on February 6, 2019
Petition for Review of an Order of the Board of Immigration
Appeals Immigration Judge: Honorable John P. Ellington
Raymond G. Lahoud (ARGUED) Norris, McLaughlin & Marcus
Counsel for Petitioner
Stephanie E. Beckett (ARGUED) United States Department of
Justice Office of Immigration Litigation Counsel for
HARDIMAN, SCIRICA and RENDELL, Circuit Judges.
RENDELL, Circuit Judge.
Rafael Cepeda Cabrera was born in the Dominican Republic in
1979 and admitted to the United States as a lawful permanent
resident in 1988. Two years later, he was adopted by a
natural born U.S. citizen, Randolph Benn Attenborough. Had he
been Attenborough's biological child, then Section 309 of
the Immigration and Nationality Act ("INA"), 8
U.S.C. § 1409, would have provided him a pathway to
obtain automatic derivative citizenship. But since he is an
adopted child, the statute does not apply to him and his road
to citizenship is more arduous. In his view, this disparate
treatment between adopted and biological children violates
the guarantee of equal protection under the Fifth
Amendment's Due Process Clause. We disagree and will deny
his petition for review.
advances his equal protection claim in an effort to stop his
removal from the United States. He was still lawfully
residing in the United States in 2014 when he pled guilty to
federal charges of conspiracy to possess with intent to
distribute heroin and was sentenced to 36 months'
imprisonment. Upon his release, Cabrera was served with a
Notice to Appear for removal proceedings. This Notice leveled
two charges of removability: his conviction of an aggravated
felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and his
conviction of a controlled substance offense, id.
§ 1227(a)(2)(B)(i). In response, Cabrera disputed the
factual allegation made in the Notice to Appear that he was
not a U.S. citizen. He argued, on constitutional grounds, that
he was entitled to derivative citizenship through his
adoptive father and, because he was entitled to U.S.
citizenship, he could not be removed. The Immigration Judge
held that he lacked jurisdiction to hear this constitutional
claim and ordered Cabrera removed to the Dominican Republic.
The Board of Immigration Appeals affirmed the IJ's order.
Cabrera then filed this petition for review.
reviewing citizenship claims, we apply the laws that were in
effect at the time of the relevant event-i.e., the
petitioner's birth, adoption, or eighteenth birthday.
See Bagot v. Ashcroft, 398 F.3d 252, 257 n.3 (3d
Cir. 2005). Here, both parties agree that the challenged law,
INA Section 309, was effective at the time of all relevant
events. Section 309 allows for a foreign-born person born out
of wedlock to a U.S. citizen father to obtain automatic
derivative citizenship if several conditions are met,
including that the person establishes a blood relationship
with the father and that the father was a U.S. national at
the time of the child's birth. See 8 U.S.C.
§ 1409. The gravamen of Cabrera's claim is that he,
as an adopted child of a U.S. citizen, could not avail
himself of the system of automatic derivative citizenship
established in Section 309. Instead, Attenborough would have
had to apply for citizenship on Cabrera's behalf before
his eighteenth birthday via the procedures established in a
different statute, Former INA Section 322, 8 U.S.C. §
1433 (1994), amended by Child Citizenship Act of
2000 § 102(a). This disparate treatment on the basis of
his adoptive status, he argues, violates his right to equal
protection under the Fifth Amendment's Due Process
Fifth Amendment's Due Process Clause "contains the
same guarantee of equal protection under law as that provided
in the Fourteenth Amendment." United States v.
Pollard, 326 F.3d 397, 406 (3d Cir. 2003). To prevail on
his equal protection claim, Cabrera must show that the
"Government has treated [him] differently from a
similarly situated party and that the
Government's explanation for the differing treatment does
not satisfy the relevant level of scrutiny."
Real Alts., Inc. v. Sec'y Dep't of Health &
Human Servs., 867 F.3d 338, 348 (3d Cir. 2017) (emphasis
in original). Classifications involving "fundamental
personal rights" or "suspect distinctions such as
race, religion, or alienage" are subject to heightened
scrutiny. City of New Orleans v. Dukes, 427 U.S.
297, 303 (1976). But classifications "neither involving
fundamental rights nor proceeding along suspect lines"
are subject to the more deferential rational-basis review.
Heller v. Doe by Doe, 509 U.S. 312, 319 (1993).
not had occasion to determine what standard of review applies
to claims of disparate treatment on the basis of adoptive
status in the citizenship context. Both Cabrera and the
Government argue that we should apply rational-basis review.
We have applied this standard to distinctions on the basis of
adoptive status in the social security context. See Brehm
v. Harris, 619 F.2d 1016, 1020 (3d Cir. 1980). And the
Second and Ninth Circuits have applied this standard to such
distinctions in the citizenship context. See Dent v.
Sessions, 900 F.3d 1075, 1082 (9th Cir. 2018)
("Adoptive parents are not a protected class and,
therefore, rational-basis review applies to that distinction
as well."); Smart v. Ashcroft, 401 F.3d 119,
122 (2d Cir. 2005) ("There is no suggestion here that
adopted children are a 'protected' class entitled to
invoke heightened scrutiny."). Moreover, the Supreme
Court has never held that adopted children are a suspect
class. Accordingly, we agree with the parties and our sister
circuits that rational-basis review should apply here.
threshold for upholding distinctions in a statute under
rational-basis review is extremely low …."
Pollard, 326 F.3d at 408. It asks whether there is
"a rational relationship between the disparity of
treatment and some legitimate governmental purpose."
Real Alts., 867 F.3d at 348 (quoting
Pollard, 326 F.3d at 407). The legitimate purpose
"may be based on rational speculation unsupported by
evidence or empirical data." FCC v. Beach
Commc'ns., Inc., 508 U.S. 307, 315 (1993). And
rational-basis review "confers a presumption of validity
on legislation" that must be rebutted by the challenger.
Real Alts., 867 F.3d at 348 (quotations omitted)
(quoting Brian B. ex rel. Lois B. v. Pa. Dep't. of
Educ., 230 F.3d 582, 586 (3d Cir. 2000)). Furthermore,
under the rational-basis standard, Cabrera "must negate
every conceivable justification for the classification in
order to prove that the classification is wholly
irrational." Brian B. ex rel. Lois B., 230 F.3d
at 586. The Government offers three primary justifications
for Section 309's differential treatment: "(1)
promoting a real relationship between child and the U.S.
citizen parent; (2) preventing immigration fraud; and (3)
protecting the rights of alien parents." Gov't Br.
14-19. Cabrera could negate these justifications by showing
either that these interests are not legitimate or that the
classification is not rationally related to those interests.
But his arguments fall short on both scores.
begin, we agree with the Government that its three proposed
interests are legitimate. The Supreme Court has recognized
the important government interest in developing "the
real, everyday ties that provide a connection between child
and citizen parent and, in turn, the United States."
Tuan Anh Nguyen v. INS, 533 U.S. 53, 65 (2001). We
also agree with many of our sister circuits that preventing
immigration fraud is a legitimate interest. See,
e.g., Dent, 900 at 1082 (holding that
preventing immigration fraud is a legitimate government
interest); Smart, 401 F.3d at 123 (same);
Bangura v. Hansen, 434 F.3d 487, 495 (6th Cir. 2006)
(same). And finally, we have recognized the government's
legitimate interest in "protecting the rights of alien
parents" in the immigration context. Catwell v.
Att'y Gen. of U.S., 623 F.3d 199, 211 (3d Cir.
agree with the Government that the disparate treatment in
Section 309 is at least rationally related to advancing these
interests. Requiring an adoptive parent to apply for
citizenship on behalf of his or her child, as opposed to
conferring citizenship automatically upon the child,
increases the probability that those who take the time to
navigate that process have a real parent-child relationship.
These additional requirements also reduce the likelihood that
an adoption will occur solely to obtain citizenship. As the
Ninth Circuit noted, "[r]equiring adoptive parents to
petition for their children's naturalization helped
ensure that the child had a genuine relationship with the
parent [and] gave the government the opportunity to inquire
into naturalizing parents' relationships with their
previously adopted children." Dent, 900 F.3d at
1082. Furthermore, if adopted children could obtain automatic