United States Court of Appeals For the First Circuit

No. 22-1496

SUNIL KUMAR SHARMA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE DEPARTMENT OF HOMELAND SECURITY

Before

Kayatta, Lynch, and Howard, Circuit Judges.

Pablo A. Lozano, Law Student Advocate, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Andrew Santana, Serena Hughley, Shing-Shing Cao, and Farris Peale, Law Student Advocates, were on brief, for petitioner. David Kim, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Matthew A. Connelly, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, were on brief, for respondent.

April 28, 2023 KAYATTA, Circuit Judge. Petitioner Sunil Sharma

challenges a Final Administrative Removal Order on grounds that he

derived U.S. citizenship as a child. Because we hold that he did

not, we deny his petition.

I.

Sharma was born in India in 1979 to Indian-citizen

parents. While he was a young child and still living in India,

his mother moved to the United States and obtained lawful permanent

resident status. In April 1990, after Sharma's father had died,

Sharma came to the United States to live with his mother in

Massachusetts. According to Sharma, he "entered as a child without

lawful immigration status."

On August 24, 1995, Sharma's mother became a naturalized

U.S. citizen. Then, on January 3, 1996, when Sharma was sixteen

years old, Sharma's mother filed an application for lawful

permanent resident status on his behalf. Sharma says that he went

"to an interview with an immigration officer" at which "the officer

said that [his] application could not be approved at that time

because [he] had a juvenile [criminal] record and that [he] would

need to come back." Sharma does not dispute that he had a juvenile

record as of the date of that interview.

Subsequently, on April 16, 1996 -- while Sharma's

application was still pending -- he was involved in a shooting at

a restaurant that resulted in the death of a bystander. He was

- 2 - arrested later that same year and, on April 28, 1999, was convicted

of second-degree murder and sentenced to life in prison by a

Massachusetts state court.

Sharma's permanent residence application was denied on

June 17, 1996 for "lack of prosecution," after he failed to appear

for an adjustment interview scheduled for May 22, 1996 without

"notify[ing] [the government] of [his] inability to appear for

[the] interview." Sharma makes no allegation that he had been

arrested by the date of the interview,1 but does allege that he

"could not attend" -- even though he had "planned to go" -- because

he "got into trouble with the law."

After serving over 20 years in prison, Sharma was granted

parole in 2021. On April 7, 2022, the Department of Homeland

Security (DHS) issued the Notice of Intent to Issue a Final

Administrative Removal Order relevant to this petition. The notice

alleged that Sharma was neither a citizen of the United States nor

lawfully admitted for permanent residence, and charged him with

being removable under

(a)(2)(A)(iii) for having

been convicted of an aggravated felony as defined in 8 U.S.C

§ 1101(a)(43)(A). In response, Sharma asserted that he was not

removable because he had derived U.S. citizenship through his

1 The date of his arrest is not clear from the record, but the earliest potential arrest date referenced therein is sometime in June 1996.

- 3 - mother in 1996 -- at the time his permanent residence application

was submitted -- pursuant to former section 321(a) of the

Immigration and Nationality Act (INA).

DHS rejected Sharma's proposed reading of former

section 321(a) and issued a Final Administrative Removal Order on

June 1, 2022. Sharma timely filed a petition for review with this

court.

II.

We have jurisdiction to review Sharma's citizenship

claim pursuant to

(b)(5). See Thompson v. Lynch,

, 942 n.3 (1st Cir. 2015). Under that statute, if we

determine that "there is a 'genuine issue of material fact' as to

the citizenship claim," then "we must transfer the case to district

court for fact-finding proceedings."

(quoting Batista v.

Ashcroft,

(1st Cir. 2001)). If the case turns

"entirely on issues of law, including the meaning of the automatic

citizenship statute in question, . . . our review is de novo and

there is no occasion to transfer the case to a district court."

Fierro v. Reno,

(1st Cir. 2000).

III.

Sharma's only ground for contesting removability is that

he became a citizen pursuant to the derivative citizenship law

that was in effect before he turned eighteen. That law, former

section 321(a) of the INA, provided:

- 4 - 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.

(a) (1994), repealed by Child Citizenship Act of

2000,

(a),

, 1632.

The government does not contest that Sharma satisfied

the second and fourth conditions of the statute -- his mother, as

his sole surviving parent, naturalized before Sharma turned

eighteen. This appeal thus turns on the fifth condition, half of

which is undisputed because the parties agree that Sharma was not

"residing in the United States pursuant to a lawful admission for

- 5 - permanent residence at the time of [his mother's] naturalization."

(a)(5) (1994). So the pivotal question before us

is whether Sharma, after his mother's naturalization, "beg[an] to

reside permanently in the United States while under the age of

eighteen years."

In issuing the Final Administrative Removal Order, DHS

relied on the Board of Immigration Appeals' decision in Matter of

Nwozuzu,

(B.I.A. 2008), which held that the

phrase "reside permanently" as used in former section 321(a)(5)

requires the noncitizen child to "acquire lawful permanent

resident status."

. Since Sharma never became a lawful

permanent resident, DHS concluded he had not derived citizenship.

Sharma, in contrast, asserts that the statute requires only an

"objective manifestation of . . . intent to reside permanently in

the United States," in line with the interpretation of former

section 321(a)(5) adopted by the Second Circuit in Nwozuzu v.

Holder,

(2d Cir. 2013), and the Ninth Circuit in

Cheneau v. Garland,

(9th Cir. 2021) (en banc).

Sharma argues that his permanent residence application was such a

"manifestation," and thus he derived citizenship when he was

sixteen.

In Thomas v. Lynch,

(1st Cir. 2016), we faced

the same question regarding the meaning of "reside permanently" as

used in former section 321(a)(5).

. There, we did not

- 6 - need to pick between the dueling meanings presented by the parties

because the petitioner would not have derived citizenship even

under the "objective manifestation" test he urged on the court.

at 14–15.

The same is true here.2 Assuming, without deciding, that

former section 321(a)(5) requires only an "objective manifestation

of . . . intent to reside permanently in the United States," and

further assuming that all of Sharma's factual allegations in the

record are true, Sharma's citizenship claim still fails.3 Sharma

argues that this "objective manifestation" test "depends upon

clear and objectively evaluable metrics of intent," such as an

application for permanent resident status. But subsequent events

can shed light on how reliably the relevant "metric" demonstrates

an individual's intent. Cf. Aponte-Dávila v. Mun. of Caguas,

(1st Cir. 2016) (noting that, for purposes of

determining a party's domicile at the time a diversity action was

filed, "subsequent events may bear on the sincerity of a professed

2As in Thomas, because Sharma's citizenship claim fails under his own preferred reading of the statute, "we need not decide whether the BIA's construction of former section 321(a) is entitled to Chevron deference." Thomas,

n.4. 3Because we assume Sharma's factual allegations are true, we have no reason to transfer this case to the district court for fact-finding. Thompson,

n.3. Nor has any party suggested that if we were to adopt the "objective manifestation" test, we would need to remand this matter to DHS to determine whether Sharma has met that test.

- 7 - intention to remain" (quoting García Pérez v. Santaella,

(1st Cir. 2004))).

In Sharma's case, the subsequent events undermine his

reliance on his permanent residence application as his relevant

"objective manifestation." Sharma, without any prior notice to

the government and having been told he must appear for another

adjustment interview, failed to show up to his May 1996 interview,

and then failed to take any steps to follow up on his application,

ultimately resulting in its denial. The only explanation he

provides for skipping the interview is that he "got into trouble

with the law and could not attend," but he makes no allegation

that he was in custody at the time. Further, the "trouble with

the law" appears to be a reference to the April 1996 shooting,

which occurred after Sharma had already been informed by an

immigration official that his juvenile criminal record posed an

issue for his permanent residence application. Sharma should

therefore have known at the time of the shooting that committing

a serious crime would further imperil his immigration status. The

shooting, the subsequent missed interview, and the absence of any

attempt to revive his application indicate that Sharma lacked

commitment to his application process. Applying Sharma's proposed

reading of former section 321(a)(5) to the facts, we therefore

conclude that his permanent residence application does not show

- 8 - the intent to reside permanently that his own proffered legal test

requires.

This conclusion does not conflict with the central

holdings of either the Second Circuit's decision in Nwozuzu or the

Ninth Circuit's decision in Cheneau, each of which adopted the

"objective manifestation" test. In each of those cases, the court

held that the petitioner's application for lawful permanent status

constituted the necessary "objective manifestation" of intent to

reside permanently. Nwozuzu,

; Cheneau,

; Cheneau v. Garland,

(Mem.) (9th Cir. 2021)

(concluding, on remand from the en banc court, that the petitioner

had derived citizenship). But in neither case did the petitioner

completely abandon his adjustment-of-status process as is the case

here; to the contrary, the petitioners in both cases ultimately

became permanent residents after they turned eighteen. Nwozuzu,

; Cheneau,

. Further, in Cheneau,

the court specifically noted that its holding would not extend to

an individual who "unlawfully entered the United States" and

subsequently applied for permanent residence, where the individual

"abandoned that application" by "depart[ing] the country knowing

that he needed to remain in the United States while his application

was pending."

n.6.

- 9 - IV.

For the foregoing reasons, the petition for review is

denied.

- 10 -