Howard Paul Levy v. U.S. Attorney General

Case: 16-14726 Date Filed: 09/21/2017 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 16-14726 & 16-14972 Non-Argument Calendar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 ...

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