Berroa-Bodre v. Attorney General of the United States , 423 F. App'x 128 ( 2011 )

ALD-150 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3374
___________
IVELISSE BERROA-BODRE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A44-448-672)
Immigration Judge: Honorable Annie Garcy
____________________________________
Submitted on the Respondent’s motion for Summary Action Pursuant to Third Circuit
LAR 27.4 and I.O.P. 10.6
March 31, 2011
Before: SCIRICA, HARDIMAN AND VANASKIE, Circuit Judges
(Opinion filed: April 8, 2011)
_________
OPINION
_________
PER CURIAM
In 1993, Ivelisse Berroa-Bodre, a native of the Dominican Republic, was allegedly
adopted by her stepmother who was a United States citizen by birth. In 1994, Berroa-
1
Bodre was admitted to the United States as a lawful permanent resident. In 1995, when
she was 17, her father and stepmother divorced. In October 2007, Berroa-Bodre was
charged as removable for her convictions for aggravated felonies and a controlled
substance offense. She filed a counseled motion to terminate the proceedings and argued
that she had acquired United States citizenship. The IJ concluded that Berroa-Bodre did
not derive citizenship through her adoption by her United States citizen stepmother.
Berroa-Bodre appealed pro se to the BIA. The BIA dismissed the appeal. Berroa-Bodre
filed a pro se petition for review. After she filed her brief, the government filed a motion
for summary denial of the petition.
We have jurisdiction under 8 U.S.C. § 1252. Because there are no genuine issues
of material fact, we may decide Berroa-Bodre’s citizenship claim. 8 U.S.C.
§ 1252(b)(5)(A). We exercise plenary review over the denial of her claim of citizenship.
See Jordan v. Att’y Gen., 424 F.3d 320, 328 (3d Cir. 2005). Berroa-Bodre cannot derive
citizenship under the Child Citizenship Act of 2000 (CCA) because she was over the age
of 18 when the CCA became effective in February 2001, and the CCA does not apply
retroactively. Morgan v. Att’y Gen., 432 F.3d 226, 230 n.1 (3d Cir. 2005). The BIA
correctly determined that former 8 U.S.C. §§ 1431-32 did not apply to Berroa-Bodre
because her adoptive mother was already a citizen by birth and those sections applied to
an adopted child who resides in the United States at the time of the naturalization of her
adoptive parent. The BIA also correctly concluded that Berroa-Bodre did not qualify
under former 8 U.S.C. § 1433 because she did not acquire a certificate of citizenship
2
before her 18th birthday. Former section 1433 allowed a citizen parent to apply for a
certificate of citizenship for a child born outside the United States if the child is under
eighteen years of age, was lawfully admitted, and is in the legal custody of the citizen
parent. Berroa-Bodre does not argue that her adoptive mother applied for a certificate of
citizenship on her behalf before Berroa-Bodre turned 18.
In her brief, Berroa-Bodre does not challenge her removability but states that she
is seeking to challenge her criminal conviction on which the charge of removability is
based. However, the pendency of a post-conviction motion does not negate the finality of
a conviction for immigration purposes until the conviction is overturned. Paredes v.
Att’y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008). Berroa-Bodre argues that the
Immigration Judge should have given her time to vacate her conviction. She did not
argue this issue before the BIA; thus, we lack jurisdiction to consider her argument. An
alien must exhaust her remedies as to each ground for relief. Cheng v. Att’y Gen., 623
F.3d 175, 185 n.5 (3d Cir. 2010). In any event, the IJ adjourned her case several times to
allow her to support the citizenship claim. Moreover, she was charged as removable in
October 2007, and the IJ did not order her removed until March 2010.
Summary action is appropriate if there is no substantial question presented in the
petition. See Third Circuit LAR 27.4. For the reasons above, we will summarily deny
the petition for review. See Third Circuit I.O.P. 10.6.
3