NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                              No. 17-3621
                           ________________

         RAFAEL MARTINEZ, AKA Rafael Martinez Taveras,
AKA Aramis Del Valle-Roldan, AKA Rafael Aroldo Guillen, AKA Ivan Rivera,
                                                                Petitioner

                                    v.

        ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                            Respondent

                           ________________

                  On Petition for Review of a Final Order
                 of the United States Department of Justice
                       Board of Immigration Appeals
               Immigration Judge: Honorable Walter Durling
                        (Agency No. A041-743-338)
                            ________________

                Submitted Under Third Circuit LAR 34.1(a)
                           on January 7, 2019

        Before: AMBRO, SHWARTZ and FUENTES, Circuit Judges

                     (Opinion filed: January 18, 2019)
                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Petitioner Rafael Martinez was born in the Dominican Republic in December

1970. He has lived with his biological uncle, Ricardo Taveras Pena, since the age of two.

At that time Taveras Pena was a lawful permanent resident of the United States, but he

became a naturalized citizen in 1977. Martinez continued to reside in the Dominican

Republic, and Taveras Pena traveled back and forth between the two countries during this

time. He formally adopted Martinez in the Dominican Republic in 1986, and the latter

entered the United States as a lawful permanent resident in November 1988, one month

shy of his 18th birthday.

       Then-current immigration law provided for the children of newly naturalized

citizens to acquire derivative citizenship if certain conditions were met. See 8 U.S.C.

§ 1432 (repealed). First, the statute defined the kind of naturalization event that triggers

derivative citizenship: “(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.” 

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
(repealed). When one of these events occurred, if the child was under the age of 18 and

either was residing in the United States as a lawful permanent resident at that time or

subsequently entered the country as a lawful permanent resident prior to turning 18, the

child would automatically become a citizen. 

       Subsection (b) of the law provided that this would only apply to an adopted child

if, at the time of the naturalization event, the child was residing in the United States as a

lawful permanent resident in the custody of the adoptive parent(s). This meant that

Martinez did not qualify for derivative citizenship because, in 1977 when Taveras Pena

was naturalized, he did not yet reside in the United States. Had Martinez been Taveras

Pena’s biological child, he would have acquired derivative citizenship on entering the

country as a lawful permanent resident in November 1988 because he was not yet 18

years old.

       Section 1432 was repealed by the Child Citizenship Act of 2000, Pub. L. 106-395,

114 Stat. 1631, codified at 8 U.S.C. § 1431 et seq., and replaced with a more generous

provision that places adopted children on an equal footing. Now a child gains automatic

derivative citizenship whenever (1) at least one parent is a citizen of the United States, (2)

the child is under the age of 18, and (3) the child is residing in the United States in the

custody of his or her citizen parent as a lawful permanent resident. See 8 U.S.C.

§ 1431(a). And this provision expressly applies to adopted children in the same manner

as biological children. 

       In October 2010 Martinez pled guilty to one count of distribution of heroin in

violation of 21 U.S.C. § 841(a)(1) and one count of money laundering in violation of 21

                                              3
U.S.C. § 1956(a)(1)(B)(i). He then began filing applications with the Department of

Homeland Security seeking to be recognized as a United States citizen. This application

was ultimately denied in December 2015, and DHS began removal proceedings against

Martinez in March 2016. The Notice to Appear filed against Martinez alleged several

grounds for removability, all pertaining to his criminal convictions. At a hearing before

an Immigration Judge in York, Pennsylvania, Martinez admitted to all of the factual

allegations against him except one—that he was not an American citizen. His continued

claim of citizenship was the sole argument against his removability, which he otherwise

admitted on three of the five charges in the Notice to Appear.

       The Immigration Judge initially ruled that Martinez did not qualify for derivative

citizenship under the statute as it exists today. The Board of Immigration Appeals

reversed, holding that the IJ should have applied the prior version of the statute. On

remand, Martinez argued that the distinction drawn in the pre-2000 law between natural

and adopted children violated the Equal Protection Clause of the Constitution. The IJ

noted this argument but held that he did not have authority to rule on this constitutional

challenge; he again held that Martinez was not an American citizen because he did not

meet the criteria for adopted children under the old statute. The BIA affirmed, holding

that it too lacked jurisdiction over Martinez’s constitutional challenge. This petition for

review followed.

       Adoption status is not a suspect classification under the Supreme Court’s equal

protection jurisprudence. Martinez therefore argues, as he must, that the statutory

scheme was not rationally related to a legitimate government interest. See De-Leon-

                                              4
Reynoso v. Ashcroft, 

, 638 (3d Cir. 2002); Fiallo v. Bell, 

, 794–

95 (1977). This is not correct. As the Government argues, the distinction between

biological and adopted children served the interest of ensuring that children who acquire

derivative citizenship have a real and abiding connection with the United States, not just

an artificial legal one. It also served the interest of preventing immigration fraud. Other

Circuits have found these interests sufficient to meet the Government’s light burden

under rational basis review, see, e.g., Smart v. Ashcoft, 

, 122–123 (2d Cir.

2005), and we agree.

       Martinez counters that the subsequent repeal of this distinction by the Child

Citizenship Act “belie[s] the notion that there is a rational or facially legitimate basis to

differentiate between adopted and natural children.” Petitioner’s Br. at 17. He also

argues that these government interests are not at play in his case because the genuine

nature of his bond with Taveras Pena cannot be doubted and there is no allegation of

fraud here. Similar arguments were rejected in Smart as misapprehending the nature of

rational basis review. As the Second Circuit noted, a “congressional decision that a

statute is unfair, outdated, and in need of improvement does not mean that the statute

when enacted was wholly irrational or, for purposes of rational basis review,

unconstitutional.” 

. There are numerous policies that would be a

rational means of advancing legitimate government interests. Congress is free to choose

from among these different rational means, and thus its choice not to enact a certain

provision, or to repeal that provision, cannot be taken as a judgment that the provision is



                                               5
irrational. It may instead simply reflect new considerations or sensibilities that suggest

taking a different direction.

       Likewise, rational basis scrutiny presumes that the legislature may adopt policies

that are “not precisely tailored to advance” the legitimate government interests they

serve. 

Court has recognized that a law “does not fail rational-basis

review because . . . in practice it results in some inequality.” Heller v. Doe, 

, 321 (1993) (cleaned up). This necessarily contemplates that laws may sometimes

apply to cases in which the policy concerns motivating those laws are not present. Thus,

although the immigration rules at the time of Martinez’s entry into the United States may

have been inequitable toward Martinez and other adopted children like him, they were

not beyond the power of Congress to enact.

       In this context, we deny the petition for review.




                                             6