Romero-Ruiz v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN ALFREDO ROMERO-RUIZ, 
Petitioner, No. 06-74494
v.
 Agency No.
A77-436-614
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 17, 2008—San Francisco, California
Filed August 13, 2008
Before: Stephen S. Trott and Sidney R. Thomas,
Circuit Judges, and Michael R. Hogan,* District Judge.
Opinion by Judge Thomas
*The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.
10535
10538 ROMERO-RUIZ v. MUKASEY
COUNSEL
Vikram K. Badrinath, Vikram Badrinath, P.C., Tucson, Ari-
zona, for the petitioner.
Lauren E. Fascett, United States Department of Justice, Civil
Division, Washington, D.C., for the respondent.
ROMERO-RUIZ v. MUKASEY 10539
OPINION
THOMAS, Circuit Judge:
This petition for review presents the question of whether an
immigrant who did not have lawful permanent resident status
at the time of his mother’s naturalization is eligible for deriva-
tive citizenship. We conclude that he is not, and deny the peti-
tion.
I
Christian Romero-Ruiz was born in Mexico in 1981, and
entered the United States without admission or parole in 1985.
Romero-Ruiz grew up in the United States, attending schools
in Tucson, Arizona. In January 1999, while Romero-Ruiz was
under the age of eighteen, his mother became a naturalized
United States citizen. In March 1999, Romero-Ruiz filed an
application for adjustment of status. While his application was
pending, he left the United States to visit his grandmother in
Mexico. Romero-Ruiz later testified that he understood that
he was not supposed to leave the United States while his
application was pending. Romero-Ruiz attempted to re-enter
the United States in May 2000, and was turned away at the
border. He was eventually allowed to re-enter after claiming
to be a United States citizen.
In 2001, Romero-Ruiz’s application for adjustment of sta-
tus was denied. The stated reasons were that Romero-Ruiz
had abandoned his application by leaving the United States
and that he was inadmissible —and therefore ineligible for
adjustment of status—for having made a false claim to United
States citizenship. Romero-Ruiz was ordered to leave the
United States, but failed to do so. In January 2003, he was
served with a Notice to Appear, charging him with removabil-
ity as an alien present in the United States without having
been admitted or paroled.
10540 ROMERO-RUIZ v. MUKASEY
In a 2003 hearing before an immigration judge (“IJ”),
Romero-Ruiz denied the allegation that he was not a citizen
or national of the United States. He also argued that even if
he was not a United States citizen, he should not be found
inadmissible for having made a false claim to citizenship
because he had reasonably believed that he was a United
States citizen. He testified about the bases for this belief,
including the assurances of teachers and coaches that his
mother’s naturalization while he was under the age of eigh-
teen had conferred citizenship upon him. Romero-Ruiz also
submitted a new application for adjustment of status, based on
his marriage to a United States citizen. In the alternative, he
requested voluntary departure. In addition, Romero-Ruiz
admitted having been convicted of possession, manufacture,
delivery, and advertisement of drug paraphernalia under Ari-
zona Criminal Code § 13-3415, but argued that the conviction
had been set aside.
The IJ denied Romero-Ruiz’s requests for relief, and
ordered him removed to Mexico. The IJ first determined that
Romero-Ruiz was ineligible for derivative citizenship because
he had not been a legal permanent resident at the time of his
mother’s naturalization. The IJ then found Romero-Ruiz sta-
tutorily ineligible for adjustment of status because he had
been convicted of a crime relating to controlled substances,
and because he had made a false claim of United States citi-
zenship. The IJ stated that there was no evidence that
Romero-Ruiz’s application to set aside his conviction had
been approved by a judge. The IJ also found that Romero-
Ruiz did not fall under the exception to inadmissibility for
making a false claim to citizenship because both of his parents
were not United States citizens, and because he had applied
for adjustment of status after his mother had naturalized, thus
indicating that he did not believe her naturalization conferred
citizenship upon him. Finally, the IJ determined that Romero-
Ruiz did not warrant voluntary departure because of his crimi-
nal conviction.
ROMERO-RUIZ v. MUKASEY 10541
Romero-Ruiz appealed to the BIA. On February 25, 2005,
the BIA affirmed the IJ’s determination that Romero-Ruiz did
not qualify for derivative citizenship because he was not a
lawful permanent resident at the time his mother naturalized
or thereafter, and the determination that Romero-Ruiz was
ineligible for adjustment of status due to his false claim of
United States citizenship. The BIA also held that Romero-
Ruiz was not entitled to an exception to inadmissibility
because his father was not a United States citizen. The BIA
mentioned that Romero-Ruiz might also be ineligible for
adjustment of status due to his conviction relating to a con-
trolled substance, but noted that the record was unclear as to
whether the conviction had been set aside. Finally, the BIA
found that the IJ had failed to balance favorable factors
against negative factors in analyzing Romero-Ruiz’s applica-
tion for voluntary departure, and remanded the case to the IJ.
Prior to the hearing on the remanded issue, Romero-Ruiz
filed a letter with the IJ indicating that he would be seeking
cancellation of removal, but he did not file an application for
cancellation of removal. On remand, in addition to requesting
voluntary departure, Romero-Ruiz again pressed his claim for
termination of proceedings based on derivative citizenship
and his application for adjustment of status. He did not men-
tion cancellation of removal at the hearing. The IJ granted
Romero-Ruiz voluntary departure, but otherwise affirmed the
earlier decision denying relief.
Romero-Ruiz again appealed to the BIA. He requested that
his case be remanded again because he had become eligible
for cancellation of removal, but he did not submit an applica-
tion for cancellation. He also reasserted his claim that the IJ
erred by denying his claim of derivative citizenship and appli-
cation for adjustment of status. The government filed a
motion for summary affirmance, noting that the issues on
appeal had already been addressed in the BIA’s February 25,
2005 decision.
10542 ROMERO-RUIZ v. MUKASEY
In August 2006, the BIA dismissed Romero-Ruiz’s appeal.
The BIA determined that Romero-Ruiz had failed to establish
prima facie eligibility for cancellation of removal. Specifi-
cally, the BIA determined that Romero-Ruiz was ineligible
for cancellation of removal because his conviction under Ari-
zona Criminal Code § 13-3415 was a conviction relating to a
controlled substance, and there was no evidence that the con-
viction had been expunged. The BIA also found that Romero-
Ruiz had failed to file an application for cancellation of
removal, and failed to request cancellation during his prior
remand hearing. Finally, citing its February 25, 2005 decision,
the BIA declined to revisit the issues of derivative citizenship
and adjustment of status. Romero-Ruiz petitioned for review
on September 15, 2006.
II
Where the BIA conducts an independent review of the IJ’s
findings, we review the BIA’s decision and not that of the IJ.
Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th
Cir. 2005). We review the BIA’s determination of purely
legal questions de novo. De Martinez v. Ashcroft, 374 F.3d
759, 761 (9th Cir. 2004). We review de novo the legal ques-
tions involved in a claim that a person is a national of the
United States. Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 939
(9th Cir. 2004). We review factual findings made by the BIA
under the deferential substantial evidence standard. Tawadrus
v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004).
We review the BIA’s denial of a motion to remand for
abuse of discretion. See Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1011 (9th Cir. 2006). The BIA abuses its discre-
tion if its decision is “arbitrary, irrational, or contrary to law.”
Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir. 1996).
III
[1] The threshold issue in this appeal is one of pure statu-
tory interpretation: whether a petitioner claiming derivative
ROMERO-RUIZ v. MUKASEY 10543
citizenship need only establish that he was “permanently
residing” in the United States during or after his parent’s natu-
ralization, or whether he must also establish that he was resid-
ing in the United States in some lawful status. We conclude
that, in order to obtain the benefits of derivative citizenship,
a petitioner must not only establish permanent residence, but
also demonstrate that he was residing in some lawful status.
[2] “The starting point for any statutory interpretation is the
language of the statute itself.” Singh v. Gonzales, 499 F.3d
969, 977 (9th Cir. 2007).1 Under former 8 U.S.C. § 1432,2 a
child born outside the United States to alien parents becomes
a citizen upon the naturalization of the parent having legal
custody (where there has been a legal separation of the par-
ents) or the mother (if the child was born out of wedlock) if
(1) “such naturalization takes place while such child is under
the age of eighteen years,” and (2) “such child is residing in
the United States pursuant to a lawful admission for perma-
nent residence at the time of the naturalization of the parent
. . . or thereafter begins to reside permanently in the United
States while under the age of eighteen years.” 8 U.S.C.
§ 1432(a) (repealed 2000).
[3] A plain reading of the statute evidences the requirement
that the child be residing pursuant to lawful admission either
at the time of the parent’s naturalization or at some subse-
1
Because the BIA’s decision in this case was unpublished, and cites no
precedential BIA decision, we do not apply the principles of deference
outlined in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). See Garcia-Quintero v. Gonzales, 455 F.3d
1006, 1011-13 (9th Cir. 2006). The government did not invoke the lesser
form of deference established under Skidmore v. Swift & Co., 323 U.S.
134 (1944).
2
The parties agree that former 8 U.S.C. § 1432 would apply to Romero-
Ruiz’s case, as it was the law in effect at the time Romero-Ruiz’s mother
became a naturalized citizen. See Minanyan v. Gonzales, 401 F.3d 1069,
1075 (9th Cir. 2005). The law currently in effect is codified at 8 U.S.C.
§ 1431.
10544 ROMERO-RUIZ v. MUKASEY
quent time while under the age of 18. The phrase “or thereaf-
ter begins to reside permanently” alters only the timing of the
residence requirement, not the requirement of legal residence.
[4] Romero-Ruiz argues that the plain language of the stat-
ute demands a different interpretation: that a child otherwise
meeting the qualifications becomes a citizen if he is residing
in the United States as a legal permanent resident at the time
of his parent’s naturalization or if he is residing permanently
in the United States (regardless of legal status) at the time of
the naturalization. This interpretation is unreasonable and
contrary to the natural reading of the language. To interpret
the second clause as conferring derivative citizenship on chil-
dren who otherwise meet the requirements as long as they are
permanently living in the United States would render the first
clause — requiring legal permanent residence — superfluous.
It is a well-established principle of statutory construction that
legislative enactments should not be construed to render their
provisions “mere surplusage.” Am. Vantage Cos. v. Table
Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002).
[5] Applying this interpretation of former § 1432 to
Romero-Ruiz’s case, we conclude that he fails to qualify for
derivative citizenship. Romero-Ruiz was already residing in
the United States when his mother naturalized, and was not
residing pursuant to a lawful admission for permanent resi-
dence. Therefore, he cannot satisfy the residence requirement,
and does not qualify for derivative citizenship.
IV
[6] Next, we address whether Romero-Ruiz was entitled to
a waiver of inadmissibility for the purposes of adjustment of
status. In addition to meeting other requirements, a petitioner
for adjustment of status must be admissible to the United
States for permanent residence. 8 U.S.C. § 1255(a). The BIA
determined that Romero-Ruiz was inadmissible because he
had made a false claim to United States citizenship and was
ROMERO-RUIZ v. MUKASEY 10545
ineligible for a statutory exception to inadmissibility. See 8
U.S.C. § 1182(a)(6)(C)(ii). The statutory exception provides
that:
[I]f each natural parent of the alien . . . is or was a
citizen (whether by birth or naturalization), the alien
permanently resided in the United States prior to
attaining the age of 16, and the alien reasonably
believed at the time of making such representation
that he or she was a citizen, the alien shall not be
considered to be inadmissible under any provision of
the subsection based on such representation.
8 U.S.C. § 1182(a)(6)(C)(ii)(II).
[7] For the purposes of this exception, the BIA did not
question whether Romero-Ruiz had “permanently resided in
the United States,” but concluded that because his father “had
always lived in Mexico as a Mexican citizen, the requirements
for the exception to a false claim for citizenship can not be
met, and, as the respondent is inadmissible, he is precluded
from adjusting his status.” We agree.
Romero-Ruiz argues that the statutory exception should be
expanded to include individuals born out of wedlock who rea-
sonably believe they are United States citizens, despite having
only one parent who is a United States citizen. Romero-Ruiz
argues that the statutory requirement that each parent “is or
was” a citizen establishes that the statute does not require both
parents to currently be citizens. He can point to no statutory
or case law, however, that supports a reading of the statute
broad enough to include children with one parent who has
never been a United States citizen. Accordingly, the BIA cor-
rectly determined that Romero-Ruiz is ineligible for the statu-
tory exception, and thus inadmissible and ineligible for
adjustment of status. Given this holding, we need not address
whether Romero-Ruiz would satisfy the other pre-requisites
for adjustment of status.
10546 ROMERO-RUIZ v. MUKASEY
V
Romero-Ruiz’s final argument is that the BIA abused its
discretion in denying Romero-Ruiz’s motion to remand on the
ground that he failed to establish prima facie eligibility for
cancellation of removal. The formal requirements of a motion
to remand and a motion to reopen are the same. Rodriguez v.
INS, 841 F.2d 865, 867 (9th Cir. 1987). A motion to reopen
is based on factual grounds, and seeks a fresh determination
based on newly discovered evidence or a change in the appli-
cant’s circumstances since the time of the hearing. See 8
U.S.C. § 1229a(c)(7)(B). A petitioner may also move to
reopen for the purpose of submitting a new application for
relief, provided such motion is accompanied by the proper
application for relief and all supporting documentation, and
the evidence sought to be offered is material and was not
available and could not have been presented at the former
hearing. See 8 C.F.R. § 1003.2(c)(1).
[8] Romero-Ruiz requested remand—for the purpose of
considering whether he was eligible for cancellation of
removal—in the opening brief of his second appeal to the
BIA, not in an official motion to remand. The BIA correctly
treated this request as a motion to reopen. See Rodriguez, 841
F.2d at 867. The request for remand was not accompanied by
an application for cancellation of removal. In addition, the
evidence Romero-Ruiz sought to offer—evidence that his
drug paraphernalia conviction had been set aside—had been
available as early as October 2003. Under the circumstances
present here, the BIA did not abuse its discretion in determin-
ing that Romero-Ruiz did not satisfy the procedural require-
ments for a remand motion.3
3
Because we hold that the BIA properly denied Romero-Ruiz’s request
for remand on the ground that he failed to satisfy the procedural require-
ments of a motion to reopen, we do not address his argument that the BIA
erred by denying remand on the additional ground that his conviction ren-
dered him ineligible for cancellation.
ROMERO-RUIZ v. MUKASEY 10547
Romero-Ruiz argues that the BIA violated his due process
rights by announcing a new procedural rule without notice.
That a request for remand may be treated as a motion to
reopen has been established in case law, and that a motion to
remand requires a completed application for relief has been
codified. See Rodriguez, 841 F.2d at 867; 8 C.F.R.
§ 1003.2(c)(1). The BIA did not announce a new procedural
rule without notice.
VI
For the foregoing reasons, we deny Romero-Ruiz’s petition
for review.
PETITION DENIED.