Gonzalez v. Holder
| Decision Date | 21 October 2014 |
| Docket Number | No. 14–60378.,14–60378. |
| Parties | Evaristo Gonzalez GONZALEZ, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elisabeth S. Brodyaga, Refugio Del Rio Grande, San Benito, TX, for Petitioner.
Blair O'Connor, Assistant Director, Rachel Louise Browning, Trial Attorney, Tangerlia Cox, Scott Michael Marconda, Esq., Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before STEWART, Chief Judge, and WIENER and COSTA, Circuit Judges.
Evaristo Gonzalez Gonzalez petitions for review of a decision by the Board of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ) order that he be removed from the United States. He contends that his removal is improper because he derived citizenship from his father pursuant to former 8 U.S.C. § 1432(a)(5) of the Immigration and Nationality Act (INA).1 For the reasons stated herein, we DENY his petition.
Gonzalez was born in Veracruz, Mexico but came to the United States in 1992 at the age of seven with his father after his parents divorced. He entered the country without inspection. In 1999, Gonzalez's father became a naturalized U.S. citizen and filed an Immediate Relative visa petition (Form I–130 petition) on behalf of Gonzalez. However, Gonzalez did not become a lawful permanent resident until July 24, 2008 at the age of twenty-three.
In 2011, Gonzalez pleaded guilty to criminal sexual penetration in the third degree, a felony. Thereafter, the Department of Homeland Security initiated removal proceedings against Gonzalez based on his conviction. Gonzalez argued that removal was not appropriate because he derived U.S. citizenship from his father. Gonzalez sought a continuance to permit his counsel time to receive documentation in support of his citizenship claim. However, the IJ denied the continuance and held that Gonzalez did not derive citizenship from his father because Gonzalez did not become a lawful permanent resident before his eighteenth birthday. The IJ therefore ordered Gonzalez's removal. Gonzalez filed a motion to reconsider, which the IJ denied. Gonzalez timely appealed to the BIA, contesting the continuance denial and the IJ's holding that he did not derive U.S. citizenship.
The BIA affirmed the IJ. Relying on its previous ruling in Matter of Nwozuzu, 24 I. & N. Dec. 609 (BIA 2008), the BIA reasoned that Gonzalez did not derive citizenship from his father under § 1432 due to his failure to become a lawful permanent resident before the age of eighteen. Gonzalez also failed to qualify for derivative citizenship under § 1431 because he did not satisfy the lawful permanent resident status requirement. Moreover, the BIA held that the IJ properly denied the continuance motion because Gonzalez did not demonstrate good cause supporting an additional grant of continuance. Gonzalez timely petitioned for review of the BIA's order.
On appeal, Gonzalez filed a motion to stay his removal and to transfer his case to the district court in El Paso, Texas, which a panel of this court denied. However, the panel ordered that his appeal be expedited. After this case was scheduled for oral argument, Gonzalez again filed a motion to stay his removal and to transfer his case to the district court in El Paso. This motion was carried with the case.
Our jurisdiction to review removal orders under 8 U.S.C. § 1252 is limited. Marquez–Marquez v. Gonzales, 455 F.3d 548, 553–54 (5th Cir.2006). However, we have jurisdiction to review “constitutional claims or questions of law raised upon a petition for review.” Id. at 554 (internal quotation marks omitted). “In reviewing an appeal from an IJ order, the BIA and this court must resolve all doubts in favor of the United States and against those seeking citizenship.” Ayton v. Holder, 686 F.3d 331, 335 (5th Cir.2012) (per curiam) (citation and internal quotation marks omitted). Gonzalez has the burden of demonstrating that he is entitled to naturalization. Bustamante–Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir.2006). Moreover, “[t]he BIA's determinations as to purely legal questions are reviewed de novo.” Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.2004) (emphasis omitted).
Gonzalez's arguments on appeal pertain to the correct interpretation of § 1432. We have yet to address whether § 1432(a)(5) requires an individual to obtain lawful permanent resident status before the age of eighteen to claim derivative citizenship. Three of our sister circuits currently disagree over the proper construction of § 1432(a)(5). We will first examine the statutory language and then review the varying approaches taken by our sister circuits.
Section 1432(a) reads, in pertinent part:
8 U.S.C. § 1432(a) (repealed 2000) (current version at 8 U.S.C. § 1431 (2012) ).
The Ninth Circuit's first interpretation of § 1432 is in United States v. Diaz–Guerrero, 132 Fed.Appx. 739 (9th Cir.2005) (unpublished). The court interpreted the first clause in § 1432(a)(5) as requiring that minors be “residing in the United States pursuant to a lawful admission for permanent residence;” however, because the second clause did not contain the phrase “lawful admission,” the court reasoned that the second clause did not impose a legal status requirement on minors. Id. at 740–41 (). This conclusion was supported, in the court's view, by the INA's definition of “permanent” and “residence.” Id. at 741. Moreover, the court noted that the current statute governing derivative citizenship explicitly makes lawful admission mandatory for derivative citizenship. Id. at 740 n. 2.
Later, in Romero–Ruiz v. Mukasey, the Ninth Circuit interpreted § 1432 as requiring that a minor have lawful permanent resident status before obtaining derivative citizenship. 538 F.3d 1057, 1062 (9th Cir.2008). The court did not mention its earlier non-precedential opinion—Diaz–Guerrero. Id. at 1062–63. The court reasoned that “[t]he phrase ‘or thereafter begins to reside permanently’ alters only the timing of the residence requirement, not the requirement of legal residence.” Id. at 1062. To interpret the second clause as not requiring lawful permanent resident status would, in the Ninth Circuit's view, render the first clause superfluous. Id.
In Matter of Nwozuzu, the BIA interpreted § 1432(a)(5) as requiring that a minor be a lawful permanent resident before the age of eighteen. 24 I. & N. Dec. 609, 614 (BIA 2008). The BIA first examined the definition of “permanent” in the INA and in Webster's Dictionary, which led it to conclude “that something is ‘permanent’ if it is lasting or is at least intended to last indefinitely.” Id. at 612. Moreover, “residing permanently,” the BIA reasoned, required “the maintenance of a lasting principal dwelling place.” Id. at 613. If a dwelling place is unauthorized, the BIA concluded, it cannot be permanent. Id. (). The BIA acknowledged that the INA's definition of “permanent” stated “that a permanent relationship ‘may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law.’ ” Id. at 613 n. 4 (quoting 8 U.S.C. § 1101(a)(31) ). However, the BIA reasoned that the “dissolution” referred to in the definition “is distinct from the termination of an alien's unlawful presence” whereby the individual may be removed at any time. Id. Conversely, a lawful permanent resident must “violate [ ] the law or voluntarily elect[ ] to abandon the status.” Id.
Although Congress used different language in the two clauses of § 1432(a)(5), the BIA found it persuasive that “begins to reside permanently” was analogous to the definition of “lawfully admitted for permanent residence.” Id. at 613 (internal quotation marks omitted).3 The BIA considered the similarity to suggest that Congress intended the clauses to have the same definition and concluded that the second clause was simply “a shorthand reference” to the first clause. Id. at 613–14 & n. 5. Moreover, the second clause was not rendered superfluous under this interpretation, the BIA reasoned, because it “clarifies that an alien does not have to be a lawful permanent resident at the time his or her parent naturalizes.” Id. at 614. To the contrary, interpreting the second clause to not have a lawful permanent residency requirement would negate the first clause because individuals would rarely use that provision to acquire derivative citizenship. Id. The BIA also stated that its interpretation comported with the treatment of derivative citizenship historically. Id. at 614–15 (...
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Gonzalez v. Holder
...771 F.3d 238Evaristo Gonzalez GONZALEZ, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.No. 14–60378.United States Court of Appeals, Fifth Circuit.Oct. 21, Petition denied. Elisabeth S. Brodyaga, Refugio Del Rio Grande, San Benito, TX, for Petitioner.Blair O'Connor, Assi......