Suarez v. Ashcroft , 69 F. App'x 184 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LUIS ALBERTO SUAREZ, 
Petitioner,
v.  No. 02-1813
JOHN ASHCROFT, Attorney General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.
(A42-795-997)
Submitted: June 17, 2003
Decided: July 10, 2003
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
COUNSEL
Jay S. Marks, MARKS & KATZ, L.L.C., Silver Spring, Maryland,
for Petitioner. Robert D. McCallum, Jr., Assistant Attorney General,
Emily Anne Radford, Assistant Director, Papu Sandhu, Senior Litiga-
tion Counsel, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
2 SUAREZ v. ASHCROFT
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Luis Suarez, born in Lima, Peru, in 1980, entered the United States
as a lawful permanent resident in 1990. His parents were married in
the District of Columbia in 1987; his mother became a naturalized
United States citizen in 1996.
In 1998, Suarez was convicted in Maryland state court of attempted
armed carjacking, and was sentenced to ten years imprisonment with
six years suspended. The Immigration and Naturalization Service1
served Suarez with a notice to appear, alleging that he was subject
to removal as an aggravated felon pursuant to 8 U.S.C.
§ 1127(a)(2)(A)(iii) (2000). Suarez filed an application for citizen-
ship, arguing that he had acquired derivative United States citizenship
upon his mother’s naturalization, in accordance with 8 U.S.C.
§ 1432(a)(3) (1994).2 This argument was rejected in administrative
proceedings on the ground that there had been no legal separation of
Suarez’s parents, as required under the statute. The immigration judge
and the Board of Immigration Appeals thus concluded that Suarez
was an alien removable for having been convicted of an aggravated
felony.
Because Suarez is removable as an aggravated felon under 8
1
The Immigration and Naturalization Service ceased to exist as an
independent agency within the Department of Justice and its functions
were transferred to the newly formed Department of Homeland Security
on March 1, 2003.
2
Section 1432, 8 U.S.C., was repealed by Section 103 of the Child Cit-
izenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631, 1632-33
(2000). Suarez reached the age of 18 in 1998, before enactment of the
2000 Act, and its provisions do not apply retroactively. See Hughes v.
Ashcroft, 255 F.3d 752, 758-60 (9th Cir. 2001).
SUAREZ v. ASHCROFT 3
U.S.C. § 1127(a)(2)(A)(iii), this court does not have jurisdiction to
review the Board’s ruling. 8 U.S.C. § 1252(a)(2)(C) (2000). However,
under Lewis v. INS, 194 F.3d 539, 541-42 (4th Cir. 1999), we have
jurisdiction to determine whether the jurisdictional facts precluding
review are present. In doing so, we assess: (1) whether Suarez is an
alien; and (2) whether he has committed an aggravated felony as
defined in 8 U.S.C. § 1101(a)(43)(B) (2000). Suarez admits that he
committed a qualifying aggravated felony. Therefore, the only issue
before us is whether Suarez is an alien or whether he is a United
States citizen, as he claims.
We conclude that, under § 1432(a)(3), the term "legal separation"
means a judicial separation. See Nehme v. INS, 252 F.3d 415, 426 (5th
Cir. 2001). Suarez’s parents had no judicially sanctioned separation.
Thus, we agree with the Attorney General that Suarez did not acquire
derivative citizenship upon his mother’s naturalization, and therefore
remains an alien. As we find Suarez to be an alien convicted of an
aggravated felony, we are without jurisdiction to review the decision
of the Board. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED