Wilson

MEMORANDUM **

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the immigration judge’s decision finding that petitioner Wilson did not derive United States citizenship through his father, a naturalized United States citizen.

The motion to proceed in forma pauperis is granted. The Clerk shall amend the docket to reflect this status.

Because, as petitioner asserts, his parents were never married, the BIA correctly determined that he is not eligible for derivative citizenship under former INA § 321. Section 321(a)(3) provided for derivative citizenship based on naturalization of a parent having legal custody during a legal separation. This court has held that this subsection does not apply to the children of parents who never married and who thus could never legally separate. Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir.2003).

Petitioner challenges the constitutionality of former § 321(a)(3)’s provision of derivative citizenship for an illegitimate child based on a mother’s naturalization, but not a father’s. This claim also lacks merit. See Barthelemy, 329 F.3d at 1066-68 ; see also Nguyen v. INS, 533 U.S. 53 , 121 S.Ct. 2053 , 150…

dissents.

I would deny the motion for summary disposition.