Robinson Bordamonte v. Attorney General United States ( 2016 )

  •                                                      NOT PRECEDENTIAL
                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                           No. 15-2423
                                ROBINSON W. BORDAMONTE,
                            On Petition for Review of an Order of the
                              United States Department of Justice
                                 Board of Immigration Appeals
                                     (BIA 1:A035-979-158)
                           Immigration Judge: Hon. Alberto J. Riefkohl
                          Submitted Under Third Circuit L.A.R. 34.1(a)
                                       January 19, 2016
          Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
                                     (Filed: January 20, 2016)
            This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
    does not constitute binding precedent.
    JORDAN, Circuit Judge.
           Robinson Bordamonte, a native of the Philippines who claims United States
    citizenship, petitions for review of a Board of Immigration Appeals (“BIA”) decision
    dismissing his appeal from a removal order. In that order, the Immigration Judge (“IJ”)
    denied his motion to terminate removal proceedings and ordered his removal under 8
    U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony. Bordamonte
    argues that, although he never went through naturalization himself, he received derivative
    citizenship automatically while a minor when his mother naturalized in 1978, and that he
    is therefore not an alien at all, let alone a removable alien. As support, he relies on a
    statute formerly codified at 8 U.S.C. § 1432(a), which was repealed by Congress in 2000
    and which provided that an alien child automatically acquired citizenship upon the
    naturalization of his custodial parent, if “there ha[d] been a legal separation of the
    parents.” At the time of his mother’s naturalization, Bordamonte was in her sole custody
    and she had been physically separated from her husband (Bordamonte’s father) for nearly
    six years. But that physical separation had not been formally acknowledged or enforced
    by any government action, as was necessary to be considered a “legal separation” under
    § 1432(a). Accordingly, Bordamonte did not acquire derivative citizenship at the time of
    his mother’s naturalization, and we will deny his petition for review.
           The salient facts of this case are not in dispute. Bordamonte was born in the
    Philippines in 1965 to parents who had married earlier that same year. In 1972,
    Bordamonte’s mother left the Philippines and was admitted to the United States as a
    lawful permanent resident. Bordamonte remained with his father in the Philippines. He
    joined his mother in the United States four year later, when, at the age of ten, he too was
    admitted as a lawful permanent resident. After Bordamonte’s entry, his mother had sole
    custody, and, in 1978, she became a naturalized United States citizen. By that time,
    Bordamonte was twelve years old and had lived in the United States with his mother for
    over two years as a lawful permanent resident. At the time of his mother’s naturalization,
    Bordamonte lived with her in New Jersey and his parents had lived separately for a
    period of nearly six years. Bordamonte’s father came to the United States in 1979 as a
    lawful permanent resident after he and his wife “were able to work out [their] problems”
    and reconcile. (A.R. at 261.) He became a naturalized citizen in 1986.
           Bordamonte has continued to live in the United States as a lawful permanent
    resident, having never pursued naturalization. It is undisputed that he married a United
    States citizen and has two children who are also citizens. In 2011, he was convicted in
    the United States District Court for the District of New Jersey of conspiring to transport
    stolen securities in interstate commerce, in violation of 18 U.S.C. § 371 and contrary to
    18 U.S.C. § 2314, and conspiring to receive falsely made securities in interstate
    commerce, in violation of 18 U.S.C. § 2315 and 18 U.S.C. § 371. He was sentenced to
    thirty-three months’ imprisonment. Two years later, Bordamonte was also convicted in
    New Jersey state court for conspiracy and theft by deception, in violation of N.J. Stat.
    Ann. § 2C:5-2 and § 2C:20-4, and was sentenced to four years’ imprisonment.
           After those convictions, removal proceedings began. The Department of
    Homeland Security served Bordamonte with a notice to appear charging him as
    removable from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been
    convicted of an aggravated felony. Bordamonte filed a motion to terminate removal
    proceedings, asserting that he was not removable but was, instead, a citizen through the
    naturalization of his mother.
           The IJ denied Bordamonte’s motion and concluded that Bordamonte was
    removable based upon his convictions. The IJ’s denial of the motion to terminate
    removal proceedings hinged on the absence of any “document issued by a court altering
    the marital relationship” of Bordamonte’s parents. (A.R. at 162.) The BIA sustained
    Bordamonte’s appeal, holding that the IJ erred by insisting upon a document issued
    specifically by a court rather than any “formal action by a competent government
    authority altering the marital relationship … .” (A.R. at 91.) On remand, a different IJ
    again denied Bordamonte’s motion to terminate, this time on the basis that no evidence,
    issued by any government authority (court or otherwise), existed to establish his parents’
    legal separation within the meaning of 8 U.S.C. § 1432(a), as required for Bordamonte to
    have received derivative citizenship from his mother’s naturalization. The BIA dismissed
    Bordamonte’s appeal, and this timely petition for review followed. In his petition,
    Bordamonte does not contest that his convictions render him removable from the United
    States if he is not actually a citizen. 1 His petition rests entirely on his claim of derivative
            Indeed, since the first IJ concluded that Bordamonte was convicted of an
    aggravated felony, he has not challenged that conclusion. Accordingly, even had
    Bordamonte tried to contest that status here, we would have been without jurisdiction to
    address the issue. See Abdulrahman v. Ashcroft, 
    330 F.3d 587
    , 594-95 (3d Cir. 2003)
    II.    DISCUSSION 2
           Typically, “[i]n reviewing the merits of Petitioner’s claims, this Court reviews the
    agency’s conclusions of law de novo, ‘subject to established principles of deference.’”
    Mendez-Reyes v. Att’y Gen., 
    428 F.3d 187
    , 191 (3d Cir. 2005) (quoting Wang v. Ashcroft,
    368 F.3d 347
    , 349 (3d Cir. 2004)). These “principles of deference” include the deference
    owed to administrative agencies pursuant to Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, Inc., 
    467 U.S. 837
    , 844 (1984). But “because there are dual sources of
    jurisdiction applicable here, a split exists among courts of appeals on whether the BIA’s
    interpretation of section 1432(a) is subject to the deferential review specified in
    Chevron.” Brandao v. Att’y Gen., 
    654 F.3d 427
    , 428 (3d Cir. 2011). We have not
    (holding that the Court lacks jurisdiction to review issues not raised before the BIA
    because 8 U.S.C. § 1252(d)(1) provides for judicial review of final orders of removal
    “only if … the alien has exhausted all administrative remedies”).
             The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We exercise
    jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Although the jurisdictional statute strips
    us of jurisdiction to review a final order of removal against an alien who is removable by
    virtue of an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), it also requires that we decide
    an alien’s claim of citizenship unless the claim presents disputed factual issues, 8 U.S.C.
    § 1252(b)(5)(A), and grants jurisdiction to review constitutional claims and questions of
    law, 8 U.S.C. § 1252(a)(2)(D). Reading these provisions together, “we have jurisdiction
    to consider any constitutional or legal claims that may be presented in this petition for
    review.” Morgan v. Att’y Gen., 
    432 F.3d 226
    , 229 (3d Cir. 2005). Because “[t]he issue
    of derivative citizenship is a purely legal issue of statutory interpretation,” id., we have
    jurisdiction to decide the merits of Bordamonte’s claim of derivative citizenship. See
    Jordon v. Att’y Gen., 
    424 F.3d 320
    , 328 (3d Cir. 2005) (“[W]e may thus examine claims
    of constitutional or legal error, including [the alien’s] derivative citizenship claim.”); see
    also Brandao v. Att’y Gen., 
    654 F.3d 427
    , 428 (3d Cir. 2011) (“While we generally do
    not have jurisdiction to review an aggravated felon’s removal order, we do have
    jurisdiction to determine our jurisdiction, particularly in cases such as this where the
    petitioner claims to be a national of the United States, and no material issues of fact are
    presented.” (internal citation omitted)).
    addressed the issue in the past, and we need not address it here, as deference to the BIA
    would not alter our conclusion in this case. Id.
           “There are two sources of citizenship, and two only: birth and naturalization.”
    Miller v. Albright, 
    523 U.S. 420
    , 423 (1998) (internal quotation marks omitted). As
    Bordamonte concedes, he was not born in the United States, so naturalization is his only
    possible basis for claiming citizenship. An alien can only become a naturalized citizen
    “in strict compliance with the terms of an authorizing statute,” INS v. Pangilinan, 
    486 U.S. 875
    , 884 (1988), and “[a]ll doubts should be resolved in favor of the United States
    and against the claimant,” Bagot v. Ashcroft, 
    398 F.3d 252
    , 257 (3d Cir. 2005) (internal
    quotation marks omitted). Bordamonte bears the burden to prove his citizenship. Id. at
           For his claim of citizenship, Bordamonte relies solely upon former 8 U.S.C.
    § 1432(a). That section “distinguishes between the children of still-married parents, who
    automatically acquire citizenship only if both parents are naturalized, and the children of
    legally separated, widowed, and unmarried parents, who automatically acquire
    citizenship if the custodial parent is naturalized.” Brissett v. Ashcroft, 
    363 F.3d 130
    , 134
    (2d Cir. 2004). In relevant part, § 1432(a) provides that a “child born outside of the
    United States of alien parents ... becomes a citizen of the United States upon ... [t]he
    naturalization of the parent having legal custody of the child when there has been a legal
    separation of the parents ... .” 8 U.S.C. § 1432(a). 3 That distinction – conferring
             The statute also required that the child be under eighteen years of age and
    residing in the United States as a lawful permanent resident at the time of the custodial
    derivative citizenship when a custodial parent has been naturalized, but only if the couple
    has been legally separated – was intended to “protect[] the rights of alien parents by
    limiting circumstances in which it (derivative citizenship) can occur.”4 Catwell v. Att’y
    623 F.3d 199
    , 211 (3d Cir. 2010). An alien who acquires derivative citizenship
    under that provision does so by operation of law. In re Fuentes-Martinez, 21 I. & N.
    Dec. 893, 896 (B.I.A. 1997) (“No application is filed, no hearing is conducted, and no
    certificate is issued when such citizenship is acquired.”).
           Although § 1432(a) was repealed in 2000,5 it continues to control claims of
    derivative citizenship in cases such as this one, where “all relevant events respecting [the
    alien’s] claimed derivative citizenship occurred prior to” its repeal. Jordon v. Att’y Gen.,
    424 F.3d 320
    , 328 (3d Cir. 2005). “The relevant times are the date of the child’s birth,
    the time of the child’s entry into the United States, and the date of the parent’s
    parent’s naturalization, 8 U.S.C. § 1432(a)(4)-(5), neither of which conditions are in
    dispute here. Although former 8 U.S.C. § 1432(a)(1) also provided for derivative
    citizenship upon “[t]he naturalization of both parents,” that provision does not apply to
    Bordamonte because his father’s 1986 naturalization occurred when he was no longer
    under eighteen years of age. Bordamonte makes no argument that his father’s
    naturalization resulted in his derivative citizenship.
             “[Legislative] history indicates that Congress wanted to ensure that only those
    alien children whose ‘real interests’ were located in America with their custodial parent,
    and not abroad, should be automatically naturalized. We also think Congress could have
    rationally concluded that requiring the naturalization of both parents of the alien child,
    when the parents remain married, was necessary to promote marital and family harmony
    and to prevent the child from being separated from an alien parent who has a legal right
    to custody.” Nehme v. INS., 
    252 F.3d 415
    , 425 (5th Cir. 2001).
             On October 30, 2000, Congress repealed § 1432 by enacting the Child
    Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (2000), effective February
    27, 2001, which, inter alia, eliminates the “legal separation” condition for derivative
    citizenship after naturalization of a custodial parent.
    naturalization.” Morgan v. Att’y Gen., 
    432 F.3d 226
    , 230 (3d Cir. 2005). Bordamonte
    does not dispute the applicability of § 1432(a) to his claim of derivative citizenship.
           Rather, the sole issue in dispute is whether Bordamonte’s parents were legally
    separated at the time of his mother’s naturalization in 1978, as is required for his claim of
    citizenship to be legitimate. Bordamonte contends that his parents were legally separated
    because New Jersey law provides – and so provided in 1978 – that a period of at least
    eighteen consecutive months of separate habitation establishes sufficient grounds for
    divorce and a “presumption that there is no reasonable prospect of reconciliation.” N.J.
    Stat. Ann. § 2A:34-2(d). At the time of his mother’s naturalization, Bordamonte’s
    parents had lived apart for six years. To Bordamonte, the fact that such a period of
    separation provides grounds for divorce also qualifies it as a “legally recognized
    separation in New Jersey.” (Opening Br. at 18.)
           We rejected substantially the same argument in Morgan v. Attorney General, 
    432 F.3d 226
     (3d Cir. 2005). There, the petitioner’s parents had been living separately for at
    least four years at the time of her mother’s naturalization, and the petitioner claimed that
    her parents were thus legally separated by virtue of Pennsylvania’s “no fault” divorce
    statute, which permitted a divorce when the couple had lived apart for at least two years.
    Id. at 233. In rejecting the claim of derivative citizenship, we surveyed our sister circuits
    and concluded that “every court of appeals that has considered the question has
    concluded that a ‘legal separation’ requires some formal action.” Id. at 232.
    Accordingly, we held “that a legal separation for purposes of § 1432(a) occurs only upon
    a formal governmental action, such as a decree issued by a court of competent
    jurisdiction that, under the laws of a state or nation having jurisdiction over the marriage,
    alters the marital relationship of the parties.” Id. at 234. We reasoned that “including an
    informal separation within the provision’s terms would effectively eviscerate the force of
    the term ‘legal’ from the statute.” Id. (internal quotation marks omitted). Consistent with
    that holding, we rejected the claimant’s argument regarding her parent’s legal separation
    because it “overlook[ed] the requirement that separation in Pennsylvania is recognized
    only by a divorce secured through a judicial order.” Id. “Without the entry of the decree
    there ha[d] been no change in the legal existence of the marriage … .” Id.
           The same holds true here. Bordamonte does not dispute that no formal
    government action recognized or gave legal effect to his parents’ lengthy separation. To
    the contrary, he repeatedly emphasizes in his brief that his parents had a “private
    agreement” to separate. (Opening Br. at 5, 20-21.) But that private agreement has no
    legal effect under New Jersey law. As in Morgan, we “defer to the jurisdiction[] with
    authority over the marriage to determine the meaning of legal separation for purposes of
    § 1432(a)(3).” Morgan, 432 F.3d at 233. Under New Jersey law, which both sides agree
    had authority over the marriage at issue here, a private agreement to separate requires
    judicial imprimatur before it will have legal effect. Cf. Konzelman v. Konzelman, 
    729 A.2d 7
    , 15 (N.J. 1999) (stating that courts may only give effect to “consensual
    agreements … provided their provisions fully reflect the mutual wishes of the parties and
    their enforcement is fair and just”). As Bordamonte points out, his parents’ separation
    made them “eligible for divorce” (Reply Br. at 4), but that eligibility had not been given
    legal effect by any formal governmental action, as required by Morgan.
           Bordamonte hangs much of his argument to the contrary on Morgan’s recognition
    that “[c]onceivably, some jurisdictions might consider parties ‘legally separated’ if they
    lived apart for a period of time without seeking any governmental imprimatur.” Morgan,
    432 F.3d at 234 n.4 (noting also that “[w]e know of no jurisdiction that has adopted such
    a policy”). But what he fails to recognize is that New Jersey is not such a jurisdiction.
    The fact that Bordamonte’s parents had privately agreed to separate, and may have had
    legal cause for divorce by virtue of that separation, did not, in itself, effect a legal change
    in their marital status under New Jersey law. In listing the possible grounds for divorce,
    New Jersey law notes that divorce “may be adjudged” for any of the listed reasons,
    including separation. N.J. Stat. Ann. § 2A:34-2. The statute “does not create a vested
    right to a divorce … .” Dunston v. Dunston, 
    305 A.2d 813
    , 814 (N.J. Super. Ct. Ch. Div.
    1973). “Mere physical separation of the parties … will not be deemed to terminate a
    marriage.” Portner v. Portner, 
    460 A.2d 115
    , 120 (N.J. 1983); see also Brandenburg v.
    416 A.2d 327
    , 332 (N.J. 1980) (“[M]ere physical separation alone is an
    insufficient indication that a marriage is effectively at an end.”). Absent government
    recognition, the legal significance of his parents’ six-year separation was entirely
    inchoate. Because New Jersey law did not recognize Bordamonte’s parents as “legally
    separated,” as we construed that phrase in Morgan, his claim of derivative citizenship
    must fail.
           While § 1432(a) may be subject to criticism – which is perhaps why Congress has
    since repealed it and eliminated the “legal separation” requirement, see supra note 5 –
    we have jurisdiction only to review any constitutional or legal questions associated with
    Bordamonte’s removal. 8 U.S.C. § 1252(a)(2)(D). “Once it has been determined that a
    person does not qualify for citizenship, ... [a] court has no discretion to ignore the defect
    and grant citizenship.” Pangilinan, 486 U.S. at 884 (internal quotation marks omitted).
    Given our holding in Morgan, and the necessity of formal governmental action to
    recognize and establish a “legal separation” for the purposes of 8 U.S.C. § 1432(a), we
    cannot conclude that Bordamonte’s parents were legally separated at the time of his
    mother’s naturalization in 1978. Accordingly, he did not then receive derivative
    citizenship, and his motion to terminate removal proceedings was properly denied.
           For the foregoing reasons, we will deny the petition for review.