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       In not so plain terms, under the now repealed 8 U.S.C.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 between citizen parent
and child . . . .” Nguyen v. INS., 

, 62, 65 (2001);
see also Trimble v. Gordon, 

, 771 (1977) (“The
more serious problems of proving paternity might justify a
more demanding standard for illegitimate children claiming
under their fathers’ estates than that required for [those]
claiming under their mothers’ estates . . . .” (emphasis added)).
Rather, like in Trimble, the present concern is with a father
being forever precluded from having his out-of-wedlock child
derive through him. This problem only arises where the child’s
mother is deceased, and the only avenue for legitimation under
the relevant law is through the marriage of the parents. In that
instance, naturalized fathers cannot transmit their citizenship
to their out-of-wedlock children as a result of the interplay
between §§ 1101(c) and 1432(a)(2), whereas naturalized
mothers can via at least § 1432 (a)(3).

        Such is the case with the petition before us. Petitioner
Jose Francisco Tineo was born in the Dominican Republic to
unwed noncitizen parents who never married. His father
moved to the United States and naturalized. His noncitizen
mother soon after passed away. At the time, under the law of
either his or his father’s residence or domicile—the Dominican
Republic and New York—legitimation could only occur if his
birth parents married. So Tineo’s father was forever precluded
from having his son derive citizenship through him, despite
being a citizen and having cared for his son until the child was
21 years old. On the cusp of being removed from the United
States as a noncitizen, Tineo brings this Fifth Amendment
challenge to the relevant provisions on behalf of his now
deceased naturalized father.           We hold that, in this
circumstance, the interplay of §§ 1101(c)(1), 1432(a)(2) and
(a)(3) cannot be squared with the equal-protection mandate of




                               4
the Due Process Clause of the Fifth Amendment. We will
therefore grant Tineo’s petition.

                          I. Background

                 A. Arrival in the United States

       Tineo was born in the Dominican Republic on January
16, 1969. His parents, both citizens of the Dominican
Republic, never married. His father, Felipe Tineo, moved to
the United States and became a naturalized U.S. citizen in
1981. Two years later, his father married a legal permanent
resident.

        Tineo came to live with his father once his birth mother
died in 1984. He was admitted to the United States as a lawful
permanent resident on June 15, 1985, pursuant to an alien
relative petition filed by his stepmother. He was 15 years old
at the time and lived with his father until he turned 21 in 1990.

                     B. Removal Proceedings

       Felipe Tineo died an American in 2006. The question
of his son’s citizenship has come up on two occasions: once
before his death and once after. Both were in the context of
removal proceedings. This is in part because only noncitizens
may be removed. See 8 U.S.C. § 1229a(a)(1); see also Ng
Fung Ho v. White, 

, 284 (1922) (“Jurisdiction in
the executive to order [removal] exists only if the person . . . is
a [noncitizen]. An assertion of U.S. citizenship is thus a denial
of an essential jurisdictional fact in a [removal] proceeding.”
(internal quotation marks omitted)) (quoted in Minasyan v.
Gonzales, 

, 1075 (9th Cir. 2005)); Gonzalez-
Alarcon v. Macias, 

, 1272 (10th Cir. 2018)




                                5
(noting that citizenship constitutes the denial of an essential
jurisdictional fact in a removal proceeding because only
noncitizens are removable). As a consequence, immigration
judges terminate removal proceedings where the government
cannot demonstrate that a petitioner is a removable noncitizen.
See 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 240.8(a); see also
Dessouki v. Att’y Gen. of U.S., 

, 966 (3d Cir.
2019) (“[T]he government failed to prove that Dessouki was [a
noncitizen]. So an immigration judge terminated his removal
proceedings.”).

                                1.

        The first proceeding occurred when Tineo was
convicted for the sale of a controlled substance in New York
state court on October 19, 1993. He was issued a Notice to
Appear (“NTA”) dated April 20, 2000 and placed in removal
proceedings based on that conviction. The proceeding was
terminated on November 28, 2001, however, because, as proof
of his citizenship, Tineo produced a United States passport that
was issued to him in 2001.2


       2
         Some confusion exists in the record as to the status of
this passport. While the NTA charges that Tineo obtained this
passport by using fraudulent documents, there is no evidence
to support this claim. The passport application indicates that
the only documents attached as exhibits were Tineo’s birth
certificate, his mother’s death certificate, his father’s
naturalization certificate, and a “memo of law,” which is not in
the record before us. A.R. 302.

        In addition, Tineo clearly disagreed with the IJ when the
IJ stated that he had “falsely represented that [he] was a [U.S.]




                               6
                                2.

      The second occasion arose pursuant to an NTA issued
on October 14, 2014. The NTA charged several bases for
Tineo’s removal, stemming from three events.3

       First, Tineo was convicted on July 8, 2002, of the sale
of a controlled substance in New York state court, thus making
him inadmissible pursuant to 8 U.S.C. §§ 1182(a)(2)(A)(i)(II)
and (a)(2)(C).




citizen to gain entry to this country.” A.R. 111. Thus, we
cannot find support for the IJ’s statement that Tineo admitted
to obtaining this passport using fraudulent documents. While
not germane to our ultimate decision, we nonetheless wish to
note the lack of any evidence in the record of fraud in
connection with Tineo’s original passport application. As far
as we can discern, the issuance of this passport in 2001 did not
occur because of any fraudulent misrepresentations made by
Tineo.
       3
         Since, according to the government, Tineo was not
admitted in 2008 when he returned to the United States from a
trip abroad, the statutes cited in the NTA involve grounds for
inadmissibility. Because the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 eliminated separate
exclusion and deportation proceedings, creating instead a
single removal proceeding, Austin T. Fragomen, et al.,
Fragomen on Immigration Fundamentals: A Guide to Law and
Practice § 1:3.3[D] (PLI) (5th ed. 2019), this technicality does
not impact our analysis.




                               7
       Second, on January 15, 2008, upon returning to the
United States after a trip abroad, Tineo presented the passport
issued to him in 2001. The NTA charged that “[i]n doing so,
[he] falsely represented [him]self to be a [U.S.] Citizen . . . to
gain entry into the United States,” thus violating §
1182(a)(6)(C)(i) and (ii). A.R. 890. The NTA also charged
Tineo as being an alien present in the United States without
being admitted or paroled, in violation of § 1182(a)(6)(A)(i).
This violation was based on the fact that, because Tineo used a
United States passport to enter the country and “U.S. Citizens
are not inspected, [Tineo] entered without being admitted or
paroled after inspection by an Immigration Officer.” A.R. 377.

       The third event providing a basis for Tineo’s removal
was his conviction in 2014 of passport fraud and aggravated
identity theft in the Eastern District of Pennsylvania. This
conviction arose when, after his passport expired, Tineo
attempted to obtain a new passport using the name Luis Padilla.
Tineo presented several identification documents in the name
Luis Padilla in support of his passport application. Based on
this conviction, the NTA charged Tineo as inadmissible,
pursuant to § 1182(a)(2)(A)(i)(I).

                    C. Challenges to Removal

       Appearing pro se before the immigration judge, Tineo
admitted to his criminal convictions, but challenged his
removability on the grounds that (1) he derived citizenship
through his father and (2) this was evinced by his legally
obtained first passport.4


       4
        Tineo also sought relief pursuant to the Convention
Against Torture but did not raise that claim in his opening brief




                                8
                                1.

      His derivative citizenship claim was based on former 8
U.S.C. § 1432(a),5 which provides that:

       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:



before this Court. It is therefore waived. See United States v.
Pelullo, 

, 222 (3d Cir. 2005) (“It is well settled
that an appellant’s failure to identify or argue an issue in his
opening brief constitutes waiver of that issue on appeal.”)
(citations omitted).
       5
           As we have noted,

       Congress repealed section 1432(a) by enacting
       the Child Citizenship Act of 2000 [(“CCA”)], §
       103, [8 U.S.C. §§ 1431–33 (2001)]. The [CCA]
       became effective on February 27, 2001, 120 days
       following its enactment. Because all relevant
       events respecting [Petitioner]’s claimed
       derivative citizenship occurred prior to the
       [CCA]’s effective date, [§] 1432(a) controls our
       analysis.

Brandao v. Att’y. Gen. of U.S., 

, 428 n.1 (3d Cir.
2011).




                               9
       (1) The naturalization of both parents; or

       (2) The naturalization of the surviving parent if
       one of the parents is deceased;[6] 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

       6
         Read literally, § 1432(a)(2) appears to require that first
one parent has to die and then the second parent has to
naturalize. But the United States Citizenship and Immigration
Services (“USCIS”) has determined that the order of events
does not matter, so long as all events occur before the child’s
eighteenth birthday. Matter of Baires-Larios, 24 I. & N. Dec.
467, 470 (BIA 2008) (quoting Adjudicator’s Field Manual, ch.
71, § 71.1(d)(2), U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,                       (Feb.                      2008),
http://www.uscis.gov/propub/DocView/afmid/1/172).             The
parties do not question this practice.




                                10
      to reside permanently in the United States while
      under the age of eighteen years.

8 U.S.C. § 1432(a) (repealed by Pub. L. No. 106-395, Title I,
§ 103(a), Oct. 30, 2000, 114 Stat. 1632) (emphasis added).

      The statute defines “child” as meaning:

      an unmarried person under twenty-one years of
      age and includes a child legitimated under the
      law of the child’s residence or domicile, or under
      the law of the father’s residence or domicile,
      whether in the United States or elsewhere . . . .

§ 1101(c)(1) (emphasis added).7



      7
         The definition continues to also include a child
adopted in the United States if, as to both adopted and
legitimated children and except as otherwise provided in
sections 1431 and 1432 of the title:

      such legitimation or adoption takes place before
      the child reaches the age of 16 years (except to
      the extent that the child is described in
      subparagraph (E)(ii) or (F)(ii) of subsection
      (b)(1)), and the child is in the legal custody of the
      legitimating or adopting parent or parents at the
      time of such legitimation or adoption.

§ 1101(c)(1).




                               11
        The United States Citizenship and Immigration
Services (“USCIS”) interpreted the language beginning with
“and includes” as restricting the meaning of child to exclude
children born out of wedlock who were not legitimated,
regardless of whether they were unmarried and under the age
of 21. When Tineo filed an application for a certificate of
citizenship—also known as a Form N-600—in 2007, USCIS
denied his application because he was “a child born out of
wedlock” and “had not been legitimated by his [U.S.] citizen
father . . . .” App 4. In denying Tineo’s derivative citizenship
claim, the Immigration Judge (IJ) stated that “[t]he CIS denial
letter [regarding the N-600 application] . . . correctly noted the
law.” App. 10. That is, “children born out of wedlock who
have not been legitimated are not included in the definition of
‘child’ under the INA.” App. 10.8



       8
         As Tineo points out, this reading is counterintuitive
and counter-textual, for it requires a tortured construction of
the phrase “and includes.” It also implies that a child born out
of wedlock that is seeking to derive citizenship through her
mother must also be legitimated under the law of her own
residence or domicile or that of her father. This implication
came to bear when Congress passed the CCA.

        The CCA repealed former § 1432(a) and enacted §
1431(a) in its place. The new provision did away with §
1432(a)(3) such that it remained an open question as to whether
§ 1101(c)(1)’s legitimation requirement would extend to
mothers. The White House Office of Legal Counsel examined
the issue, labeled § 1101(c)(1) “poorly drafted,” and outlined a
number of permissible interpretations that would avoid
imposing a legitimation requirement on mothers.              See




                               12
        At the time Tineo was born, the only way a child could
be legitimated in the Dominican Republic was through the
marriage of the parents prior to the child’s sixteenth birthday.
New York also required marriage of the parents in order to
legitimate a child. Tineo attempted to establish that his
parents, who were never legally married, had a common law
marriage. He provided a letter from the Dominican Republic
consulate, noting that “common-law marriage is recognized by
our Supreme Court through a judgment dated October 17,
2001, in the case of a lawsuit against an insurance company
due to the death of a partner.” App. 11, A.R. 943. However,
there was no evidence that this decision was retroactive such
that it would apply to prior unions. The IJ thus determined that
Tineo’s parents did not have a common law marriage at the
relevant time.

        The Board of Immigration Appeals (“BIA”) affirmed
the IJ’s decision. It found “no clear error in the Immigration
Judge’s factual finding that the respondent has not presented
evidence of legitimization . . . , such that he has not established
that he was a ‘child’ for purposes of deriving citizenship
through his father.” App. 6. Tineo argued that the definition
of “child” “creates an unconstitutional gender-based
distinction between mothers and fathers, in violation of the
equal protection clause of the Constitution.” 

BIA
concluded that it lacked “jurisdiction to entertain such a
challenge.” 

Unlegitimated Children            for   Derivative
Citizenship, 27 O.L.C. 136 (2003).




                                13
                                 2.

        Tineo further argued that the IJ erred in not finding that
he was a U.S. citizen based on the issuance of his first passport.
Relying on Delmore v. Brownell, 

(3d Cir. 1956),
Matter of Villanueva, 19 I. & N. Dec. 101 (BIA 1984), and
Matter of Peralta, 10 I. & N. Dec. 43 (BIA 1962), Tineo’s view
was “that unless it is void on its face, a valid United States
passport issued to an individual as a citizen of the United States
is not subject to collateral attack in administrative immigration
proceedings, but constitutes conclusive proof of such person’s
[U.S.] citizenship.” App. 5. The BIA rejected this argument,
based on new precedent from this Court in United States v.
Moreno, 

(3d Cir. 2013). In Moreno, we held that
“a passport constitutes conclusive proof of citizenship only if
the passport was issued to a U.S. citizen.” 

           D. Petition for Review and Motion to Remand

       Tineo filed a timely petition for review with this Court.
In lieu of filing a brief, the government moved to remand to
allow the BIA “to provide a more fulsome explanation as to
what weight should be afforded a previously-valid, but expired
passport in establishing citizenship.” Mot. to Remand 1. The
case was then stayed, pending the decision in Sessions v.

       9
          We also note that our precedent in Delmore did not
hold that a passport was conclusive proof of citizenship.
Rather, we stated that “[o]nce the United States has determined
that an individual is a citizen, it should be required to disprove
its own determination by clear, unequivocal, and convincing
evidence.” 

(internal quotation marks
omitted).




                               14
Morales-Santana, 

(2017). Upon issuance of
the Supreme Court’s decision, Tineo filed a new opening brief,
to which the government replied. In its brief, the government
noted that it no longer believed remand was necessary since the
only issues presented involved legal questions, which this
Court could address without input from the BIA. In light of
this admission, we deny the motion to remand.

        II. Jurisdiction and Standard/Scope of Review

                         A. Jurisdiction

        We have jurisdiction to decide a nationality claim under
8 U.S.C. § 1252(b)(5)(A), since “no genuine [dispute] of
material fact about the petitioner’s nationality is presented.”

–67 (affirming that “§ 1252(b)(5)(A)
is best read as granting jurisdiction”). We also have
jurisdiction to review constitutional claims under §
1252(a)(2)(D).

        That Tineo’s claim is premised on his father’s
constitutional rights is of no moment. Typically, a party has to
assert his own legal rights and cannot rely on the legal rights
of third parties. 

. But, as
the Supreme Court articulated,

       we recognize an exception where, as here, the
       party asserting the right has a close relationship
       with the person who possesses the right [and]
       there is a hindrance to the possessor’s ability to
       protect his own interests.

original) (internal quotation marks omitted)
(quoting Kowalski v. Tesmer, 

, 130 (2004)). As




                              15
Felipe Tineo’s son, Tineo satisfies the “close relationship”
requirement, while his father’s death establishes the hindrance
to his father’s ability to assert this claim on his own. See 

petitioner-child as the “obvious claimant” and
“best available proponent” of the equal protection rights of his
deceased father whose “failure to assert a claim in his own right
stem[med] from disability, not disinterest (internal quotation
marks and citations omitted)); see also Breyer v. Meissner, 

, 423 (3d Cir. 2000) (holding that the petitioner could
assert his mother’s equal protection rights because “his own
alleged deprivation of citizenship as a result of discrimination
against his mother constitute[d] injury-in-fact, the closeness of
his relationship to his mother [was] obvious, and his mother’s
death most definitely constitute[d] a hindrance to her assertion
of her own rights”).

               B. Standard and Scope of Review

       Though he asks us to employ any number of
mechanisms to cure the constitutional infirmity he asserts,
Tineo’s challenge remains that, in conjunction with the
government’s construction of “child,” as defined in §
1101(c)(1), and the prior legitimation laws of New York and
the Dominican Republic, §§ 1432(a)(2) and (a)(3) prohibited a
father from transmitting his citizenship to his born-out-of-
wedlock child in his care when the child’s mother was
deceased, while allowing similarly situated mothers to so
transmit. Appellant’s Op. Br. 48. Tineo’s is thus a challenge
to a citizenship-determining “legislation that differentiate[d]
on the basis of gender,” 

,
and that did so in an allegedly unconstitutional manner in his
case.

                                1.




                               16
       The standard of review for such a challenge is
intermediate scrutiny. That is, the legislation will only
withstand constitutional scrutiny if its defender shows “at least
that the challenged classification serves important
governmental objectives and that the discriminatory means
employed are substantially related to the achievement of those
objectives.” 

marks and citations
omitted).

       This is not merely because the legislation differentiates
on the basis of gender. Indeed, because of Congress’s “broad
power to admit or exclude [noncitizens],” statutes governing
immigration benefits to noncitizens need only be supported by
a rational basis, even where they differentiate on the basis of
gender. See Fiallo v. Bell, 

, 788–89, 792–96
(1977). Rather, it is also because, as was the case in Morales-
Santana, Tineo claims that “he is” and has for some time been
“a U.S. citizen.” See 

–94
(applying an “exacting standard of review” to “a claim of th[e
same] order”); see also Dent v. Sessions, 

, 1081
(9th Cir. 2018) (overturning prior ruling that rational basis
review applied even where the relevant statute governs who is
and is not a citizen in light of Morales-Santana). The
government concedes as much. See Resp’t Br. 33.

       Similar to the Ninth Circuit, we previously assessed
whether “[f]ormer 8 U.S.C. § 1432’s restrictions on derivative
citizenship based solely on the father’s naturalization [were]
rationally related” to the reasons proffered by the government.
Catwell v. Att’y Gen. of U.S., 

, 211 (3d Cir. 2010)
(emphasis added). Catwell did involve the slightly different
circumstance of a noncitizen challenging a citizenship-
conferring statute on his own behalf, 

(“Petitioner




                               17
contends that former 8 U.S.C. § 1432(a)(3) ‘unconstitutionally
discriminates against [him] based upon legitimacy and
gender.’”) (quoting Catwell’s Br. 53). That is enough to
distinguish it from Breyer, which applied intermediate scrutiny
where a noncitizen presented a gender-based equal protection
challenge to a citizenship-conferring statute because the
challenge was on behalf of his citizen 

–
24. But not from Morales-Santana. This is because, unlike
Breyer, there is no indication that Morales-Santana’s
application of intermediate scrutiny was premised on anything
other than the fact that the petitioner’s challenge was gender-
based and he “claim[ed] he [was] . . . a U.S. citizen.” 137 S.
Ct. at 1693–94.

       So we too must relent: in accordance with United States
v. Tann, 

, 541 (3d Cir. 2009), based on intervening
Supreme Court precedent, this panel declines to follow our
Court’s precedential decision in Catwell. We will apply
intermediate scrutiny in this case and do so because Tineo
presents a gender-based equal protection challenge and claims
that he is a U.S. citizen.

                               2.

       The scope of the challenge is as-applied. This entails a
concession that the statute at issue may be constitutional in
many of its applications but contends “that its application to a
particular person under particular circumstances deprived that
person of a constitutional right.” United States v. Marcavage,

, 273 (3d Cir. 2010) (citation omitted). In
contrast, a facial challenge “tests a law’s constitutionality
based on its text alone and does not consider the facts or
circumstances of a particular case.” 

Properly understood, Tineo’s challenge turns on the particular




                              18
circumstances at hand: the statute’s interaction with the New
York and Dominican Republic laws and his particular family
circumstances.

        By contrast, many jurisdictions have abolished
distinctions between legitimated and unlegitimated children or
eased the burden on unwed fathers to legitimate their children.
See, e.g., Brandao v. Att’y Gen. of U.S., 

, 430 (3d
Cir. 2011) (abolished in Cape Verde); Anderson v. Holder, 

, 1101–02 (9th Cir. 2012) (eased in Arizona).
Indeed, in 2015, the BIA observed the “growing consensus—
both in the United States and abroad—against labeling children
[]‘legitimate’ and ‘illegitimate’ by virtue of the marital status
of their parents.” Matter of Cross, 26 I. & N. Dec. 485, 492
(BIA 2015). So it eased the burden on unwed fathers in some
jurisdictions by holding that, for the purposes of § 1101(c)(1),
a father need not follow the formal process required to
legitimate a child if that jurisdiction has eliminated all legal
distinctions between “legitimate” and “illegitimate” children.
Id.10 Additionally, as the government points out, as early as
1940, nearly half of all states permitted a father to take some
action other than marrying the child’s mother in order to
legitimate a child born out of wedlock. Resp’t Br. 41 (citing
Nationality Manual § 1041.861).




       10
          The burden still remains in jurisdictions that maintain
the distinction, since § 1101(c)(1) has not been amended.




                               19
                         III.    Discussion

                            A. Challenge

        Moving to the challenge itself, it is twofold. Tineo first
asks that we avoid the constitutional question by rejecting the
government’s construction of “child,” as defined in 8 U.S.C. §
1101(c)(1), and instead construe the provision as including
anyone who is unmarried and under the age of 21.
Alternatively, he asks that we deem the interplay between §§
1101(c)(1) and 1432(a) unconstitutional as applied to his
father.

                                  1.

        Section 1101(c)(1) is the linchpin of the denial of
Tineo’s constitutional avoidance argument. This is because §
1101(c)(1) has been interpreted to require that a child born out
of wedlock must be legitimated in order to be considered a
“child” as incorporated in § 1432(a). So read, it tethers
legitimation to the law of the residence or domicile of the father
or child. In the context of laws that only permit legitimation
through marriage, then, § 1101(c)(1) causes § 1432(a)(2) to
prevent a surviving father from ever transmitting citizenship to
his child “if the child remained unlegitimated at the time of the
mother’s death.” Pet’r’s Op. Br. 16. Further, “[t]he father
would be powerless to change this result by adopting or
legitimating the child, since adoption is unavailable to
biological fathers . . . .” 

In contrast, a naturalized
mother may transmit citizenship to her “child [who] was born
out of wedlock and [whose] paternity . . . has not been
established by legitimation.” § 1432(a)(3).




                                20
       We agree that the government’s construction of §
1101(c)(1) plays a role in the alleged constitutional violation,
but pinning it all on that provision in the way Tineo proposes
would be strong medicine for what is an otherwise narrow
infirmity.

        Under the government’s construction, § 1101(c)(1)
merely imposes a legitimation requirement on the fathers of
children born out of wedlock. While this imposition engenders
a differentiation between women and men, it is akin to gender-
based differentiation that has withstood constitutional scrutiny.
Indeed, in Nguyen, the Supreme Court upheld imposing
affirmative steps, including legitimation, on unwed fathers but
not mothers so long as they were not “onerous” and did not
create “inordinate and unnecessary hurdles to conferral of
citizenship on the children of citizen fathers.” 

, 65, 70–71. This is because the relation between a
mother and a child “is verifiable from the birth itself,” and the
same is true of “the opportunity for the development of a
relationship between citizen parent and child . . . .” 

65. These same biological differences led the Court to opine
in Trimble that “[t]he more serious problems of proving
paternity might justify a more demanding standard for
illegitimate children claiming under their fathers’ estates than
that required for [those] claiming under their mothers’ estates .
. . 

(emphasis added).

       Assuming arguendo that we would be able to,
construing § 1101(c)(1) in the way Tineo proposes would
effectively invalidate the legitimation requirement in most
instances. Rather than applying in every case in which a child
is born out of wedlock and only the father naturalizes, the
requirement would only apply where this was true and the out-
of-wedlock child married or was over the age of 21. When




                               21
coupled with the requirement that the parent’s naturalization
needs to happen while the child is under eighteen years of age,
see § 1432(a)(4), the requirement would become a shell of its
former self. This effect is even broader when one considers
that § 1101(c)(1) continues to play a role in the renewed §
1431(a), which also requires that the child be “under the age of
eighteen years” when the parent naturalizes. § 1431(a)(2).

       Regardless of the merits (or lack thereof) of imposing a
legitimation requirement on the fathers of children born out of
wedlock, invalidating a provision’s operation in a vast number
of instances across two different statutes, one of which is not
at issue, is too strong a medicine for avoiding or curing the
otherwise narrow infirmity Tineo has identified. Tineo’s father
was unable to have his born-out-of-wedlock child derive
citizenship through him, whereas a similarly situated mother
would have faced no such roadblock. Though § 1101(c)(1) sets
the stage for this disparate treatment, § 1432(a)(2) and (a)(3)
are the main acts. We therefore consider the infirmity alleged
by Tineo, with due attention to how the provisions operate in
concert.

                                 2.

          As we have noted in prior cases, “the standard of review
. . . is often outcome determinative.” Connelly v. Steel Valley
Sch. Dist., 

, 213 (3d Cir. 2013). This case is no
different. To survive the challenge Tineo presents, the
government is required to show that §§ 1101(c)(1) and
1432(a)’s classification “serve an important governmental
interest today.” 

. This is
because, “in interpreting the Equal Protection Clause, the
[Supreme] Court has recognized that new insights and societal
understandings can reveal unjustified inequality . . . that once




                               22
passed unnoticed and unchallenged.” Obergefell v. Hodges,

, 2603 (2015) (quoted in 

). This is a tall order for the government, as it
requires justifying treating Tineo’s father as being so different
from a similarly situated mother of an out-of-wedlock child
that Tineo’s father ought to never be able to transmit his
citizenship to Tineo.

        Unsurprisingly, the order is too tall: the government’s
justification is unavailing in these circumstances.

        It proffers that the classification is a tailored means by
Congress to avoid “usurping the traditional province of states,
and foreign countries, to regulate domestic relationships.”
Resp’t Br. 35–36, 38. In essence, Congress wanted to “defer
to states’ laws on legitimacy” that “did not permit a[n
unlegitimated] child to inherit from his . . . father.” 

This justification is tantamount to asserting that the federal
government has an important interest in perpetuating
discrimination under state or foreign law against the fathers of
nonmarital children, a premise that is at odds with Supreme
Court precedent. See 

n.25. As the Court observed, “[d]istinctions based on parents’
marital status . . . are subject to the same heightened scrutiny
as distinctions based on gender.” Id.; cf. Cabrera v. Att’y Gen.
of U.S., 

, 404 (3d Cir. 2019) (applying rational
basis review to disparate treatment of biological and adoptive
children in the context of 8 U.S.C. § 1409). Permitting the
government to impose one dubious classification merely to
entrench another would be absurd.

       Even if this interest did not equate to the perpetuation
of discrimination against unwed fathers, the government has
not articulated how deferring to state legitimation rules




                               23
constitutes an important governmental interest “today.” See 

Although some states have not formally abolished the
distinction between legitimated and unlegitimated children,
these classifications now have little import under state law:
long gone are the days when unlegitimated children simply
could not inherit. See, e.g., N.Y. Est. Powers & Trs. Law § 4-
1.2(2)(C) (allowing unlegitimated children to inherit if they
provide results from a paternity test or “evidence that the father
openly and notoriously acknowledged the child as his own”).
But, when coupled with the circumstances of Tineo’s case, §§
1101(c)(1) and 1432(a)’s legitimation rule turns these largely
meaningless vestiges of a bygone era into the defining
characteristic for whether naturalized fathers can ever transmit
citizenship to their born-out-of-wedlock children.

        Our dissenting colleague would like us to cast this
reality aside because, “in legislating, Congress is not required
to anticipate every potential outcome that results from the
application of a statute in order for it to pass constitutional
muster.” Diss. Op. 5.11 The view originates from a passage in


       11
          To be clear, our colleague is not suggesting that
Congress need not consider the Constitution when legislating.
This proposition finds no support in our jurisprudence, the
Supreme Court’s, or that of any of our sister circuits. It is
elemental that Congress cannot legislate beyond the limits set
by the Constitution. Marbury v. Madison, 

, 138
(1803) (“An act of congress repugnant to the constitution
cannot become law.” (emphasis added)). So, while it may well
be true that Congress is not required to anticipate every
potential outcome that results from the application of its
statutes, we are obliged to hold it accountable for those
applications that are unconstitutional. See, e.g., 

                               24
Nguyen. The Court had acknowledged the importance of
assuring the existence of a relationship between citizen parent
and child, both as a biological matter and in terms of the
opportunity for a true relationship to develop between the two.

, 65 (acknowledging that the biological
relationship between a mother and child is “verifiable from the
birth itself,” and “likewise the opportunity for the development
of a relationship between citizen parent and child”). In
response, the “petitioners assert[ed] that, although a mother
will know of her child’s birth, knowledge that one is a parent,
no matter how it is acquired, does not guarantee a relationship
with one’s child.” 

The Court dismissed this assertion
on the ground that, “even [if] one conceive[d] of the interest
Congress pursue[d] as establishment of a real, practical
relationship of considerable substance between parent and
child in every case,” its chosen means would “meet[] the equal
protection standard . . . so long as it is substantially related to
the achievement of the governmental objective in question.”

(emphases added) (internal quotation marks and
citations omitted). It then clarified this point by explaining that
the means-end fit required to survive intermediate scrutiny
does not require that the means be “capable of achieving [the]
ultimate objective in every instance.” 

as the background, there is no disagreement
that the existence of a relationship between citizen parent and
child is an important governmental objective, particularly in
the “difficult context of conferring citizenship on a vast

(“[I]f a law be in opposition to the constitution [and] both the
law and the constitution apply to a particular case, . . . the court
must determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty.”).




                                25
number of persons.” 

. We also agree that the means-
end fit required to survive intermediate scrutiny does not mean
that 8 U.S.C. §§ 1101(c)(1) and 1432(a)(2) and (a)(3) have to
ensure that this relationship exists in every instance. But Tineo
does not contend otherwise: he simply asks us to determine
whether the means-end fit was sufficiently close when those
provisions did not permit his father to transmit citizenship to
him, without providing any practicable way for his father to
demonstrate that the requisite relationship existed between the
two.

        To that effect, the Supreme Court has long recognized
that “laws treating fathers and mothers differently may not be
constitutionally applied . . . where the mother and father are in
fact similarly situated with regard to their relationship with the
child.” 

n. 12 (2017)
(alteration in original) (internal quotation marks omitted)
(quoting Lehr v. Robertson, 

, 267 (1983)). It thus
saw no equal protection problem where an unwed father who
“ha[d] never supported and rarely seen” his child complained
that he was entitled to receive notice of a proceeding to adopt
her. 

. The Court concluded that “the New
York statutes adequately protected appellant’s inchoate
interest in establishing a relationship with [his daughter],” and
thus found “no merit in the claim that his constitutional rights
were offended.” 

see also 

n.12 (explaining that “[t]he ‘similarly situated’
condition was not satisfied in Lehr, [because] the father in that
case had ‘never established any custodial, personal, or
financial relationship’ with the child”). Notably, the statutes
provided that the father would have been entitled to notice had
he done any one of the following: (1) filed his name in the
state’s putative father registry, (2) established paternity by




                               26
adjudication, (3) been identified as the child’s father on her
birth certificate, (4) openly lived with the child’s mother and
held himself out to be her father, (5) identified as the father in
a sworn statement, or (6) married the child’s mother before she
turned six months old. 

        Tellingly, the Court took the opposite view with an
Illinois statute that outright terminated the custody rights of an
unwed father who had “lived with his children all their lives
and had lived with their mother for eighteen years,” and
thereby rendered “the nature of the actual relationship between
parent and child . . . completely irrelevant.” 

–59. (emphasis added) (referring to Stanley v. Illinois, 

, 655 (1972)). Specifically, the statute permitted the
state to “circumvent neglect proceedings on the theory that an
unwed father [was] not a ‘parent’ whose existing relationship
with his children must be considered.” 

–50. As the Court put it, such a law “conclusively
presumed every father of a child born out of wedlock to be an
unfit person to have custody of his children.” 

(emphasis added).               The Court found this
“constitutionally repugnant,” because even if “most unmarried
fathers are unsuitable and neglectful parents . . . some are
wholly suited to have custody of their children,” and the “State
readily concede[d]” that there was no evidence that the father
“[was] or ha[d] been a neglectful father who ha[d] not cared
for his children.” 

, 654–55.

       Nothing in Nguyen suggests that the Court has departed
from this course. Like the New York statutes in Lehr, 8 U.S.C.
§ 1409(a)(4) imposed what the Court characterized as a
“minimal” burden on unwed fathers to demonstrate the
existence of a relationship with their child as a prerequisite for
transmitting citizenship. 

. The father




                               27
could take the “least onerous of . . . the[] simple steps and
alternatives” of legitimating the child under the law of the
child’s residence or domicile, acknowledging paternity in
writing under oath, or establishing paternity by adjudication of
a competent court. 

69–71 (emphases added). In
contrast, the burden imposed on Tineo’s father to demonstrate
the existence of a relationship to Tineo was not only onerous,
it was impossible. Indeed, like Stanley, the actual relationship
between Felipe Tineo and his child was rendered completely
irrelevant, and he was conclusively presumed to be unfit to
transmit citizenship to his child.

      We thus maintain that, when applied to his
circumstance, the provisions from which such a burden and
presumption stem—§§ 1101(c)(1) and 1432(a)(2) and (a)(3)—
cannot be squared with the equal-protection mandate of the
Due Process Clause of the Fifth Amendment.

                            B. Remedy

        Anticipating this result, the government suggests that
we “should not fashion a remedy and, instead, leave that work
to Congress.” Resp’t Br. 48. In so suggesting, the government
advances the view that we do not have the “power to provide
relief of the sort requested in this [petition]—namely, conferral
of citizenship on a basis other than that prescribed by
Congress.” 

(Thomas, J.,
joined by Alito, J., concurring in part) (internal quotation
marks and citations omitted). We do not subscribe to this view.
See 

(finding an equal protection
violation in a derivative citizenship statute, and providing that,
pursuant to additional findings by the District Court, the
noncitizen petitioner would “be entitled to American
citizenship relating back to his birth”).




                               28
        As an initial matter, a judgment in Tineo’s favor “would
confirm [his] pre-existing citizenship rather than grant [him]
rights that [he] does not now possess.” Miller v. Albright, 

, 432 (1998) (opinion of Stevens, J.). Or, more
precisely, what Tineo seeks is “severance of the offending
provisions so that the statute, free of its constitutional defect,
can operate to determine whether citizenship was transmitted”
by his father. 

–96 (O’Connor, J.,
dissenting) (citing 

–89) (Breyer, J.,
dissenting)); Oral Arg. Audio 9:38–10:04. Indeed, as long ago
as 1898, the Supreme Court invalidated the application of the
Chinese Exclusion Act to a man born in the United States and
who therefore, under the Fourteenth Amendment, had been a
citizen since birth. See United States v. Wong Kim Ark, 

, 704 (1898).

        More to the point, the view espoused by the government
has never commanded a majority of the Supreme Court, and,
in fact, as the authoring Justice Scalia bemoaned, “[a] majority
of the Justices . . . concluded otherwise in” Miller and “the
Court . . . proceed[ed] on the same assumption” in Nguyen.

–74 (Scalia, J., joined by Thomas, J.,
concurring) (concluding that it was thus “appropriate . . . to
reach the merits of petitioners’ equal protection claims [and]
join the opinion of the Court”).

        The principal case cited by the government—INS v.
Pangilinan, 

, 883 (1988)—does not convince us
otherwise. That case involved the judicial conferral of
citizenship as an equitable remedy where there was no finding
that the statute was constitutionally infirm. Section 701 of the
1940 Nationality Act provided an avenue by which noncitizens
who served in World War II could naturalize without having to
meet a residency or English-proficiency requirement. 

877–88. That pathway presumed that a representative would
be designated to receive petitions, conduct hearings, and grant
naturalizations overseas. 

For foreign-policy
reasons, the Attorney General deprived the Philippine Islands
of such a representative for a nine-month period. 

80. This led to a stream of litigation by Filipino veterans who
did not naturalize before the 1940 Act expired. 

Two
cases made it to the Ninth Circuit and were consolidated. 

Circuit held that the deprivation of a representative
in the Philippines violated the mandate of the 1940 Act and
awarded an equitable remedy by retroactively conferring
citizenship. 

The Supreme Court reversed because,
like the doctrine of equitable estoppel, equitable remedies
cannot “override a public policy established by Congress . . . .”

(internal quotation marks and citation omitted). That
is, “the power to make someone a citizen of the United States
has not been conferred upon the federal courts, like mandamus
or injunction, as one of their generally applicable equitable
powers.” 

–84 (emphasis added).

        That statement and holding have no bearing where the
Constitution is concerned. See 

–96
(O’Connor, J., joined by Souter, Ginsburg, and Breyer, JJ.,
dissenting). In that instance, the notion that a court is not
empowered to fashion a remedy finds support in only an
exceedingly strict view of the plenary power doctrine. See

–56 (Scalia, J., concurring in the
judgment) (“It is in my view incompatible with the plenary
power of Congress over those fields for judges to speculate as
to what Congress would have enacted if it had not enacted what
it did . . . .”). It was not too long ago that a similarly strict
treatment of this doctrine resulted in the condonation of even
the most blatant discrimination. See, e.g., The Chinese




                               30
Exclusion Case, 

, 610–11 (1889) (establishing the
modern plenary-power doctrine in upholding the Chinese
Exclusion Act); Fong Yue Ting v. United States, 

,
732, 

, 1017 (1893) (holding that the political
branches could deport residents based solely on their race and
deem all people of “the Chinese race” incompetent to sign the
affidavit needed for Chinese immigrants to remain lawfully);

(Fuller, J., dissenting) (castigating the majority’s
decision as “incompatible with the immutable principles of
justice, inconsistent with the nature of our government, and in
conflict with the written constitution by which that government
was created, and those principles secured”); Boutilier v. INS,

, 122–24 (1967) (holding that Congress could
deem gay men excludable “as afflicted with a . . . psychopathic
personality” under the plenary-power doctrine).

       Unsurprisingly, then, while continuing to recognize the
broad deference owed to Congress in immigration matters, the
Supreme Court has in recent years curtailed the plenary-power
doctrine’s excesses, both by clarifying that rational-basis
review still adheres upon its invocation and by limiting the
classes of persons subject thereto. See, e.g., 

–94; INS v. Chadha, 

, 940–41
(1983) (rejecting the government’s invocation of the plenary-
power doctrine because the case concerned “whether Congress
has chosen a constitutionally permissible means of
implementing that power”). We, too, have recognized that the
plenary-power doctrine—while affording Congress great
discretion—“is subject to important constitutional limitations,”
and “it is the province of the courts” to enforce those
constraints. Osorio-Martinez v. Att’y Gen. of U.S., 

, 175 (3d Cir. 2018) (quoting Zadvydas v. Davis, 

678, 695 (2001)) (holding that children with special immigrant
juvenile status may invoke the Suspension Clause).

        That curtailment is further apparent from the Court’s
remedy analysis in Morales-Santana. After finding an
unconstitutional infirmity with the provisions at issue, the
Court engaged in precisely the sort of “speculat[ion] as to what
Congress would have enacted if it had not enacted what it did”
Justice Scalia cautioned against in his concurrence in Miller.
The equal protection infirmity at issue was that the statute
retained a longer physical-presence requirement for unwed
citizen fathers to transmit citizenship to their children born
abroad to a noncitizen mother than for similarly situated unwed
citizen mothers. 

. The
petitioner asked the Court to extend the benefit of the shorter
physical-presence requirement to the unwed fathers that the
statute reserved for the unwed mothers. 

expressly stated that it had the option of doing just that or
nullifying the benefit reserved for the unwed mothers such that
both classes of parents would have a longer physical presence
requirement. 

that “extension,
rather than nullification, is the proper course” it chose
nullification because extension would have disrupted the
statutory scheme in a way that would have meant a shorter
physical-presence requirement for unwed fathers and mothers
than for their wed counterparts. 

       To our case, then, the “proper course” is proper. Indeed,
we are confronted with the same two remedial alternatives: we
can remedy the unequal treatment by extending the benefit that
8 U.S.C. § 1432(a)(3) confers on unwed mothers to Felipe
Tineo or by nullifying the benefit such that the benefit-
conferring clause in (a)(3) is excised. We choose the former,
and our choice is “governed by the legislature’s intent, as




                              32
revealed by the statute at hand.” 

.

         Gleaning that the proper course is extension is rather
straightforward in this case. On the one hand, nothing supports
nullification. This is because in the face of nullification—that
is, the possibility that § 1101(c)(1) could be read as imposing
a legitimation requirement on mothers of children born out of
wedlock—Congress spoke in as clear a manner as it could. It
said “a child born outside of the United States of [noncitizen
parents] . . . becomes a citizen [upon the] . . . 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
. . . .” § 1432(a)(3). Even in the absence of this provision, the
government has maintained that no such legitimation
requirement exists for mothers.              See Eligibility of
Unlegitimated Children for Derivative Citizenship, 27 O.L.C.
136 (2003); Memorandum of William Yates, Acting Assoc.
Dir., CIS, to Regional Directors, CIS (Sept. 26, 2003), 

, at *1.

        On the other, there is no roadblock to granting
extension. There is little support for the view that Congress
intended that no unlegitimated child born out of wedlock
would ever derive citizenship through her father. Even if it did,
its enactment of a severability provision counsels against
considering that conviction as so strong as to warrant depriving
similarly situated mothers of the benefit in order to implement
it. See The Immigration and Nationality Act of 1952 § 406, 66
Stat. 163, 281 (“If any particular provision of this Act, or the
application thereof to any person or circumstance, is held
invalid, the remainder of the Act and the application of such
provision to other persons or circumstances shall not be
affected thereby.” (emphases added)).




                                33
        In addition, contrary to the government’s suggestion,
Morales-Santana is no obstacle. The Court’s reluctance to
grant extension in Morales-Santana was driven by the fact that
it would result in ascribing a discriminatory intent to Congress:
that of “disadvantageous treatment of marital children in
comparison to nonmarital 

. There
is no argument that § 1101(c)(1)’s legitimation requirement
applies, or has ever applied, to the parents of children born in
wedlock. Thus, extending Felipe Tineo the same treatment that
§ 1432(a)(3) affords to similarly situated mothers would not
disrupt the statutory scheme in any significant way, nor will it
result in ascribing a discriminatory intent to Congress.

       So we will: Jose Francisco Tineo became a U.S. citizen
when his father naturalized and he was “under the age of
eighteen years” and “residing in the United States pursuant to
a lawful admission for permanent residence . . . .” See §
1432(a)(4) & (a)(5). That is since June 15, 1985.

                            *****

       We acknowledge that, like Morales-Santana before
him, Tineo does not engender much sympathy. He had other
options available to seek citizenship in his own right. See, e.g.,
8 U.S.C. § 1427. Although “[t]his option [might have] be[en]
foreclosed to [Tineo], [] any bar [would have been] due to the
serious nature of his criminal offenses, not to an equal
protection denial or to any supposed rigidity or harshness in the
citizenship laws.” 

.

       But he is not the Tineo that is our focus here. The result
fostered by the gender classification at issue precluded Felipe
Tineo from ever having his child derive citizenship from him.
No matter how we attain it, the Constitution guarantees us the




                               34
rights and responsibilities that come with American
citizenship, regardless of gender, religious beliefs, or the color
of our skin. See J.E.B. v. Alabama ex rel. T.B., 

,
146 (1994). Felipe Tineo acquired citizenship and lived out its
responsibilities, so we cannot lend our imprimatur to his being
unconstitutionally denied one of its benefits. This is the focus
of Jose Tineo’s challenge, and the lens through which we view
him an American.

        With this ruling, the consequence for Tineo’s offenses
is not removal, but rather what the law provides is permissible
for any other citizen who is convicted of the same offenses.
We will therefore grant the petition for review and vacate the
order of removal. This course obviates the need to reach
Tineo’s argument that the BIA should have found that his
passport established a presumption of citizenship that the
government may rebut only by showing that the passport was
fraudulently or illegally obtained. See 

(citizenship finding mooted “lingering agency issues”).




                               35
SMITH, Chief Judge, concurring in part and dissenting in
part.
       When Felipe Tineo became a naturalized United
States citizen, he acquired all the rights that adhere to that
status. At the relevant time, this included the right to pass
his citizenship to his children under the circumstances
described in 8 U.S.C. § 1432.1 Because we address the
claim that Felipe Tineo would have been able to pass his
citizenship to his son José pursuant to § 1432 but for a
gender-based classification preventing it, I concur with the
majority that we apply intermediate scrutiny in conducting
our review.2 Sessions v. Morales-Santana, 

, 1689 (2017). Intermediate scrutiny requires that the

1
  For simplicity, I refer only to § 1432. However, as the
majority correctly observes, the gender-based
classification at issue arises from the interaction of two
subsections of § 1432 with the definition of “child” in 8
U.S.C. § 1101(c)(1).
2
  I likewise concur with the majority in its view that, to the
extent Catwell v. Attorney General, 

, 211 (3d
Cir. 2010), applied rational basis review to a gender-based
equal protection challenge, we must decline to follow it in
light of the Supreme Court’s more recent decision in
Sessions v. Morales-Santana, 

, 1689
(2017).

                              1
gender-based classification serve an important
governmental objective and be substantially related to
achievement of that objective. 

I part ways
with the majority because, in my view, § 1432 satisfies
that standard.3
       The Government posits that § 1432 serves an
important governmental objective: as in Nguyen v. INS,

(2001), the statute utilizes legitimation “as a
tailored means of ensuring that only those unwed fathers
who had achieved equal parental rights as those afforded
to mothers under the law of their state or country were
permitted to pass citizenship to their child.” Resp’t. Br.
35–36.

       Recently, in Morales-Santana, the Supreme Court
reaffirmed that it correctly decided Nguyen. In Nguyen,
the parental acknowledgement requirement served the
important interest of establishing “the parent’s filial tie to
the child.” 

. The
Supreme Court described the parental acknowledgement
requirement as “a justifiable, easily met means of ensuring
the existence of a biological parent-child relationship,
which the mother establishes by giving birth.” 

further agree with the majority that, under United States
v. Moreno, 

, 257 (3d Cir. 2013), Tineo’s first
passport does not constitute conclusive proof of
citizenship.
                             2
       Nguyen recognized two important interests that are
served in establishing the existence of such a filial tie: (1)
the importance of assuring the existence of a biological
father-child relationship; and (2) the importance of
developing a true interpersonal relationship between the
child and the citizen parent who, in turn, has ties to the
United States. 

–65. The
differential treatment of mothers and fathers is based upon
genuine differences at the time of the birth of a child, and
does not rely on outdated stereotypes. See 

(“There is nothing irrational or improper in the
recognition that at the moment of birth . . . the mother’s
knowledge of the child and the fact of parenthood have
been established in a way not guaranteed in the case of the
unwed father. This is not a stereotype.”).

       The legitimation requirement in § 1432, like the
parental acknowledgment requirement in Nguyen, is
substantially related to the goal of ensuring that a
naturalized father’s citizenship passes automatically to his
child only in those cases where a genuine biological and
familial tie exists. “It is almost axiomatic that a policy
which seeks to foster the opportunity for meaningful
parent-child bonds to develop has a close and substantial
bearing on the governmental interest in the actual
formation of that bond.” 

. The fit
between the means and the important end is, as in Nguyen,
“exceedingly persuasive.” 

1432 is actually more difficult to satisfy
than the statute in Nguyen because § 1432 is limited to
legitimation under local law, while the statute in Nguyen
permitted paternal acknowledgment via two additional
methods (a court order of paternity or a declaration of
paternity under oath). See 

–71. In
my view, this does not change the conclusion that Nguyen
applies. Even if § 1432 had included the other alternatives
described in Nguyen, none of them would be available to
José Tineo because there is no evidence that his father
acknowledged paternity or adjudicated paternity before
José turned 18. Moreover, as observed in Nguyen, José
Tineo could have sought citizenship in his own right, were
it not for his having committed serious criminal offenses.
See 

.

       It need hardly be pointed out that we are not
permitted to override the will of Congress and select other
methods for designating the recipients of derivative
citizenship. Indeed, in Nguyen, the Supreme Court
rejected the suggestion that a DNA test should suffice,
observing that the “Constitution . . . does not require that
Congress elect one particular mechanism from among
many possible methods of establishing paternity.”

. Our review is limited to
consideration of whether Congress’s selection of state
legitimation law is substantially related to its goal of
establishing the existence of a true filial tie before

                             4
citizenship may pass from a father to his non-marital child.
As I see it, such a substantial relationship exists.
       The majority is swayed by the outcome that José
Tineo is forever barred from receiving derivative
citizenship via his naturalized father because his mother
died when José was 15, and the laws of the relevant
jurisdictions (New York and the Dominican Republic)
offered no method for Felipe to legitimate José after her
death. For that reason, the majority dismisses the
Government’s primary justification for the statute. But in
legislating, Congress is not required to anticipate every
potential outcome that results from the application of a
statute in order for it to pass constitutional muster. See
Pierre v. Holder, 

, 53–54 (2d Cir. 2013).
Congress legislated in the “difficult context of conferring
citizenship on vast numbers of persons.” 

. We should therefore accept the means Congress
chose, so long as it does so within the bounds of the
constitution by legislating “in substantial furtherance of
important governmental objectives.” See 

its
chosen course meets that test.4


4
  In dismissing the government’s proffered justification,
the majority relies on decisions about the termination of
parental rights. In Lehr v. Robinson, 

, 266–
68 (1983), for instance, the Supreme Court upheld a New
York law that prevented a biological father from vetoing
                             5
his daughter’s adoption by another man. Lehr, in turn,
cites Caban v. Mohammed, 

, 389 (1979), a
case in which the Supreme Court rejected an earlier
version of the same New York statute because it too
broadly assumed that a father always has a lesser bond
than a mother. In Caban, the statute was structured in a
way that did not take into account the father’s relationship
with his biological child at all, and instead relied
exclusively on “overbroad generalizations” about a non-
marital father’s role. 

Thus, Caban concerned
the sort of outdated gender stereotypes that do not underlie
the legislation before us today. And, after Caban, the New
York legislature amended the statute to provide methods
for an unwed father to establish the existence of a
relationship with his child. See Practice Commentary,
N.Y. Dom. Rel. Law § 111 (McKinney 2016). It was the
amended statute that survived scrutiny in Lehr.

Here, in contrast to Lehr and Caban, Congress was not
addressing the termination of parental rights in adoption,
but was legislating to ensure the existence of the father’s
filial tie for the specific purpose of passing on a citizenship
right. The Supreme Court spoke to this important interest
in Nguyen and upheld an analogous provision as
constitutional because it substantially served that
important interest. 

. In short, Lehr
and Caban arose in a distinct and distinguishable context
and do not undermine my conclusion that Nguyen controls.
                                6
       Equal protection does not require that “the statute
under consideration must be capable of achieving its
ultimate objective in every instance.” 

the result in the case we confront is that José Tineo cannot
acquire derivative citizenship under § 1432, such an
outcome does not mean that his father was deprived of the
equal protection of the law.

      I therefore would deny the petition for review.




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