15‐3134‐ag Gil v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2016

(Argued: October 31, 2016 Decided: March 17, 2017)

Docket No. 15‐3134‐ag

JULY RAFAEL BUENO GIL,

Petitioner,

v.

JEFFERSON B. SESSIONS III, United States Attorney General,

Respondent.*

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

Before: WALKER, HALL, and CHIN, Circuit Judges.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jefferson B. Sessions III is substituted for former Attorney General Loretta E. Lynch as respondent. 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.

CHIN, Circuit Judge:

Petitioner July Rafael Bueno Gil (ʺGilʺ) seeks review of a September

10, 2015 decision of the Board of Immigration Appeals (ʺBIAʺ) affirming the

decision of an Immigration Judge (ʺIJʺ) 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

‐ 2 ‐ 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

ʺchildʺ eligible for derivative citizenship because he was not ʺlegitimatedʺ within

the meaning of the Immigration and Nationality Act (the ʺINAʺ). 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. Gilʹs 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.

Gilʹs 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 fatherʹs

naturalization.

‐ 3 ‐ 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

(ʺUSCISʺ) determined that Gilʹs Certificate of Citizenship was unlawfully or

fraudulently obtained because he was not a qualifying ʺchildʺ under the INAʹs

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,

(a)(2)(A)(iii) and (B)(i), based on his convictions.

On November 18, 2013, the IJ rejected Gilʹs claim to derivative

citizenship through his fatherʹs naturalization on the basis that Gil did not

ʺlegitimateʺ 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 IJʹs finding that

‐ 4 ‐ Gil did not derive citizenship through his father, and affirmed the denial of the

motion to terminate removal proceedings.

This petition followed.

DISCUSSION

We review the question of derivative citizenship de novo where, as

here, ʺthe petitioner claims to be a national of the United Statesʺ and the record

presents ʺno genuine issue of material fact about the petitionerʹs nationality.ʺ

Morales‐Santana v. Lynch,

(2d Cir. 2015) (quoting

(b)(5)(A)).1

A. Derivative Citizenship

To determine whether an alien obtained derivative citizenship

through a parentʹs naturalization, we look to ʺthe law in effect when [petitioner]

fulfilled the last requirement for derivative citizenship.ʺ Poole v. Mukasey,

(2d Cir. 2008) (alteration in original) (quoting Ashton v. Gonzales,

(2d Cir. 2005)).

1 While we generally lack jurisdiction to review final orders of removal against aliens who are removable due to aggravated felony convictions,

(a)(2)(C), we retain jurisdiction to review constitutional claims and questions of law,

§ 1252(a)(2)(D). Thus, we have jurisdiction to consider Gilʹs claim to derivative citizenship in this case, where there are no disputed facts. See id. § 1252(b)(5)(A) (requiring courts to decide a nationality claim if the petitioner claims to be a national and there are no disputed material facts).

‐ 5 ‐ In 1980, when Gilʹs father became a naturalized citizen, former

section 321(a) of the INA provided that:

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), repealed by Child Citizenship Act of 2000, Pub. L. 106‐395,

§ 103,

, 1632 (2000); see also Smart v. Ashcroft,

(2d

Cir. 2005). The parties agree that former § 321(a) applies here. See Smart,

(ʺThe CCA changes do not benefit [petitioner] because the CCA is not

‐ 6 ‐ retroactive, and [petitioner] was no longer under eighteen years old upon its

enactment.ʺ (internal citation omitted)).

Section 101(c)(1) of the INA defines the term ʺchildʺ as

an unmarried person under twenty‐one years of age and includ[ing] a child legitimated under the law of the childʹs residence or domicile, or under the law of the fatherʹs residence or domicile, . . . if such legitimation . . . takes place before the child reaches the age of 16 years . . . , and the child is in the legal custody of the legitimating . . . parent . . . at the time of such legitimation . . . .

(c)(1). The statute ʺmake[s] clear, for derivative citizenship

purposes, [that] a person born out of wedlock is considered a ʹchildʹ of his United

States citizen parent or parents only if he was ʹlegitimatedʹ under the law of his

own residence or domicile (or that of his father) before turning 16.ʺ Matter of

Cross,

(BIA 2015) (emphasis added).

Although the INA does not define the term ʺlegitimated,ʺ the BIA

has interpreted it ʺto refer to a child born out of wedlock who has been accorded

legal rights that are identical to those enjoyed by a child born in wedlock.ʺ De

Los Santos v. Immigration & Naturalization Serv.,

(2d Cir. 1982)

(citation omitted); see also In re Cabrera,

(BIA 1996) (ʺIn

prior precedent decisions, we have defined legitimation as the act of putting a

‐ 7 ‐ child born out of wedlock in the same legal position as a child born in wedlock.ʺ)

(citation omitted). The BIA has also held that

a person born abroad to unmarried parents can qualify as a legitimated ʹchildʹ under section 101(c)(1) of the Act if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in such a country or State.

Cross, 26 I. & N. Dec. at 485‐86.

Gilʹs claim to derivative citizenship turns on whether he qualified as

a legitimated ʺchildʺ within the meaning of § 101(c)(1). The issue on appeal is

whether, before he reached the statutory age of sixteen years old, Gil was

ʺlegitimatedʺ under the laws of the Dominican Republic or New York, i.e.,

whether in that time frame Dominican or New York law had eliminated all legal

distinctions between children born in and out of wedlock. The burden falls on

Gil to show he met this requirement. See Grant v. U.S. Depʹt of Homeland Sec.,

(2d Cir. 2008) (ʺ[A]n alien born out of wedlock . . . must show, at a

minimum, that he has been legitimated in order to achieve citizenship based on

his fatherʹs citizenship.ʺ); see also Berenyi v. Dist. Dir., Immigration & Naturalization

Serv.,

(1967) (ʺ[I]t has been universally accepted that the burden

is on the alien applicant to show his eligibility for citizenship in every respect.ʺ).

‐ 8 ‐ B. Application

1. Dominican Law

Gil concedes he was not a legitimated child under Dominican law at

the time his father became a naturalized citizen in 1980. He argues instead that,

due to the retroactive application of a subsequently enacted law, the Dominican

Republic now treats him as gaining legitimating status at the time of his birth,

well before his father received naturalized citizenship. We are not persuaded.

In 1980, the Dominican law in effect accorded different succession

rights to children born out of wedlock based on whether their parents later

married each other. See De Los Santos,

(referring to Law 985 of

Aug. 1, 1945, art. 1). Under that law, a child born out of wedlock to unmarried

parents was entitled to only half the inheritance share attributable to a child born

in wedlock or a child born out of wedlock to subsequently married parents. See

(describing Law 985, art. 10).

In 1994, the Dominican Republic enacted the Code for the Protection

of Children (the ʺCodeʺ), which ʺchanged the Dominican law on parentage and

filiation to eliminate all legal distinctions between children born in wedlock and

those born out of wedlock.ʺ In re Martinez‐Gonzalez,

, 1038

‐ 9 ‐ (BIA 1997) (describing the ʺenactment of Ley No. 14‐19 que crea el Codigo para la

Proteccion de Ninos, Ninas y Adolescentes Gaceta Official, Apr. 25, 1994

(enacted Apr. 22, 1994) (hereinafter Code for the Protection of Children)ʺ

(alteration omitted)). The new law became effective on January 1, 1995 and ʺwas

intended to apply to all present and future legal situations and to legal situations

that were established and created before the promulgation of the law and

continue in existence after such promulgation.ʺ

(internal quotation marks,

citation, and ellipses omitted).

Gil asserts that the Code applied retroactively to legitimate all

children born out of wedlock, even those who reached adulthood prior to the

enactment of the new law. In support, he presents (1) two legal opinions by the

Central Electoral Board of the Dominican Republic, which he describes as a

judicial body in the Dominican Republic, applying the new law specifically to

him and (2) a legal opinion by an expert in Dominican law stating that, due to the

new law, the Dominican Republic has always recognized Gil as a legitimated

child. Gil therefore concludes that he was a ʺchildʺ within the meaning of

§ 101(c)(1) because he was ʺlegitimatedʺ under Dominican law at the time of his

fatherʹs naturalization, by virtue of the Codeʹs retroactive effect.

‐ 10 ‐ Section 101(c)(1), however, explicitly requires that the legitimation

occur ʺbefore the child reaches the age of 16 years.ʺ

(c)(1). The

legitimizing act at issue here was the enactment of the Code, a law that became

effective well after Gilʹs sixteenth birthday. See Martinez‐Gonzalez, 21 I. & N. Dec.

at 1038 (holding, with respect to the analogous provision at § 101(b)(1)(C), that

ʺ[t]he legitimizing act in the case of Dominican law could be either the change in

the law itself or the acknowledgement of paternityʺ). Because Gil did not gain

legitimated status under the new law before he turned sixteen years old, he is not

a legitimated child within the plain meaning of § 101(c)(1). See id. at 1038‐39

(concluding that children who reached the statutory age limit ʺprior to January 1,

1995, the effective date of the Code for the Protection of Children, and who were

not legitimated under the former Dominican law,ʺ could not satisfy the

requirements in § 101(b)(1)(C) because the legitimating act ‐‐ the change in

Dominican law ‐‐ came too late); see also Anderson v. Holder,

(9th Cir. 2012) (ʺ[W]hen legal distinctions are eliminated between children born

to married parents and those born out of wedlock, the children born out of

wedlock are deemed to be legitimated as of the date the laws are changed.ʺ

(internal quotation marks and citation omitted)).

‐ 11 ‐ Gilʹs argument, rejected by the IJ and BIA, that the new Dominican

law treats his legitimation as occurring at the time of birth is inapposite because

§ 101(c)(1) does not incorporate Dominican law in setting forth the timing

requirement. See

(c)(1) (defining ʺchildʺ as including a child

legitimated under the law of the childʹs or fatherʹs residence or domicile ʺif such

legitimation . . . takes place before the child reaches the age of 16 yearsʺ). Rather,

Gilʹs legitimation took place on January 1, 1995, when the Code took effect, and

when he was twenty‐six years old.

Accordingly, Gil was not a ʺchild,ʺ as defined in § 101(c)(1), based on

the Code because the elimination of legal distinctions between children born in

and out of wedlock under Dominican law did not occur before his sixteenth

birthday.

2. New York Law

Nor did Gil qualify as a ʺchildʺ under § 101(c)(1) based on New York

law, which distinguishes between children born in and out of wedlock for

inheritance purposes. See N.Y. Est. Powers & Trusts Law § 4‐1.2(b) (McKinney

2010) (describing paternity conditions under which non‐marital children are

treated as marital children with respect to inheritance rights); see also Lalli v. Lalli,

‐ 12 ‐

, 272‐73 (1978) (holding that § 4‐1.2 bars children born out of

wedlock, but not those born in wedlock, from exercising inheritance rights if they

lack proper evidence of paternity). Gil does not identify any legal authority

suggesting that New York has eliminated all legal distinctions between children

based on the marital status of their parents. See Cross, 26 I. & N. Dec. at 485‐86.

Accordingly, Gil was not a legitimated ʺchildʺ as the term is defined

in § 101(c)(1) and used in former § 321(a), and he therefore was not eligible under

the INA for derivative citizenship through his fatherʹs naturalization.

CONCLUSION

For the foregoing reasons, the petition for review is DENIED.

‐ 13 ‐