Gil v. Sessions

• Decision Date: 17 March 2017
• Docket Number: Docket No. 15-3134-ag,August Term 2016
• Citation: 851 F.3d 184
• Parties: July Rafael Bueno GIL, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

851 F.3d 184

July Rafael Bueno GIL, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.^*

Docket No. 15-3134-ag

August Term 2016

United States Court of Appeals, Second Circuit.

Argued: October 31, 2016

Decided: March 17, 2017

Joshua E. Bardavid , New York, New York, for Petitioner.

Lisa M. Damiano , Trial Attorney, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Walker, Hall, and Chin, Circuit Judges.

Chin, Circuit Judge:

Petitioner July Rafael Bueno Gil ("Gil") seeks review of a September 10, 2015 decision of the Board of Immigration Appeals ("BIA") affirming the decision of an Immigration Judge ("IJ") finding him ineligible for derivative citizenship and denying his motion to terminate removal proceedings. Gil was born in the Dominican Republic and was admitted to the United States as a lawful permanent resident. His parents never married. Gil contends that he became a U.S. citizen derivatively when his father was naturalized in 1980, when Gil was eleven years old. The IJ and the BIA determined that Gil was not a "child" eligible for derivative citizenship because he was not "legitimated" within the meaning of the Immigration and Nationality Act (the "INA"). We agree and, accordingly, we dismiss the petition for review.

BACKGROUND

The facts are undisputed. Gil was born out of wedlock on December 6, 1968 in the Dominican Republic to two Dominican citizens. His parents never married. In December 1974, his father appeared before a State Civil Official of the National District of the Dominican Republic, publicly acknowledged Gil as his biological son, and declared paternity over him. Gil's mother died in January 1976. Gil entered the United States in February 1978, when he was nine years old, as a lawful permanent resident and lived with his father.

Gil's father became a naturalized U.S. citizen in November 1980, when Gil was eleven years old. Gil thereafter received a Certificate of Citizenship on the basis that he derived citizenship as a result of his father's naturalization.

Gil was convicted in New York state court of first-degree robbery in January 1987 and was convicted in federal court of a controlled substance offense in August 1995. In September 2010, U.S. Citizenship and Immigration Services ("USCIS") determined that Gil's Certificate of Citizenship was unlawfully or fraudulently obtained because he was not a qualifying "child" under the INA's requirements for derivative citizenship and, as a result, it canceled his Certificate of Citizenship. The Department of Homeland Security instituted removal proceedings, served Gil with a Notice to Appear, and charged him as an alien removable under sections 237(a)(2)(A)(iii) and (B)(i) of the INA, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i), based on his convictions.

On November 18, 2013, the IJ rejected Gil's claim to derivative citizenship through his father's naturalization on the basis that Gil did not "legitimate" under Dominican or New York law before reaching the age specified in the INA. The IJ found him removable as charged, denied his motion to terminate the removal proceedings, and ordered him removed to the Dominican Republic. On September 10, 2015, the BIA agreed that Gil did not become a legitimated child before turning sixteen years old, affirmed the IJ's finding that Gil did not derive citizenship through his father, and affirmed the denial of the motion to terminate removal proceedings.

This petition followed.

DISCUSSION

We review the question of derivative citizenship de novo where, as here, "the petitioner claims to be a national of the United States" and the record presents "no genuine issue of material fact about the petitioner's nationality." Morales-Santana v. Lynch , 804 F.3d 520, 525 (2d Cir. 2015) (quoting 8 U.S.C. § 1252(b)(5)(A) ).¹

A. Derivative Citizenship

To determine whether an alien obtained derivative citizenship through a parent's naturalization, we look to "the law in effect when [petitioner] fulfilled the last requirement for derivative citizenship." Poole v. Mukasey , 522 F.3d 259, 264 (2d Cir. 2008) (alteration in original) (quoting Ashton v. Gonzales , 431 F.3d 95, 97 (2d Cir. 2005) ).

In 1980, when Gil's father became a naturalized citizen, former section 321(a) of the INA provided that:

A child born outside of the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such 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 under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432(a), repealed by Child Citizenship Act of 2000, Pub. L. 106–395, § 103, 114 Stat. 1631, 1632 (2000); see also Smart v. Ashcroft , 401 F.3d 119, 122 (2d Cir. 2005). The parties agree that former § 321(a) applies here. See Smart , 401 F.3d at 122 ("The CCA changes do not benefit [petitioner] because the CCA is not retroactive, and [petitioner] was no longer under eighteen years old upon its enactment." (internal citation omitted)).

Section 101(c)(1) of the INA defines the term "child" as

an unmarried person under twenty–one years of age and includ[ing] a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, ... if such legitimation ... takes place before the child reaches the age of 16 years ..., and the child is in the legal custody of the legitimating ... parent ... at the time of such legitimation ....

8 U.S.C. § 1101(c)(1). The statute "make[s] clear, for derivative citizenship purposes, [that] a person born out of wedlock is considered a ‘child’ of his United States citizen parent or parents only if he was "legitimated" under the law of his own residence or domicile (or that of his father) before turning 16." Matter of Cross , 26 I. & N. Dec. 485, 487 (BIA 2015) (emphasis added).

Although the INA does not define the term "legitimated," the BIA has interpreted it "to refer to a child born out of wedlock who has been accorded legal rights that are identical to those enjoyed by a child born in wedlock." De Los Santos v. Immigration & Naturalization Serv. , 690 F.2d 56, 58 (2d Cir. 1982) (citation omitted); see also In re Cabrera , 21 I. & N. Dec. 589, 591 (BIA 1996) ("In prior precedent decisions, we have defined legitimation as the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.") (citation omitted). The BIA has also held that

a person born abroad to unmarried parents can qualify as a legitimated ‘child’ under section 101(c)(1) of the Act if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in such a country or State.

Cross , 26 I. & N. Dec. at 485–86.

Gil's claim to derivative citizenship turns on whether he qualified as a legitimated "child" within the meaning of § 101(c)(1). The issue on appeal is whether, before he reached the statutory age of sixteen years old, Gil was "legitimated" under the laws of the Dominican Republic or New York, i.e. , whether in that time frame Dominican or New York law had eliminated all legal distinctions between children born in and out of wedlock. The burden falls on Gil to show he met this requirement. See Grant v. U.S. Dep't of Homeland Sec. , 534 F.3d 102, 105 (2d Cir. 2008) ("[A]n alien born out of wedlock ... must show, at a minimum, that he has been legitimated in order to achieve citizenship based on his father's citizenship."); see also Berenyi v. Dist. Dir., Immigration & Naturalization Serv. , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967) ("[I]t has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect.").

B. Application

1. Dominican Law

Gil concedes he was not a legitimated child under Dominican law at the time his father became a naturalized citizen in 1980. He argues instead that, due to the retroactive application of a subsequently enacted law, the Dominican Republic now treats him as gaining legitimating status at the time of his birth, well before his father received naturalized citizenship. We are not persuaded.

In 1980, the Dominican law in effect accorded different succession rights to children born out of wedlock based on whether their parents later married each other. See De Los Santos , 690 F.2d at 58 (referring to Law 985 of Aug. 1, 1945, art. 1). Under that law, a child born out of wedlock to unmarried parents was entitled to only half the inheritance share attributable to a child born in wedlock or a child born out of wedlock to subsequently married parents. See id. (describing Law 985, art. 10).

In 1994, the Dominican Republic enacted the Code for the Protection of Children (the "Code"), which "changed the Dominican law on parentage and filiation to eliminate all legal distinctions between children born in wedlock and those born out of wedlock." In re Martinez-Gonzalez , 21 I. & N. Dec. 1035, 1038 (BIA 1997) (describing the "enactment of Ley No. 14–19...