481 F.3d 125 (2nd Cir. 2007), 05-1677, Lewis v. Gonzales

Docket Nº:Docket No. 05-1677-ag.
Citation:481 F.3d 125
Party Name:Kirk Washington LEWIS, Petitioner, v. Alberto R. GONZALES, Attorney General [*], Respondent.
Case Date:March 23, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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481 F.3d 125 (2nd Cir. 2007)

Kirk Washington LEWIS, Petitioner,

v.

Alberto R. GONZALES, Attorney General [*] , Respondent.

Docket No. 05-1677-ag.

United States Court of Appeals, Second Circuit.

March 23, 2007

Submitted: March 9, 2007.

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Israel Arana, Coral Gables, FL, for Petitioner.

Dexter A. Lee, Assistant United States Attorney, Of Counsel (R. Alexander Acosta, United States Attorney, Southern District of Florida, Anne R. Schultz, Kathleen M. Salyer, Assistant United States Attorneys, on the brief), Miami, FL, for Respondent.

Before WINTER, WALKER, and STRAUB, Circuit Judges.

PER CURIAM.

Kirk Washington Lewis petitions for review of a May 6, 2005 order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge Alan A. Vomacka ("IJ") that Lewis neither derived citizenship from his naturalized father nor warranted a discretionary grant of cancellation of removal. The IJ and BIA reasoned that Lewis did not derive citizenship from his father because his parents, who never married, never effected the "legal separation" that 8 U.S.C. § 1432(a)(3) (repealed 2000) requires before a legitimated alien child may derive citizenship through a single parent. We hold that the BIA properly determined that Lewis did not derive citizenship from his father under § 1432(a)(3). 1 In addition, we hold that we lack jurisdiction to review the agency's discretionary denial of cancellation of removal. Finally, we conclude that Lewis waived his remaining argument by failing to raise it before the IJ or the BIA.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was born to Hopeton Lewis and Anne Nurse in Jamaica in September of 1972. His parents never married, but lived together in Jamaica. Hopeton Lewis's name appears on petitioner's birth registration form and, according to petitioner, both parents "duly registered" him as

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their child. Sometime during petitioner's youth, his father and mother ceased their relationship. Petitioner's father then came to the United States, married a U.S. citizen, and was naturalized in March of 1985.

Petitioner resided with his mother in Jamaica until he was 13 years old. In February of 1986 his mother allowed him to leave her custody and live with his father in the United States. The Immigration and Naturalization Service ("INS") issued petitioner a permanent resident visa on account of his status as the child of a naturalized citizen. 2 Petitioner has resided here ever since. Today, petitioner is a 34-year-old man with three young children of his own, all of whom, having been born in the United States, are U.S. citizens. Petitioner, however, never actively sought to become a naturalized U.S. citizen. Nor has his mother, who remains a Jamaican citizen and currently resides in Canada.

In 1999, petitioner was arrested in possession of more than 10 pounds of marijuana and thereafter indicted for criminal possession of marijuana in the first degree, a felony. While that case was pending, he was arrested again for felony marijuana possession. The cases were consolidated, and upon petitioner's conviction he was sentenced to an indeterminate term of between one-and-one-half to four-and-one-half years' imprisonment.

While imprisoned, he received a notice to appear from the INS charging him with removability due to his criminal conviction. See 8 U.S.C. § 1227(a)(2)(B)(i). After his release from prison, petitioner contested the charge of removability before the IJ on the ground that he acquired derivative citizenship through his naturalized father pursuant to 8 U.S.C. § 1432(a)(3). He further urged that even if he did not acquire such status, the IJ should grant him the discretionary remedy of cancellation of removal on the ground that if he were removed, his children would suffer "exceptional and extremely unusual hardship." 8 U.S.C. § 1229b(b)(1)(D).

The IJ ruled against him on both scores. In particular, the IJ determined that petitioner failed to qualify for derivative citizenship via his naturalized father because his parents never achieved a "legal separation" within the meaning of § 1432(a)(3). The IJ also denied cancellation of removal. The IJ noted positive factors weighing in petitioner's favor, such as the fact that he was "a good father to all three [of his] children." On the other hand, the IJ noted negative factors, such as petitioner's lack of forthrightness in reporting his proper address to his parole officer and his criminal history, which stretched back to 1995 and included multiple arrests in addition to the pair described above. Ultimately, the IJ reasoned that because petitioner was likely to recidivate, his children were likely to be without him regardless of whether he was removed to Jamaica and thus any hardship they might suffer from their father's removal would occur in any event.

Petitioner appealed to the BIA, renewing both of his arguments. The BIA affirmed the IJ's order in an opinion dated January 13, 2005. Like the IJ, the BIA determined that petitioner did not qualify for derivative citizenship under § 1432(a)(3) because he failed to establish

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that his parents achieved a "legal separation." The BIA also affirmed the IJ's denial of cancellation of removal in light of certain "adverse factors, such as [petitioner's] conviction for possession of a controlled substance, his deceit involving his parole officer, and the respondent's repeated transportation of marijuana for money."

The BIA failed, however, to properly serve its opinion and order upon petitioner. Ignorant of the fact that the BIA had issued its final order, petitioner failed to file his petition for review within 30 days of that order. See 8 U.S.C. § 1252(b)(1) (requiring petition to be filed within "30 days after the date of the final order of removal"). In mid-March, petitioner learned that he was due to report to the INS for his physical removal from the country. He then contacted his counsel, who took two steps. First, on April 8 petitioner's counsel formally moved the BIA to reissue its decision in a new, final order. Second, that same day, petitioner's counsel filed a petition for review in our court of the BIA's January 13 opinion and order.

In May of 2005 the BIA granted petitioner's motion and reissued its decision in an order dated May 6, 2005. In that order, the BIA (1) recognized "a defect in service" of its prior opinion and order, (2) vacated that prior order, (3) reinstated the case, and (4) issued a new order "as of" May 6 that "incorporat[ed] by reference" its prior opinion. Lewis's counsel never filed in this court a new petition for review of the May 6 order. He concedes that the BIA properly mailed a copy of the May 6 order to him, but maintains that he never received it because he was suffering from "high blood pressure" that prevented him from reviewing his office mail.

On or around June 22, petitioner's counsel was well enough to review his office mail, at which point he became aware of the BIA's May 6 order. By then, however, the 30-day deadline had lapsed for petitioning for review of the May 6 order. In light of this lapse, petitioner's counsel moved in this court to "amend [the] filing date" of his April 8 petition for review "to conform to" the BIA's May 6 order. The government opposed the motion, contending that we lack jurisdiction over Lewis's petition because it is premature as to the May 6 order and because Lewis did not, and now cannot, file a new and timely petition for review of the that order.

As to the merits of the petition, Lewis claims that the BIA erred in rejecting his claim of derivative citizenship and denying him cancellation of removal. Lewis also advances a third, and new, argument before us: that his marijuana conviction is not a controlled substance offense within the meaning of 8 U.S.C. § 1227(a)(2)(B)(I). For reasons explained below, we hold that we have jurisdiction over the petition, which we dismiss in part and deny in part.

II. DISCUSSION

A. We Have Jurisdiction Over Lewis's Petition

Although the parties do not contest it, we note that we normally lack jurisdiction to review a final order of removal entered against an alien because he committed a controlled substance offense, see 8 U.S.C. § 1252(a)(2)(C), but, in cases such as this, retain jurisdiction to review Lewis's claim "that he is a citizen and therefore not removable" at all. Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir.2004). The remaining jurisdictional question is whether we can entertain Lewis's petition as timely filed.

Pursuant to 8 U.S.C. § 1252(b)(1), we lack jurisdiction over a petition that is filed more than 30 days after the BIA's final

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order of removal. See Paul v. INS, 348 F.3d 43, 45 (2d Cir.2003). Here, the BIA issued its final order of removal on May 6 when it reissued its decision. See Firmansjah v. Ashcroft, 347 F.3d 625, 627 (7th Cir.2003) (holding that BIA has power to issue a new order of removal with a new effective date to cure a failure of service).

Lewis clearly filed his petition before the 30-day time period...

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