Jhonson Barthelemy, AKA Johnson Barthelemy v. John D. Ashcroft, U.S. Attorney General

We must decide whether § 321(a) of the Immigration and Nationality Act, now repealed, grants derivative citizenship to Petitioner Jhonson Barthelemy. We hold that it does not. We further reject Bar-thelemy’s constitutional challenges to § 321(a). We hold that a bona fide reason supports the legal separation requirement of § 321(a)(3) and that § 321(a)(3) does not discriminate on the basis of gender, at least as applied to this petition. Barthele-my’s petition for review is dismissed.

I

Jhonson Barthelemy appeals a final order of removal issued by the Board of Immigration Appeals (BIA). In 1998, Bar-thelemy was convicted of unlawful sexual intercourse with a minor, in violation of California Penal Code § 261.5(a). Barthe-lemy concedes that, as a result of this conviction, he is an aggravated felon. See 8 U.S.C. § 1101 (a)(43)(A). Because he is an aggravated felon, Barthelemy is subject to immediate removal from this country unless he can establish that he is a United States citizen. 8 U.S.C. § 1227 (a)(2) (A) (iii).

The facts in this petition are not disputed. Barthelemy was born in Port-au- Prince, Haiti, in 1978 to Enese Jean-Baptiste and Roger Barthelemy. Neither…