Robert Franklyn Lodge v. U.S. Attorney General

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10416
____________________
ROBERT FRANKLYN LODGE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A043-215-757
____________________
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2 Opinion of the Court 22-10416
Before WILLIAM PRYOR , Chief Judge, and ROSENBAUM and H ULL ,
Circuit Judges.
WILLIAM PRYOR , Chief Judge:
We sua sponte vacate our original opinion and substitute in
its place the following opinion.
This petition for review challenges the constitutionality of a
federal law about derivative citizenship. Robert Franklyn Lodge, a
native and citizen of Jamaica, was born out of wedlock. Lodge’s
mother abandoned him, and his father moved to the United States
and became a naturalized citizen. Lodge’s father later brought him
here as a lawful permanent resident. After Lodge was convicted of
aggravated felonies, the Department of Homeland Security sought
to remove him. Lodge argued that he had derived citizenship from
his father under a since-repealed statute. The immigration judge
ordered Lodge removed to Jamaica, and the Board of Immigration
Appeals dismissed Lodge’s appeal. Lodge argues that the former
statute discriminated against unmarried fathers based on sex and
against black children based on race. He asks us to declare him a
citizen on the ground that the statute, cured of its constitutional
defects, would have permitted his father to transmit citizenship to
him. Yet Lodge would not have derived citizenship from his father
even under a version of the statute cured of its alleged constitu-
tional defects. Because we cannot grant Lodge the remedy he
seeks, we deny his petition for review and deny as moot his motion
to transfer.
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22-10416 Opinion of the Court 3
I. BACKGROUND
Born in 1979, Robert Franklyn Lodge is a native and citizen
of Jamaica. His father, Robert Francis Lodge, was born in Jamaica
and became a naturalized citizen of the United States in 1989. And
Lodge’s mother, Lorna Wyndham, has never been a citizen of the
United States. Lodge’s parents never married. But their names ap-
pear on Lodge’s “birth registration form” as his father and mother.
Lodge’s mother abandoned him when he was a child. She
left Jamaica to reside in London. Lodge’s father became his sole
“guardian” and “provide[d] everything” for him. He “maintained a
continuing and close relationship” with Lodge, “support[ing] him
fully and completely.” Lodge’s father brought Lodge to the United
States, where he was admitted as a lawful permanent resident in
1992.
The Department of Homeland Security began removal pro-
ceedings against Lodge after he was convicted of aggravated felo-
nies in 2016. See 8 U.S.C. § 1227(a)(2)(A)(iii). Lodge argued before
the immigration judge that he was a citizen of the United States.
The Department responded that Lodge was not a citizen.
The immigration judge found that Lodge was not a citizen
of the United States. When Lodge’s father naturalized and Lodge
became a lawful permanent resident, the Immigration and Nation-
ality Act provided several pathways to derivative citizenship for
children born abroad to alien parents. See 8 U.S.C. § 1432(a) (1994),
repealed by Child Citizenship Act of 2000, Pub. L. No. 106-395,
§ 103, 114 Stat. 1631, 1632 (2000). Although Lodge would have
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4 Opinion of the Court 22-10416
derived citizenship under the Child Citizenship Act of 2000, which
repealed and replaced those pathways, that new law is not retroac-
tive, and Lodge did not satisfy its terms on its effective date. See 8
U.S.C. § 1431(a); United States v. Arbelo, 288 F.3d 1262, 1263 (11th Cir.
2002). The immigration judge explained that Lodge did not meet
the statutory conditions for naturalization under former sec-
tion 1432(a). The immigration judge rejected Lodge’s requests for
withholding of removal and for relief under the Convention
Against Torture and ordered him removed to Jamaica. Lodge ap-
pealed to the Board of Immigration Appeals, which dismissed his
appeal.
Lodge petitioned this Court pro se for relief. He argued that
the second clause of section 1432(a)(3)—which allowed natural-
ized unmarried mothers, but not naturalized unmarried fathers, to
transmit citizenship to their children when other conditions were
met—violated the equal protection guarantee of the Due Process
Clause of the Fifth Amendment because it discriminated based on
sex and race. We dismissed the appeal for want of prosecution but
reinstated it after Lodge obtained counsel.
Lodge moved to transfer the proceeding to the Northern
District of Georgia. See 8 U.S.C. § 1252(b)(5)(B). He argued that ad-
judication of his argument about race discrimination requires fact-
intensive inquiry into the legislative purpose and the effect of the
second clause of section 1432(a)(3), and he argued that this Court
may not decide issues of material fact about nationality. See id. We
carried the motion with the case.
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22-10416 Opinion of the Court 5
II. STANDARD OF REVIEW
We review de novo our subject-matter jurisdiction and
Lodge’s constitutional challenges. Clement v. U.S. Att’y Gen., 75 F.4th
1193, 1198 (11th Cir. 2023); Poveda v. U.S. Att’y Gen., 692 F.3d 1168,
1172 (11th Cir. 2012).
III. DISCUSSION
We proceed in two parts. We first explain that Lodge has Ar-
ticle III standing to assert his constitutional challenges. We then ex-
plain that Lodge is not entitled to the remedy he seeks because he
would not derive citizenship from his father even under a version
of the second clause of section 1432(a)(3) that did not classify based
on sex.
A. Lodge Has Article III Standing.
We may consider Lodge’s constitutional challenges only if
he has standing to assert them. See TocMail, Inc. v. Microsoft Corp., 67
F.4th 1255, 1262 (11th Cir. 2023). As the party invoking federal ju-
risdiction, Lodge must prove that he has suffered an injury in fact
that is fairly traceable to the allegedly unlawful conduct of the At-
torney General and which a favorable decision would likely redress.
See id. Because Lodge has satisfied that burden, he has Article III
standing to challenge the constitutionality of the sex classification
in the second clause of section 1432(a)(3).
Lodge has suffered an injury in fact. He is subject to removal
because he was convicted of aggravated felonies. See 8 U.S.C.
§ 1227(a)(2)(A)(iii). The “risk of removal” is “sufficient to create an
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6 Opinion of the Court 22-10416
actual or imminent injury” under Article III. Gonzalez v. United
States, 981 F.3d 845, 852 (11th Cir. 2020).
That injury is fairly traceable to the challenged action of the
Attorney General. The immigration judge, acting for the Attorney
General, denied Lodge’s claim that he derived citizenship from his
father under section 1432(a)(3). Lodge challenges the lawfulness of
the statutory provision that he alleges was the “ultimate basis” for
that denial. Citizenship is a defense to removal. See 8 U.S.C.
§ 1227(a) (only aliens may be removed). So the allegedly unlawful
denial of Lodge’s citizenship claim was a cause of his removal.
A favorable decision would redress Lodge’s injury. A favora-
ble decision is a favorable judgment. See Haaland v. Brackeen, 143 S.
Ct. 1609, 1640 (2023). Lodge seeks a judgment declaring that he is
a citizen of the United States. A judgment granting that relief
would give Lodge “legally enforceable protection” against his in-
jury, see id. at 1639, because the Attorney General would need to
cancel the order of removal.
B. Lodge Would Not Derive Citizenship From His Father
Even Under a Cured Version of Section 1432(a)(3).
Lodge raises two constitutional challenges. First, he argues
that the sex classification in the second clause of former sec-
tion 1432(a)(3) discriminated unlawfully based on sex. Second, he
argues that the same classification discriminated based on race be-
cause it was intended to, and did, exclude him from deriving citi-
zenship from his father on the ground that Lodge is black.
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22-10416 Opinion of the Court 7
Our analysis begins with the statutory scheme. Former sec-
tion 1432(a) automatically conferred citizenship on a “child born
outside of the United States of alien parents . . . upon fulfillment
of ” three conditions. 8 U.S.C. § 1432(a). The first condition, which
appeared in the second clause of section 1432(a)(3), required “the
naturalization of the mother if the child was born out of wedlock
and the paternity of the child has not been established by legitima-
tion.” Id. § 1432(a)(3). The second condition required that “[s]uch
naturalization take[] place while such child is unmarried and under
the age of eighteen years.” Id. § 1432(a)(4). And the third condition
required that “[s]uch child . . . begin[] to reside permanently in the
United States while under the age of eighteen years.” Id.
§ 1432(a)(5).
Lodge acknowledges that he did not derive citizenship under
the statute. Although he began to reside permanently in the United
States before he turned 18, and although he was unmarried and
under 18 when his father became a naturalized citizen, the second
clause of section 1432(a)(3) provided derivative citizenship only if
his mother, not his father, naturalized. His mother never did so.
So Lodge challenges the constitutionality of the second
clause. When the conditions in sections 1432(a)(3), 1432(a)(4), and
1432(a)(5) were satisfied, he argues, the second clause of sec-
tion 1432(a)(3) “confer[red] automatic citizenship on the child of
an unmarried mother, but not of a similarly situated unmarried fa-
ther.” Lodge argues that the sex classification in the second clause
was the basis for denial of his defense of citizenship. He maintains
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8 Opinion of the Court 22-10416
that the clause unconstitutionally discriminated based on sex be-
cause it treated unmarried mothers and unmarried fathers une-
qually based solely on the “outmoded stereotype[]” that “an unwed
father is more likely to be ‘out of the picture’ than an unwed
mother.” And he contends that the “disparate treatment of unmar-
ried fathers” is unconstitutional also because the second clause was
enacted with the purpose, and had the disparate effect, of limiting
the number of black children who could derive citizenship.
Lodge invokes third-party standing to assert his sex-discrim-
ination claim, and we need not decide whether he may do so. “Be-
cause [the second clause of section 1432(a)(3)] treats sons and
daughters alike, [Lodge] does not suffer discrimination on the basis
of his [sex].” See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1688
(2017). Lodge “complains, instead, of [sex]-based discrimination
against his father.” Id. That is, Lodge argues that the sex classifica-
tion in the second clause “clearly injure[s]” “his father,” and that
he—Lodge—has third-party standing “to assert his [father’s] con-
stitutional claims.” A litigant ordinarily may not assert the right of
a third party. See Elend v. Basham, 471 F.3d 1199, 1206 (11th Cir.
2006). But a petitioner sometimes may challenge a sex classification
in a statute governing derivative citizenship to “vindicate his fa-
ther’s right to the equal protection of the laws.” Sessions, 137 S. Ct.
at 1689. Because, as we explain below, Lodge is not entitled to the
remedy he seeks even if he does have third-party standing to assert
his father’s right to equal protection, we assume without deciding
that Lodge has third-party standing. See United States v. Blake, 868
F.3d 960, 970 (11th Cir. 2017) (third-party standing is not
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22-10416 Opinion of the Court 9
jurisdictional and may be “bypass[ed]” when deciding it “will not
affect the result”).
Lodge argues that the sex classification in the second clause
of former section 1432(a)(3) was the “ultimate basis” of the immi-
gration judge’s denial of his defense that he derived citizenship un-
der section 1432(a). This assertion underpins both of Lodge’s chal-
lenges to the second clause. Each discrimination claim targets the
sex classification because, Lodge says, the classification is unlawful
on two grounds. So the “cure” for both “the sex- and race-based
discrimination” in the clause, according to Lodge, is the same: “al-
low fathers to bestow derivative citizenship on their nonmarital
children” under former section 1432(a)(3) the same way mothers
could.
Lodge’s equal protection challenges fail because, since his
mother never naturalized, the sex classification did not affect the
immigration judge’s denial of Lodge’s citizenship claim. The sec-
ond clause of section 1432(a)(3) provided a pathway to derivative
citizenship for a child born abroad to alien parents upon “the natu-
ralization of the mother if the child was born out of wedlock and
the paternity of the child has not been established by legitimation.”
8 U.S.C. § 1432(a)(3). Because his mother never naturalized, Lodge
did not derive citizenship under this provision. But he would not
have become a citizen even under a sex-neutral version of the sec-
ond clause. A sex-neutral version of the second clause of sec-
tion 1432(a)(3) would have conferred citizenship upon “the natu-
ralization of one parent if the child was born out of wedlock and
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10 Opinion of the Court 22-10416
the paternity or maternity of the other parent has not been established.”
Or it would have conferred 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 or the natural-
ization of the father if the child was born out of wedlock and the mater-
nity of the child has not been established.” Either way, because Lodge’s
maternity has been established, he would not have derived citizen-
ship from his father under a version of the second clause that
treated mothers and fathers the same.
In other words, that the immigration judge rejected Lodge’s
defense of citizenship had nothing to do with the sex classification.
Lodge did not “suffer from a [sex]-based distinction” in the second
clause. See Roy v. Barr, 960 F.3d 1175, 1182 (9th Cir. 2020) (emphasis
added). It follows that his claims “do[] not implicate equal protec-
tion.” See Ayton v. Holder, 686 F.3d 331, 338 (5th Cir. 2012). They in-
stead “fail[] at the outset” because we cannot grant Lodge the rem-
edy he seeks no matter what we decide about the constitutionality
of the sex classification. See Roy, 960 F.3d at 1183.
Lodge insists that the sex classification does violate his and
his father’s rights. He would have us remedy its alleged constitu-
tional defects by “allow[ing] the child of a similarly situated fa-
ther”—that is, allowing Lodge—“to obtain the same benefits” that
the clause grants to children of naturalized, unmarried mothers. In
Lodge’s view, a father “similarly situated” to a naturalized mother
whom the second clause benefits would be a father who “has legit-
imated the child and obtained exclusive legal custody” over him. So
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22-10416 Opinion of the Court 11
Lodge proposes that we amend the second clause to confer auto-
matic citizenship—assuming that the conditions in sec-
tions 1432(a)(4) and 1432(a)(5) are met—upon the “naturalization
of the mother if the child was born out of wedlock and the pater-
nity of the child has not been established by legitimation or the nat-
uralization of the father if the child was born out of wedlock and the
child is in the legal custody of the father.”
That proposed amendment “does not simply correct a [sex]
disparity—it rewrites the statute entirely,” and this fact underscores
the “infirmity of [Lodge’s] equal-protection claim[s].” See id. at
1182–83 (rejecting a similar proposed cure of the sex classification
in the second clause of section 1432(a)(3)). If we were to extend
Lodge’s logic to the statute as it was written, the second clause
would have allowed naturalized mothers to transmit citizenship if
the child were born out of wedlock and the child were in the legal
custody of the mother. But the second clause instead allowed mothers
to transmit citizenship “if the child is born out of wedlock and the
paternity of the child has not been established by legitimation.” 8 U.S.C.
§ 1432(a)(3). These italicized conditions are not the same. A child
can be in his mother’s legal custody even if his father has legiti-
mated him. Whether a child is in his mother’s custody says nothing
about whether the child’s paternity has been established. For the
same reason, whether a child is in his father’s custody says nothing
about whether the child’s maternity has been established. And that
the child’s maternity has been established does not tell us whether
he is in his father’s custody.
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12 Opinion of the Court 22-10416
Lodge misses the point when he argues that a paternal “cus-
todial relationship” is “on all fours with the maternal relationship
described in” the second clause of section 1432(a)(3) because “the
unwed mother is presumed to have sole legal custody” over the
child. The second clause does not allow transmission of citizenship
by the mother with sole legal custody if paternity has been estab-
lished by legitimation. Likewise, that a father might have sole legal
custody would be, on the plain terms of what would be the sex-
neutralized statute, only half the story; establishment of maternity
would be the other half.
We agree with the government that it is “no coincidence”
that Lodge’s proposed amendment would, instead of removing the
sex classification from the second clause, “effectively render retro-
active the derivative citizenship provisions” of the Child Citizen-
ship Act. Under that law, which became effective in 2001, a child
born abroad derived citizenship when, before he turned 18, he
“resid[ed] in the United States” as a lawful permanent resident “in
the legal and physical custody of [his] citizen parent.” 8 U.S.C.
§ 1431(a)(1)–(3); Arbelo, 288 F.3d at 1262. Lodge appears to have sat-
isfied those conditions. But the Act is not retroactive. Arbelo, 288
F.3d at 1263. And the pathway to citizenship that depends on the
second clause of former section 1432(a)(3) is not, as Lodge con-
tends, simply the new law plus an unlawful sex classification: the
second clause of former section 1432(a)(3) never mentions custody.
Lodge retorts that legitimation, as that term is used in the
second clause, is an “inherently sex-based” concept, and that his
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22-10416 Opinion of the Court 13
entitlement to relief cannot turn on whether he satisfies an “inher-
ently [sexist] part of an unconstitutional test.” This objection mis-
fires. Although legitimation is often considered a mechanism for
establishing paternity, not maternity, see Schreiber v. Cuccinelli, 981
F.3d 766, 774 (10th Cir. 2020); Matter of Cross, 26 I. & N. Dec. 485,
489 n.5, 492 (B.I.A. 2015), “both fathers and mothers can legitimate
a child after the child’s birth,” Roy, 960 F.3d at 1183 (emphasis omit-
ted). Yet most children are necessarily legitimated by their mothers
by being born to them in a place where that fact is officially rec-
orded. In any event, the removal of the sex classification from the
second clause of section 1432(a)(3) would not need to involve the
concept of establishment of maternity by legitimation.
Lodge is also wrong to suggest that maternity need never be
established. Indeed, the authorities that he cites undermine his ar-
gument. The Supreme Court has stated, for example, that “[t]he
mother’s status is documented in most instances”—not all—“by the
birth certificate or hospital records and the witnesses who attest to
her having given birth.” Nguyen v. INS, 533 U.S. 53, 62 (2001) (em-
phasis added). Another decision states that “[e]stablishing mater-
nity is seldom”—not never—“difficult.” Lalli v. Lalli, 439 U.S. 259,
268 (1978) (emphasis added). And the Ninth Circuit has stated that
“in most cases”—not all—“there is a reasonable expectation that the
illegitimate child’s maternal descent will be easier to trace than her
paternal descent.” Ablang v. Reno, 52 F.3d 801, 805 (9th Cir. 1995)
(emphasis added). These authorities do not speak in categorical
terms. That a child’s maternity has not been established is, even if
improbable, “not impossible.” Roy, 960 F.3d at 1182. “[A]n
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14 Opinion of the Court 22-10416
unmarried mother could give birth at her home and then leave the
baby on the father’s doorstep.” Id. The father might confirm his
own paternity with a test but not know the identity of the mother.
Id. Lodge misses that the establishment of maternity, like the es-
tablishment of paternity by legitimation, is a legal act that attests a
biological fact; it is not the biological fact itself. Were it otherwise,
establishment of paternity would be no more meaningful a con-
cept than establishment of maternity. In short, the law does not
always know that a particular mother has given birth.
The sex classification in the second clause of former sec-
tion 1432(a)(3) did not contribute to Lodge’s injury. The classifica-
tion, as applied to Lodge by the immigration judge in the govern-
ment action that Lodge challenges, did not implicate the constitu-
tional rights that Lodge asserts. Because Lodge cannot obtain relief
in any event, we do not address whether the sex classification
would survive heightened scrutiny, and we need not decide
whether Lodge has third-party standing to assert his father’s right
to equal protection. We also need not address Lodge’s motion to
transfer. See 8 U.S.C. § 1252(b)(5)(B). Nor do we decide whether
Lodge qualified as a “child” under section 1432(a)(3). See 8 U.S.C.
§ 1101(c)(1) (1994) (defining “child” in section 1432(a)(3) to include
a child born to unmarried parents only if he was legitimated under
certain conditions).
IV. CONCLUSION
We DENY Lodge’s petition for review and DENY as moot
his motion to transfer.
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