FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RAJESHREE EUNICE ROY, AKA No. 15-72942 Rajeshree Eunice Willis, Petitioner, Agency No. A038-791-594 v. WILLIAM P. BARR, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 28, 2020 San Francisco, California Filed June 4, 2020 Before: J. Clifford Wallace, Ronald Lee Gilman,* and Susan P. Graber, Circuit Judges. Opinion by Judge Graber * The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 ROY V. BARR SUMMARY** Immigration Dismissing Rajeshree Roy’s petition for review of a decision of the Board of Immigration Appeals, the panel concluded that Petitioner failed to establish an equal protection violation with respect to 8 U.S.C. § 1432(a)(3), the applicable derivative-citizenship statute. Petitioner was born in Fiji in 1974 to two Fijian citizens who never married. In 1983, her father naturalized, and her mother formally relinquished parental rights and gave full custody to the father. In 1984, Petitioner entered the United states as a lawful permanent resident, but was later charged as removable based on criminal convictions. She moved to terminate proceedings, challenging the constitutionality of 8 U.S.C. § 1432(a)(3). An immigration judge denied the motion, and the BIA dismissed Petitioner’s appeal. Before this court, Petitioner argued that the second clause of § 1432(a)(3) discriminates by gender and legitimacy and thus violates the Constitution’s guarantee of equal protection. The panel noted that the court generally lacks jurisdiction to review a final order of removal against a non-citizen whose commission of a certain type of crime rendered her removable, 8 U.S.C. § 1252(a)(2)(C), but that the court retains jurisdiction to review legal questions, including whether § 1252(a)(2)(C)’s jurisdictional bar applies. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ROY V. BARR 3 The panel concluded that Petitioner’s gender- discrimination claim failed because she was not similarly situated to persons who derived citizenship under § 1432(a)(3)’s second clause. The panel explained that the clause discriminates on the basis of gender because it grants citizenship upon “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,” but does not grant citizenship in the converse scenario: upon the naturalization of the father if the child was born out of wedlock and the child’s maternity has not been established by legitimation. The panel noted that Petitioner did not, and could not, challenge this clearly disparate treatment because both her paternity and maternity were established during her youth. However, Petitioner argued that the clause discriminates because it does not contain an equivalent provision stating that a child derives citizenship upon the naturalization of the father where the child was born out of wedlock, and the mother relinquished paternal rights or gave up the child. ...
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