Gil v. Sessions, 031717 FED2, 15-3134-ag

Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
Attorney: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., f...
Judge Panel:Before: Walker, Hall, and Chin, Circuit Judges.
Opinion Judge:Chin, Circuit Judge.
Party Name:July Rafael Bueno Gil, Petitioner, v. Jefferson B. Sessions III, United States Attorney General, Respondent.[*]
Case Date:March 17, 2017
Docket Nº:15-3134-ag
 
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July Rafael Bueno Gil, Petitioner,

v.

Jefferson B. Sessions III, United States Attorney General, Respondent.[*]

No. 15-3134-ag

United States Court of Appeals, Second Circuit

March 17, 2017

          Argued: October 31, 2016

         On Petition for Review from the Board of Immigration Appeals

         Petition for review of a decision of the Board of Immigration Appeals affirming the decision of an Immigration Judge finding petitioner ineligible for derivative citizenship and denying his motion to terminate removal proceedings.

         Petition Denied.

          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...

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