Gordon v. Holder , 368 F. App'x 250 ( 2010 )

07-3691-ag (L), 08-3776-ag (Con)
Gordon v. Holder
BIA
A34 155 714
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OF AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 5 th day of March, two thousand and ten.
PRESENT: BARRINGTON D. PARKER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
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TROY ANTHONY FRANCIS GORDON,
Petitioner,
-v.- No. 07-3691-ag (L),
08-3776-ag (Con)
ERIC H. HOLDER, JR.,
Respondent.
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Appearing for the Petitioner: H. RAYMOND FASANO , Madeo & Fasano, New York, New
York.
Appearing for the Respondent: ANDREW B. INSENGA , (Tony West, William C. Peachey, on
the brief), Trial Attorney, Office of Immigration Litigation,
United States Department of Justice, Washington, D.C.
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Petitions from two decisions of the Board of Immigration Appeals. UPON DUE
CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the
petitions for review are DISMISSED.
Petitioner Troy Anthony Francis Gordon, a native and citizen of Jamaica, petitions for
review of a July 30, 2007 order of the BIA, denying his motion to reopen. The BIA found that
Gordon was not entitled to reopening because he had no colorable claim to United States
citizenship on the basis of derivative citizenship and had shown no prejudice resulting from any
putative ineffective assistance of counsel. In re Troy Anthony Francis Gordon, No. A 34 155 714
(B.I.A. Jul 30, 2007). Gordon also petitions for review of a June 30, 2008 order of the BIA that
denied Gordon’s motion to reopen, in which he had argued that a putative change in the law
entitled him to United States citizenship. In re Troy Anthony Francis Gordon, No. A 34 155 714
(B.I.A. Jun 30, 2008).
Gordon was ordered removed in abstentia from the United States on December 4, 1991
under former section 241(a)(11) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §
1251(a)(11) (1989) as an alien convicted of a controlled substance violation. His application for
waiver of deportation was deemed abandoned, and over nearly two decades he has filed multiple
motions to reopen and appeals to the BIA. In the first of the two motions to reopen under
consideration here, Gordon claimed, inter alia, that he derived citizenship from his parents.
Prior to our considering the first petition, Gordon filed to the BIA a second motion to reopen
asserting there had been a change in law, specifically this court’s disposition in Poole v.
Mukasey, 522 F.3d 259 (2d Cir. 2008). We stayed briefing on the first petition, and after the BIA
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denied Gordon’s second motion to reopen, we consolidated the two. We assume the parties’
familiarity with the underlying facts and procedural history in this case.
Gordon seeks in part to have this court review the BIA’s exercise of its authority under 8
C.F.R. § 1003.2(a) to reopen sua sponte a case in which it has rendered a decision. It is settled
law that courts lack jurisdiction to consider the BIA’s wholly discretionary authority under 8
C.F.R. § 1003.2(a). See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Except to the extent
discussed below, we are without jurisdiction in these two matters and the petitions will be
dismissed.
Our lack of jurisdiction to review the BIA’s discretionary decision does not foreclose this
court’s jurisdiction to consider the legal question of whether petitioner is a citizen of the United
States. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). “[I]f a petitioner claims to be a
national of the United States and the court of appeals finds from the pleadings and the affidavits
that no genuine issue of material fact about the petitioner’s nationality is presented, the court
shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A). If a genuine question of material
fact does arise, the Court “shall transfer proceedings to the district court of the United States for
the judicial district in which the petitioner resides for a new hearing on the nationality claim and
a decision on that claim . . ..” See 8 U.S.C. § 1252(b)(5)(B). In the alternative, in considering a
claim to derivative citizenship that was already presented to the BIA, we retain the authority to
remand that question to the BIA for reconsideration of what relief might be available to the
petitioner. See Poole, 522 F.3d at 266.
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We consider a claim to United States citizenship on appeal from the BIA using the same
standard as that applies to deciding a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure. See Agosto v. INS. 436 U.S. 748, 754 (1978). “Accordingly, the
government, as the party seeking what amounts to summary judgment, ‘bears the burden of
establishing that no genuine issue of material fact exists and that the undisputed facts establish
[its] right to judgment as a matter of law.’” Joseph v. Att’y Gen. of the U.S., 421 F.3d 224, 230
(3d Cir. 2005) (quoting Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995)).
“[T]he non-moving party must offer sufficient proof to allow a reasonable factfinder to decide in
its favor.” Mandell v. County of Suffolk & John Gallagher, 316 F.3d 368, 377 (2d Cir. 2003).
Former section 321(a) of the INA states that a minor born outside the United States is
entitled to United States citizenship upon “the naturalization of both parents . . . if . . . [s]uch
naturalization takes place while such child is under the age of eighteen years, and . . . [s]uch child
is residing in the United States pursuant to a lawful admission for permanent residence at the
time of the naturalization of the parent last naturalized . . ..” 8 U.S.C. § 1432(a). Petitioner
argues that this court’s decision in Poole has established an exception whereby derivative
citizenship should be granted when the last parent to file for citizenship submitted an N-400
Application for Naturalization (“N-400”) before the child’s eighteenth birthday, but, because of
inexplicable administrative delay in processing the application, the parent was naturalized after
the child’s eighteenth birthday. Poole, 522 F.3d at 265. The holding in Poole, however, is
inapplicable to petitioner’s case.
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In Poole, the BIA had not considered petitioner’s claim to derivative citizenship, but
rather dismissed his appeal as untimely filed. Poole, 522 F.3d at 262. We remanded petitioner’s
derivative citizenship claim for the BIA to consider whether a two-year delay in processing
petitioner’s mother’s N-400, should be taken into account as “some basis for relieving
[petitioner] of the requirement that his mother [be] naturalized prior to his eighteenth birthday.”
Id. at 265. We noted that Poole’s mother applied for citizenship fifteen months before his
eighteenth birthday. Id. at 266. “The record provides no indication why the Government took
two years to process her application. A more expeditious processing, if completed within two
years, would have provided [petitioner] with derivative citizenship.” Id. at 265.1
Petitioner was born October 21, 1962. Petitioner’s father was naturalized on May 5, 1977,
when petitioner was fourteen. Petitioner’s mother was naturalized on December 4, 1981, a year
and two months after petitioner’s eighteenth birthday. Construing the facts in the light most
favorable to the petitioner, the earliest date on which petitioner’s mother could be found to have
applied for citizenship is July 2, 1980, one hundred and eleven days before petitioner’s
eighteenth birthday, and one year, five months and two days before the processing of her N-400
was complete and she became a citizen.
The BIA, in its order of June 2008, has already considered Gordon’s arguments and has
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Petitioner also relies upon Lewis v. McElroy, 294 Fed. Appx. 637 (2d Cir. 2008), a
summary order in which we remanded the petitioner’s claim of derivative citizenship to the BIA
for further consideration because the petitioner’s mother’s citizenship application was approved
one month prior to petitioner’s eighteenth birthday, but where naturalization did not occur until
four months later. While illustrative of how Poole has been applied, “[r]ulings by summary
order do not have precedential effect.” Local Rule 32.1.1(a).
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correctly distinguished the instant facts from those in Poole. As the BIA noted, Poole’s mother’s
application was filed fifteen months before his eighteenth birthday, both demonstrating her due
diligence in pursuing citizenship in a timely way to benefit her son and making it more likely that
Poole was disadvantaged by an unreasonable delay on the agency’s part in processing the
application. Here Gordon’s mother’s application was filed less than four months before he
turned eighteen. We therefore cannot say here, as we did in Poole, that a “more expeditious
processing, if completed within two years, would have provided the petitioner with derivative
citizenship.” Poole, 522 F.3d at 265. Even had the INS taken only four months to process
petitioner’s mother’s N-400, petitioner would still be ineligible for derivative citizenship.
Also in contradistinction to Poole, where the BIA had not considered the petitioner’s
claim to derivative citizenship at all, here the BIA considered, and rejected, Gordon’s claim that
he was entitled to derivative citizenship through his mother. In rejecting that claim the BIA
found no evidence to suggest that the four-month delay at issue was “untoward.” Gordon has
offered no rationale for our rejecting the BIA’s conclusion, and there is no basis in the record or
in common experience to suggest that four months is an unreasonably long time for processing a
naturalization application.2 While the jurisprudence of this Circuit permits, under certain limited
circumstances, a remand to the BIA for reexamination of “what relief, if any, might be accorded .
. . with respect to [a] claim to derivative citizenship,” this is not one of those cases. Poole, 522
F.3d at 266.
2
Lewis is even less helpful to Gordon than Poole, since Lewis’s mother’s application was
approved one month before his eighteenth birthday, and her swearing-in ceremony was delayed
for no apparent reason. Gordon’s mother’s N-400 application for citizenship, in contrast, was
not approved until well after his eighteenth birthday had passed.
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Gordon having failed to adduce evidence suggesting that the BIA overlooked some factor
bearing on the timing of his mother becoming a United States citizen, and the BIA having
provided all the consideration that was due to Gordon’s arguments, Gordon has no cognizable
claim to United States citizenship under former section 321(a) of the INA. Having resolved that
claim, we lack jurisdiction to consider any further the BIA’s exercise of its sua sponte authority
under 8 C.F.R. § 1003.2(a). The petition for review is hereby DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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