PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1461 _____________ JOSE FRANCISCO TINEO AKA Luis Alberto Padilla, AKA Jose Sanchez, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (A040-015-082) Immigration Judge: Walter A. Durling ______________ Argued January 19, 2018 ______________ Before: SMITH, Chief Judge, GREENAWAY, JR., and KRAUSE, Circuit Judges. (Opinion Filed: September 4, 2019) ______________ OPINION ______________ Charles N. Curcio [ARGUED] Curcio Law Firm 3547 Alpine Avenue NW Suite 104 Grand Rapids, MI 49544 Attorney for Petitioner Stefanie N. Hennes [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Attorney for Respondent GREENAWAY, JR., Circuit Judge. In plain terms, we are called to decide whether precluding a father from ever having his born-out-of-wedlock child derive citizenship through him can be squared with the equal-protection mandate of the Due Process Clause of the Fifth Amendment. In not so plain terms, under the now repealed 8 U.S.C. § 1432(a)(2), a “child” born outside of the United States to noncitizen parents became a citizen upon the naturalization of 2 her surviving parent if one of her parents was deceased.1 Section 1101(c)(1) in turn defined “child” as including a child born out of wedlock only in so far as the child was legitimated under the “law of the child’s residence or domicile” or “the law of the father’s residence or domicile . . . except as otherwise provided in . . .” § 1432. 8 U.S.C. § 1101(c)(1). Section 1432(a)(3) rounded out the triumvirate and exempted mothers of born-out-of-wedlock children from the legitimation requirement by expressly adding that “the naturalization of the mother” was sufficient “if the child was born out of wedlock and the paternity of the child has not been established by legitimation . . . .” See § 1432(a)(3). As a result, §§ 1101(c)(1), 1432(a)(2) and (a)(3) treated women and men differently: a naturalized mother could transmit her citizenship to her out-of-wedlock child, regardless of whether the father was alive; whereas a naturalized father in the same position had the additional requirement of having to legitimate the child in order to transmit his citizenship. Our present concern is not with this differential treatment, however. That affirmative steps to verify paternity, including legitimation, may be taken if a citizen parent is an unwed father has withstood constitutional scrutiny in the past, on the basis that the relation between a mother and a child “is verifiable from the birth itself,” and likewise “the opportunity 1 That is, provided that (1) the naturalization takes place while the child is under eighteen years old, and (2) (a) the child is residing in the United States as a lawful permanent resident when the parent naturalizes or (b) thereafter begins to reside permanently while under the age of eighteen. 8 U.S.C. § 1432(a)(4) & (5). 3 for the development of a relationship ...
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