Cheneau v. Barr

• Decision Date: 19 August 2020
• Docket Number: No. 15-70636,15-70636
• Citation: 971 F.3d 965
• Parties: Monssef CHENEAU, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 965

Monssef CHENEAU, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 15-70636

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2020 Portland, Oregon

Filed August 19, 2020

PER CURIAM:

Monssef Cheneau petitions for review of the Board of Immigration Appeals’ ("BIA") determinations that he does not qualify for derivative citizenship and that his burglary conviction renders him removable. We conclude that Cheneau is not a derivative citizen of the United States. The Immigration Judge ("IJ") and the BIA found that Cheneau was removable because his California burglary conviction was a crime-of-violence aggravated felony. While this appeal was pending, the Supreme Court held that the "crime of violence" statute, as incorporated into the Immigration and Nationality Act's ("INA") definition of aggravated felony, is unconstitutionally vague. See Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1223, 200 L.Ed.2d 549 (2018). Therefore, Cheneau's burglary conviction can no longer support removal as a crime-of-violence aggravated felony. We remand to the BIA to determine whether Cheneau is removable on another ground, including based on his California conviction for receipt of stolen property.

I.

Cheneau was born in December 1984 and is a native of Morocco and a citizen of France. His parents divorced in 1990, and his mother obtained full custody of him. When Cheneau was thirteen, he lawfully entered the United States on a non-immigrant student visa. In July 1999, Cheneau's mother was naturalized as a United States citizen.

In January 2000, when Cheneau was fifteen, his mother filed an I-130 Petition for Alien Relative on his behalf, and Cheneau simultaneously applied for adjustment to lawful permanent resident status based on his mother's pending petition. The Immigration and Naturalization Service ("INS") scheduled Cheneau for an adjustment of status interview but mistakenly mailed the notice of the interview to Cheneau's old address. Cheneau and his mother never received the notice. As a result, Cheneau failed to appear for the interview, and the INS denied his application for adjustment of status because he did not appear.

In January 2003, Cheneau's mother filed a pro se motion to reopen, writing: "We never received a notice for his interview. We moved from the previous address .... We sent our notice for address change[ ] and we sent a lot of inquiry forms for this file. Unfortunately we never received an answer. We just [found] out about the problem." The INS granted the request for reopening and adjusted Cheneau's status to lawful permanent resident in August 2003, when Cheneau was eighteen.

In 2006, Cheneau was convicted of three offenses: (i) burglary in violation of California Penal Code § 459, (ii) receipt of stolen property in violation of California Penal Code § 496(a), and (iii) unlawful taking of a vehicle under California Vehicle Code § 10851(a). Cheneau was again convicted of burglary in August 2009. Following his convictions, the Department of Homeland Security initiated removal proceedings against Cheneau, alleging that he was subject to removal on the grounds that he had been convicted of aggravated felonies and crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A).

Before the IJ, Cheneau argued that his removal proceedings should be terminated because he was a citizen of the United States, having derived citizenship from his mother's naturalization. The IJ rejected Cheneau's derivative citizenship claim on the basis that "he did not attain lawful permanent residence in this country prior to the age of 18." The IJ also determined that two of Cheneau's convictions were for deportable aggravated felonies: burglary, a crime of violence, and receipt of stolen property, a theft offense. See 8 U.S.C. § 1101(a)(43)(F), (G). The IJ expressly made "no findings" as to whether Cheneau had been convicted of a crime involving moral turpitude.

The BIA affirmed. The BIA first held that under former 8 U.S.C. § 1432(a) (1994), Cheneau had not derived citizenship from his mother's naturalization because he did not become a lawful permanent resident before turning eighteen. Further, the BIA affirmed the IJ's determination that Cheneau was removable on the ground that his burglary conviction qualified as a crime-of-violence aggravated felony under 8 U.S.C. § 1101(a)(43)(F). The BIA did not address the IJ's other finding regarding Cheneau's conviction for receipt of stolen property. Cheneau petitioned our court for review. We granted the government's unopposed motion to remand, so that the BIA could "further address" whether Cheneau's burglary conviction was a crime of violence and determine the "applicable statutory provision" for Cheneau's claim of derivative citizenship.

On remand, the BIA again determined that Cheneau's burglary conviction was a crime of violence, finding that the Supreme Court's decision in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), did not change the analysis. The BIA also determined that the applicable derivative citizenship statutory provision was 8 U.S.C. § 1431(a) and not former 8 U.S.C. § 1432(a)¹ —which it had applied the first time. The BIA then concluded that Cheneau was not a derivative citizen under § 1431(a) and was therefore subject to removal.

II.

We have jurisdiction to determine Cheneau's claim that he is a derivative citizen of the United States and therefore not subject to removal. Minasyan v. Gonzales , 401 F.3d 1069, 1074 (9th Cir. 2005) (citing 8 U.S.C. § 1252(b)(5)(A) ). We review the legal questions de novo and "are not required to give Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) deference to the agency's interpretation of the citizenship laws."² Id.

The INA confers automatic "derivative citizenship on the children of a naturalized citizen, provided certain statutorily prescribed conditions are met." Id. at 1075. Cheneau claims that he derived citizenship from his mother's naturalization. This claim is foreclosed by our decision in Romero-Ruiz v. Mukasey , 538 F.3d 1057 (9th Cir. 2008).

We must first decide which version of the statute governs. The applicable version is the one that was "in effect at [the] time the critical events giving rise to eligibility occurred." Minasyan , 401 F.3d at 1075. Former § 1432(a) was in effect until February 27, 2001, when § 1431(a) took effect. See Hughes v. Ashcroft , 255 F.3d 752, 758–59 (9th Cir. 2001). Simplified, § 1432(a) governs if Cheneau became a citizen before February 27, 2001. If Cheneau did not become a citizen before that date, then the successor (and current) statute, § 1431(a), controls.

Cheneau urges the application of 8 U.S.C. § 1432(a), which provided in relevant part:

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

...

(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 ..., or thereafter begins to reside permanently in the United States while under the age of eighteen years.

We conclude that § 1432(a) does not apply because it was not in effect at the time of a critical event giving rise to eligibility. Under clause (5), a child can obtain derivative citizenship in two ways: first, if at the time his parent is naturalized, he "is residing in the United States pursuant to a lawful admission for permanent residence," or second, if after his parent is naturalized and while under eighteen, he "begins to reside permanently in the United States." Id. Cheneau did not obtain lawful permanent resident status³ until August 2003, at age eighteen, about four years after his mother was naturalized and when § 1432(a) was no longer in effect. Thus, the first provision of § 1432(a)(5) does not help Cheneau.

Cheneau does not dispute this but argues instead that he became a derivative citizen under the second provision of § 1432(a)(5). Cheneau contends that even though he did not obtain lawful permanent resident status before his mother was naturalized, he nonetheless began to "reside permanently in the United States" after she was naturalized, and "while [he was] under the age of eighteen." According to Cheneau, he began to "reside permanently in the United States" in January 2000, when he applied for adjustment of status to lawful permanent resident. Under Cheneau's interpretation of the second provision, the critical event occurred before § 1432(a) was repealed. In support, Cheneau relies on the Second Circuit's decision in Nwozuzu v. Holder , 726 F.3d 323 (2d Cir. 2013), which held: " ‘[B]egins to reside permanently’ does not require ‘lawful permanent resident’ status. It does require, however, ‘some objective official manifestation of the child's permanent residence.’ " Id. at 333 (alterations in original) (citation omitted). In Cheneau's view, his application for adjustment to lawful permanent resident status when he was fifteen—in combination with his actual residence in the United States—is sufficient as an "objective official manifestation of [his] permanent residence." Id. Cheneau thus contends the undisputed facts demonstrate that he became a citizen when § 1432(a) was still in effect.

We are foreclosed from following Nwozuzu .⁴ In Romero-Ruiz , we considered a petitioner's derivative citizenship claim under § 1432(a)(5). 538 F.3d at 1062. Like Cheneau, Romero-Ruiz argued that although he had not been lawfully admitted for permanent residence at the time of his mother's naturalization, he qualified for derivative citizenship under the second provision's "begins to reside permanently" requirement. Id. We rejected Romero-Ruiz's argument, concluding: "A plain reading of the...