat not only the
definition of the words in sec.321(a)(3), but
also their referents, as matters of federal law.
Many federal statutes now prescribe some rules of
family law; for example, 1 U.S.C. sec.7 defines
marriage, wherever that term appears in the
United States Code, as "a legal union between one
man and one woman as husband and wife". See Jill
Elaine Hasday, Federalism and the Family
Reconstructed, 45 U.C.L.A. L. Rev. 1297 (1998)
(describing other national resolutions of family-
law matters). Section 321(a) is just one more
example of the displacement of local law, Kevin

  That does not get Kevin very far if we
understand "legal separation" normally. See
Black's Law Dictionary 1369 (7th ed. 1999)
(defining "separation" as "[a]n arrangement
whereby a husband and wife live apart from each
other while remaining married, either by mutual
consent or by judicial decree; the act of
carrying out such an arrangement.--Also termed
legal separation; judicial separation."). Just as
Matter of H-- says, domestic relations law in the
United States treats "legal separation" as the
judicial suspension or dissolution of a marriage.
Kevin asks us to give it a completely different
meaning, equating "legal separation" with "not
being legally joined." Under this definition,
Fitzroy Wedderburn and Julie Hines were "legally
separated" from the moment they met (indeed, were
"legally separated" before they met). Fitzroy
would be "legally separated" from more than six
billion people: everyone on the planet other than
his wife. That is not a plausible interpretation
of "legally separated", however, first because it
leaves no work for "legally" (a word that in a
construction like this usually refers to a
judicial decree), and second because it is
impossible to see how people who have never been
joined can be separated. Separation implies a
comparison to a former state of joinder. South
America and Africa have been "separated" because
they were once joined in Pangaea and
Gondwanaland; but Hawaii, although separate from
the continental United States, has never been
"separated" from it. At all events, the BIA did
not exceed its delegated powers when reading
"legally separated" as drawing a distinction
between cohabitation in marriage and a later
state of living apart (with or without divorce);
reading a phrase just as Black's Law Dictionary
does can not be described as excessively
freewheeling interpretation. See Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).

  What then of the possibility that sec.321(a)(3)
is irrational because it requires proof of both
"legal custody" and "legal separation"? Because
the conjunction of "legal separation" with "legal
custody" does not concern any suspect class, a
rational basis is enough to defeat a
constitutional challenge. It is not hard to think
of a basis. Many legally separated parents share
custody of their children. Congress did not have
to treat divorce (or any other form of legal
separation) as the equivalent of one parent's
death; sec.321(a) as written means that in
shared-custody cases both parents must
naturalize, and this is entirely rational. As for
the reverse--legal custody in the naturalizing
parent, but not legal separation of the parents--
this situation can come about when one parent has
been deemed unfit to have custody, perhaps
because of mental or medical conditions, or is
physically unable to have custody (perhaps
because of incarceration). Often these conditions
will pass, and the parents will resume living
together with joint custody of the child.
Congress rationally could conclude that as long
as the marriage continues the citizenship of the
children should not change automatically with the
citizenship of a single parent. After all,
gaining U.S. citizenship by naturalization means
disavowing one's original citizenship. 8 U.S.C.
sec.1448(a)(2). (Usually disavowal means losing
the original citizenship, though some foreign
nations believe that citizenship acquired at
birth cannot be lost, and hence treat naturalized
U.S. citizens as dual nationals.) Both the child
and the surviving but non-custodial parent may
have reasons to prefer the child's original
citizenship, which may affect obligations such as
military service and taxation. Section 321(a)
limits automatic changes to situations in which
the other parent has been removed from the
picture--either by death or by "legal
separation." In a small subset of the cases in
which there is legal custody it may prove
impossible to meet the legal-separation
requirement even in the long run--perhaps because
a child was legitimated without marriage, perhaps
because the nation with jurisdiction over the
marriage does not recognize divorce or legal
separation. See Matter of Miraldo. But for these
cases sec.322 permits the custodial parent to
obtain U.S. citizenship for his or her child as
a matter of right, by filing an application. A
law does not become unconstitutional just because
it does not fit 100% of the cases; mismatches
between legal rules and the world at large are
inevitable. E.g., Califano v. Jobst, 434 U.S. 47
(1977). But sec.321(a) is a mismatch for a
custody-but-not-legal-separation situation only
when read independently of sec.322, which would
be unsound.

  Although Kevin does not contend that
sec.321(a)(3) is irrationally arbitrary, he has
waged a vigorous constitutional challenge on
other grounds. Relying on Miller v. Albright, 523
U.S. 420 (1998), he contends that sec.321(a)(3)
violates the equal protection component of the
fifth amendment's due process clause. According
to Kevin, the statute "creates an invidious
classification between naturalized mothers of
illegitimate children, who can pass on the
benefit of citizenship, and naturalized fathers
of legitimated children, who cannot." Miller
concerned the constitutionality of 8 U.S.C.
sec.1409, which provides that illegitimate
children inherit the citizenship of their
mothers, while fathers can transmit U.S.
citizenship to offspring only if additional
conditions are satisfied. Three groups of two
Justices apiece made up the majority, and Lorelyn
Miller, the person claiming citizenship through
her father, lost in the end. But Kevin believes
that we can patch different groups of Justices
together to produce a majority for him:

Under the reasoning adopted by five Justices of
the Supreme Court in Miller . . ., Kevin
Wedderburn has third-party standing to challenge
this gender-based classification. [See 523 U.S.
at 431-33 (Stevens, J., joined by Rehnquist,
C.J.), 473-74 (Breyer, J., joined by Souter &
Ginsburg, JJ., dissenting).] Under the reasoning
of another group of five Justices . . ., a
gender-based distinction like the one in INA sec.
321(a)(3) is subject to heightened or
intermediate scrutiny, which requires that the
distinction be tailored to protect an important
state interest. [See 523 U.S. at 451-52
(O'Connor, J., joined by Kennedy, J.), 476-81
(Breyer, J., joined by Souter & Ginsburg, JJ.,
dissenting).] Because the gender-based
classification in INA sec. 321(a)(3) lacks any
justification, the statute violates the parental
right to equal protection under the Constitution.

Kevin's supposition that we can put together two
concurring opinions with one dissenting opinion
to produce a five-Justice majority on each
contested issue overlooks the way the Justices
counted votes in Miller itself. How votes should
be aggregated on appellate courts is an
interesting and debatable question. See Maxwell
L. Stearns, Should Justices Ever Switch Votes?:
Miller v. Albright in Social Choice Perspective,
7 Sup. Ct. Econ. Rev. 87 (1999). How votes were
counted in Miller (and thus how an inferior court
should predict that they will be counted in a
similar future case) can be determined by

  Miller needed to win on each of three issues:
standing, redressability, and the merits. She
lost two votes on each, and thus lost a total of
six votes and the case. Justices O'Connor and
Kennedy believed that only the father has
standing, for the right to pass citizenship to
one's children belongs to the father and not the
child. 523 U.S. at 445-51. "The statute . . .
accords differential treatment to fathers and
mothers, not to sons and daughters." Id. at 445.
That is equally true of sec.321(a)(3). Justices
Scalia and Thomas believed that even if the
statute at issue in Miller were unconstitutional,
no remedy would be available because "the Court
has no power to provide the relief requested:
conferral of citizenship on a basis other than
that prescribed by Congress." 523 U.S. at 453.
That, too, is equally true of sec.321(a)(3).
Finally, Chief Justice Rehnquist and Justice
Stevens believed that the rational-basis test
applies to statutes such as sec.1409, and that a
distinction between citizen fathers and citizen
mothers of illegitimate children is rationally
related to legitimate governmental objectives.
523 U.S. at 433-45.

  None of the six Justices who voted against
Miller suggested that a constitutional challenge
to sec.321(a)(3) would receive more favorable
consideration, unless presented by the father.
And the three dissenting Justices implied that a
person in Kevin's position could lose even their
votes. Justice Breyer explained that his view on
standing was influenced by the fact that
Lorelyn's father, Charlie Miller, tried to sue in
his own name, only to have his suit dismissed for
lack of standing. By obstructing Charlie's suit,
Justice Breyer concluded, the Department of
Justice enabled Lorelyn to litigate. 523 U.S. at
473-74 (Breyer, J., joined by Souter & Ginsburg,
JJ., dissenting). Fitzroy Wedderburn, by
contrast, has not sought to bestow citizenship on
Kevin. Justice Breyer also thought it important
to both redressability and the merits that
Lorelyn claimed a right to citizenship at birth.
He distinguished situations in which events after
birth affect citizenship. Id. at 475, 481, 488-
89. Kevin Wedderburn could not count on Justice
Breyer's support.

  We have been supposing so far that
sec.321(a)(3) implements a form of sex
discrimination. That would be so if Kevin were
illegitimate. Then Julie Hines, but not Fitzroy
Wedderburn, could make Kevin Wedderburn a U.S.
citizen by naturalization. But Jamaica now deems
Kevin legitimate, and sec.321(a) treats him the
same way. The second option of sec.321(a)(3)
drops out. Legitimated children become citizens
if both parents naturalize, if the surviving
parent naturalizes, or if the parent having
"legal custody" naturalizes following the
parents' "legal separation." Nothing depends on
the sex of the parent (or parents) who naturalize
or have custody.

  To see this, suppose that Julie Hines had moved
to the United States with Kevin, while Fitzroy
Wedderburn had remained in Jamaica, and that
Julie later naturalized. Julie's immigration and
naturalization would not have affected Kevin's
citizenship because the second option under
sec.321(a)(3) does not apply to legitimated
children. By equating legitimated and legitimate
children in both sec.101(c)(1) and sec.321(a),
Congress avoided the kind of discrimination about
which Kevin complains. An illegitimate child who
has never been legitimated would have a claim
(though in light of Miller it would not be a
strong one); but a legitimated child such as
Kevin has no sex-discrimination claim at all.
Perhaps this explains the odd locution of Kevin's
core argument, which we have already quoted: that
sec.321(a)(3) "creates an invidious
classification between naturalized mothers of
illegitimate children, who can pass on the
benefit of citizenship, and naturalized fathers
of legitimated children, who cannot" (emphasis
added). In this formulation, legitimation and not
sex makes the difference. Anyway, the premise of
Kevin's contention is untrue. A father of a
legitimated child automatically passes
citizenship to the child, if the mother also
becomes a citizen, or has died, or if the father
acquired "legal custody" of the child following
a "legal separation" from the mother. A father
also may pass citizenship to a legitimated child
in his "legal custody" by applying for a
certificate of citizenship under sec.322.

  Kevin does not contend that Congress violated
the Constitution by equating legitimated and
legitimate children, and no such contention would
be tenable. The second clause of sec.321(a)(3)
does not discriminate against illegitimate
children; instead it gives them an extra route to
citizenship, one not enjoyed by legitimate (or
legitimated) offspring. In the end, the nub of
Kevin's argument must be that Fitzroy legitimated
him on the cheap: by acknowledging his status as
Kevin's parent rather than by marrying his
mother, a step that (given Jamaican law) made the
first option of sec.321(a)(3) unavailable to him.
Fitzroy could have compensated by using sec.322,
which permits a citizen who has a child in his
"legal custody" to obtain citizenship for a child
without regard to "legal separation" from the
other parent--though this may not have been
possible, since Kevin was not in Fitzroy's
custody at the time of the legitimating event.
Kevin himself, as a lawful permanent resident,
could have applied for citizenship. But none of
these things happened, and we have already
explained why the Constitution does not require
Congress to anticipate and accommodate every
possibility created by foreign matrimonial law.
Kevin is not a citizen of the United States, so
his petition for review is