On January 25, 2011 Angad Singh, a third-year law student at the American University Washington College of Law, appeared before three judges in the Fourth Circuit Court of Appeals in Richmond, Virginia and asked them to end the government's 20 year harassment and unequal treatment of David Johnson, who automatically derived U.S. citizenship through his father, who had sole legal custody of David and naturalized when David was eight years old.
UNROW's two main arguments are that the government's latest action, stemming from a 2004 ICE detainer and 2008 Notice to Appear, resulting in Mr. Johnson's incarceration in Batavia for the last two years, is violates David's equal protection right against discrimination based on his parents' marital status at the time of his birth. UNROW is arguing that the current proceedings also violate the principle of res judicata -- a need for finality at odds with the perpetual relitigation of the same issue.
Mr. Singh recounted Judge Roger Gregory's queries about the equal protection issue:
Judge Gregory asked the government whether they're purporting to implement a policy that punishes children for the nonmarriage of of their parents. 'In my day we called these kids bastards,' he said.Mr. Singh also mentioned Judge Gregory pressing the government on whether, in light of the Child Citizenship Act of 2000 the government can now claim an important government interest in the older legislation. In other words, although citizenship laws are not retroactive, constitutional protections rely on current norms and current norms are inconsistent with the statute the government is now defending. Mr. Singh said:
The judge asked, how can you still promote this kind of view and defend this thing in court even when the statute has changed? In 2000 the Child Citizenship Act got rid of this. How can the government still have same important government interest under equal protection, how can it still be relevant?Mr. Singh is part of the UNROW Human Rights Impact Litigation Clinic and has been working with the supervising attorney Erin Louise Palmer, the Clinic director, Ali Beydoun, and several other students (including Brenda Robles and Rachel Zoghlin) on obtaining Mr. Johnson's freedom.
David Johnson, now 46, was born in Jamaica and was in the sole legal custody of his father, Ronald Johnson, since shortly after his birth. His mother, who has a different last name, in 1966 signed a document indicating that she "voluntarily gave his father Ronald Johnson custody of David from the year 1965." David and his father entered the U.S. as legal permanent residents in 1972 and in 1973, Ronald became a naturalized U.S. citizen and thus, according to two immigration adjudicators in prior removal hearings (Kevin McHugh in 1992 and Jimmie Lee Benton in 1998) David derived citizenship from him at that time.
Typical of cases in which foreign-born U.S. citizens are racially profiled for removal after serving prison sentences, David was, for a THIRD time put into deportation proceedings in 2004.
The government is claiming that the terminations on previous occasions only indicated that the government had not proven David's alienage, not that the adjudicators had affirmed David's U.S. citizenship. (See govt. brief here.) Their substantive argument references precedents with significantly different fact-patterns (Nehme v. I.N.S. 252 F.3d 415  and also Afeta v. Gonzales, 467 F. 3d 402 ).) In these two cases federal courts held that the INS requirement for a "legal separation" applied as well to parents who had never been been married but de facto separated. In other words, the judges affirmed that Congress has the prerogative to impose on unmarried couples jointly raising children the requirement of being legally married in order to most easily effect a "legal separation."
The government brief states: "The immigration judge determined that 'legal separation' under INA section 321(a) required 'a judicially recognized marital separation and, by implication, a marriage.' JA 133 (citing Afeta v. Gonzales, 467 F.3d 402 (4th Cir. 2006))."
The UNROW response (see brief here), is that "A marriage requirement cannot withstand intermediate scrutiny because the governmental interests at issue cannot be advanced by the distinction between children of married and unmarried parents."
And UNROW objects on Mr. Johnson's behalf as well to the government initiating removal hearings even after two immigration adjudicators issued final decisions terminating removal proceedings on prior occasions:
DHS is precluded from relitigating Mr. Johnson‟s citizenship because Judge Benton determined this identical issue and the determination was critical to the judgment in the 1998 proceedings. The government had a full and fair opportunity to litigate the issue of Mr. Johnson‟s citizenship and chose not to pursue an appeal. Issue preclusion bars the government from relitigating the same issue that was fairly decided in 1998. See Ramsay v. INS, 14 F.3d 206, 211 (4th Cir. 1994) (applying issue preclusion against a respondent in removal proceedings where all of the elements of issue preclusion were satisfied).To the government's claim that the denial of Mr. Johnson's N-600 application (his attorneys assert this was unconstitutionally decided as well) and that the previous decisions did not prove Mr. Johnson's U.S. citizenship, Mr. Singh said in our interview:
Citizenship was the only issue at the prior hearings. We know that from the transcripts, and it was the only cited reason in the termination order. So it must have been decided. We argue [citizenship] was the only issue in dispute and they terminated the hearing; the syllogism is complete.ADDITIONAL PROBLEMS
One additional potential problem with the government's position is that it is backed up by precedents associated with different fact-patterns than those Mr. Johnson's biography presents.
8 U.S.C. §1432(3) in effect when Mr. Johnson was born states he would derive U.S. citizenship as an operation of law when there was "[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents."
The interpretations of this section in the cases the government cites suggest Congress contemplated situations only with both parents having de facto custody for a significant period of the potential U.S. citizen's childhood or de jure -- including the de jure parental status of an absent but legitimate father.
But David Johnson's mother had neither a de jure nor de facto relationship with him, having relinquished legal and physical custody when David was an infant and having never married his father.
In this scenario, one wonders whether the statute's application here fails even the rational basis test. How can the government expect a father who since the child's infancy has had sole de facto custody to have married and divorced the child's mother?
It is one thing to say, okay, you parents who are living together in a common law marriage should straighten up your legal relations so they fit the facts of your actual living situation. This is of course very problematic as well as unconstitutionally discriminatory for the reasons stated in the UNROW brief. But it seems not just unequal but ludicrous for 8 U.S.C. §1432(3) to require parents to marry when one of them has relinquished legal custody of the child and the parents have no shared domicile or other arrangements between them.
UNROW has a betting pool on when the Fourth Circuit, known, they tell me, as the "rocket docket," will issue its opinion. The money is on a few weeks to two months.
Photo appears courtesy of a Creative Common license and was taken by Andrew Bain Taber.