Bordamonte v. Attorney Gen. of the United States
| Decision Date | 20 January 2016 |
| Docket Number | No. 15-2423,15-2423 |
| Parties | ROBINSON W. BORDAMONTE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
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.
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 As support, he relies on a statute formerly codified at 8 U.S.C. § 1432(a), which was repealed by Congress in 2000 and which provided that an alien child automatically acquired citizenship upon the naturalization of his custodial parent, if "there ha[d]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 alawful 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 asremovable 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 citizenship.
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 notaddressed 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 256-57.
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 - conferringderivative 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 Gen., 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) ().
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'snaturalization." 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...
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