17-1813 Falodun v. Barr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of May, two thousand twenty.

Present: PIERRE N. LEVAL, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

BRIGHT IDADA FALODUN ,

Petitioner,

v. 17-1813

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

For Petitioner: MARK I. SALVACION , PRIME Ecumenical Commitment to Refugees, Lansdowne, PA

For Respondent: RUSSELL J.E. VERBY , Senior Litigation Counsel (Joseph H. Hunt, Assistant Attorney General, and Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of

1 Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED.

Petitioner Bright Idada Falodun seeks review of a June 2, 2017 BIA decision, which

dismissed his appeal of a decision of an Immigration Judge (“IJ”) that denied Falodun’s motion to

terminate removal proceedings as a U.S. citizen and ordered removal to Nigeria. Matter of

Falodun,

(BIA 2017). We assume the parties’ familiarity with the underlying

facts and procedural history.

Where, as here, “the petitioner claims to be a national of the United States,” we review “the

pleadings and affidavits” to determine if a “genuine issue of material fact about the petitioner’s

nationality is presented.”

(b)(5)(A). If no genuine issue of material fact is

presented, we “decide the nationality claim.”

If, however, such an issue exists, we “transfer

the proceeding to the district court of the United States for the judicial district in which the

petitioner resides for a new hearing on the nationality claim and a decision on that claim.”

§ 1252(b)(5)(B). To evaluate whether a genuine issue of material fact is presented, we apply the

same principles employed when reviewing a grant of summary judgment. See Agosto v. INS,

(1978).

Citizenship is derived automatically when all the conditions for derivative citizenship are

met. See Langhorne v. Ashcroft,

, 177–78 & n.2 (2d Cir. 2004) (discussing former

derivative citizenship provision at

, repealed by Children Citizenship Act of 2000,

Stat. 1631 (2000)). Individuals who obtain citizenship derivatively

may apply for a certificate of citizenship, which serves as evidence of status but does not itself

confer citizenship. See Watson v. United States,

, 128–29 (2d Cir. 2017) (“[A]

certificate of citizenship” is “a document that evidences the bearer’s U.S. citizenship.”). Issuance

2 and cancellation of a certificate of citizenship is governed by

(a) and 1453,

respectively.

In 1998, Falodun received a certificate of citizenship based on the INS’s finding that

Falodun derived U.S. citizenship under

(a) (1994). Specifically, the INS

believed that Falodun had been adopted by Williams Falodun, who immigrated to the United States

and naturalized while Falodun was a minor. Falodun followed Williams, becoming a lawful

permanent resident in 1996.

That certificate was subsequently canceled when the agency concluded that Falodun had

misrepresented the nature of his relationship with Williams. Specifically, the INS concluded that

Williams was actually Falodun’s brother; that his true father, David, was still alive in Nigeria; and

that the purported adoption of Falodun by Williams was a sham. The INS based this conclusion

in large part on evidence gathered during Falodun’s prosecution for fraud and other crimes in the

District of Minnesota. Following Falodun’s conviction, the government initiated removal

proceedings. Falodun asserted that he is a U.S. citizen, but the IJ and BIA rejected this claim as

insufficiently supported. On appeal, Falodun asserts that he is entitled to a hearing before a

district court to adjudicate his citizenship. See

(b)(5)(B). Under the specific

circumstances of this case, we disagree.

The undisputed facts establish that Falodun never obtained derivative citizenship. Under

the version of the statute in effect when Falodun purportedly became a citizen, see Ashton v.

Gonzales,

(2d Cir. 2005), derivative citizenship applied “to an adopted child only

if the child [was] residing in the United States at the time of naturalization of [his] adoptive parent

or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for

permanent residence.”

(b) (1994) (emphasis added). Falodun’s purported

3 adoptive father, Williams, was naturalized on April 19, 1995, and Falodun did not arrive in the

United States or obtain lawful permanent resident status until the following year. Thus, there is

no genuine issue of material fact as to Falodun’s nationality. Falodun was not “residing in the

United States at the time of naturalization of [his] adoptive parent,” so he never satisfied the

statutory requirements for citizenship. Accordingly, he is not, and never was, a U.S. citizen.

For the foregoing reasons, we DENY the petition for review.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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