22-6290-ag Mullins Cruz v. Garland BIA Auh, IJ A041 753 162

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 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 14th day of March, two thousand twenty-four.

Present: JON O. NEWMAN, EUNICE C. LEE, ALISON J. NATHAN, Circuit Judges. _____________________________________

WILL KENT MULLINS CRUZ,

Petitioner,

v. 22-6290-ag

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

For Petitioner: JOHN H. PENG (Rohmah A. Javed, on the brief), Prisoners’ Legal Services of New York, Karen L. Murtagh, Executive Director, Albany, NY. For Respondent: NEHAL H. KAMANI, Trial Attorney, Office of Immigration Litigation (David J. Schor, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

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

petition for review is DENIED.

Petitioner Will Kent Mullins Cruz petitions for review of a BIA decision affirming a

decision of an Immigration Judge (“IJ”) ordering his removal to Honduras. He argues that he

cannot be removed because he derived United States citizenship from his father pursuant to the

Child Citizenship Act (“CCA”),

(a), and that the agency and this Court are

precluded from finding otherwise because an IJ terminated his prior removal proceeding on the

ground that he was a citizen under that statute. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

We have reviewed both the IJ’s and the BIA’s decisions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). Although Mullins Cruz

was ordered removed on criminal grounds that limit our jurisdiction to constitutional claims and

questions of law, we have jurisdiction to review his derivative citizenship claim because

citizenship is a question of law. 1 See

(a)(2)(C), (D); Gil v. Sessions,

, 186 n.1 (2d Cir. 2017). We review such claims de novo. Gil,

. The

1 The parties dispute whether we must begin with an independent determination of citizenship to establish whether the jurisdictional bar—which applies only to petitions brought by “aliens”— constrains our review. See

(a)(2)(C). That dispute is ultimately immaterial because, for the reasons discussed below, we conclude that Mullins Cruz is not a citizen. 2 agency’s application of preclusion principles is also a question of law that we review de novo.

See Channer v. Dep’t of Homeland Sec.,

(2d Cir. 2008).

I. Claim Preclusion 2

Mullins Cruz raises an initial question of claim preclusion. He argues that his prior

removal proceeding, which was terminated in 2004 after an IJ deemed him a citizen, raised the

same “claim” of noncitizenship that is being raised in the current removal proceeding because

alienage is a threshold issue in any removal proceeding and the facts relevant to citizenship were

the same in both proceedings. We are not convinced that the “claim” should be defined by this

threshold issue, rather than the charge of removability. 3

Claim preclusion “provides that a final judgment on the merits bars a subsequent action

between the same parties over the same cause of action.” Channer,

(emphasis

added). Accordingly, the first requirement of claim preclusion is that “the second suit involves the

same ‘claim’ or—‘nucleus of operative fact’—as the first suit.”

at 280 (quoting Waldman v.

Vill. of Kiryas Joel,

, 108 (2d Cir. 2000)). The three factors relevant to that

determination are “(1) whether the underlying facts are related in time, space, origin, or

2 “The related doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) are meant to protect parties from having to relitigate identical claims or issues and to promote judicial economy.” Transaero, Inc. v. La Fuerza Aerea Boliviana,

(2d Cir. 1998). Although sometimes discussed collectively as “res judicata,” these are distinct doctrines subject to different standards. See Migra v. Warren City Sch. Dist. Bd. of Educ.,

, 77 n.1 (1984). While the government addresses both claim and issue preclusion in its brief, we focus only on claim preclusion, as Mullins Cruz raises no arguments in his brief about issue preclusion and acknowledged at oral argument that he asserts claim preclusion. 3 The parties contest whether preclusion principles apply to administrative findings of citizenship in removal proceedings. We need not answer that question, however, because “[e]ven assuming that res judicata does apply to subsequent quasi-judicial proceedings, it will do [Mullins Cruz] no good here.” Channer,

.

3 motivation; (2) whether the underlying facts form a convenient trial unit; and (3) whether their

treatment as a unit conforms to the parties’ expectations.”

(internal quotation marks

omitted). “When a subsequent action . . . relies on facts that occurred . . . after the earlier action

commenced, claim preclusion will not bar a suit . . . based upon legally significant acts occurring

after the filing of a prior suit that was itself based upon earlier acts.” TechnoMarine SA v.

Giftports, Inc.,

(2d Cir. 2014) (internal quotation marks omitted).

Here, the first removal proceeding charged Mullins Cruz with removability based on his

2000 New York conviction for second-degree murder, and an IJ terminated those proceedings in

2004. The current removal proceeding also charged Mullins Cruz with removability, but the

charges were predicated on post-2004 convictions (both in conjunction with and independent from

the 2000 conviction) that could not have been charged in the prior proceeding. 4 That is a different

claim. See

; Channer,

(holding removal proceedings involved different

claims where both charged the petitioner with removability based on aggravated felonies, but

charges were based on different convictions involving different sets of factual predicates).

Because Mullins Cruz’s two proceedings raise different “claims,” i.e., different charges of

removability premised on different convictions, the doctrine of claim preclusion does not bar the

new removal proceedings.

II. Derivative Citizenship

We turn to the merits of Mullins Cruz’s claim that he has derivative citizenship under the

CCA due to his father’s citizenship. A foreign-born petitioner like Mullins Cruz has the burden

4 Mullins Cruz does not challenge the charges of removability or the agency’s denial of relief under the Convention Against Torture.

4 to establish his U.S. citizenship. See Gil,

. In determining whether a person

derived citizenship, the applicable law is the law that was in effect at the time the last requirement

for derivative citizenship was purportedly fulfilled—here, the CCA, which was in effect when

Mullins Cruz turned 18. 5 See Ashton v. Gonzales,

(2d Cir. 2005) (applying the

law in effect when petitioner fulfilled the last requirement for derivative citizenship).

The CCA provides for the automatic citizenship of a child born outside the United States

if the following conditions are met: at least one parent is a citizen, the child is under age 18, and

the child “is residing in the United States in the legal and physical custody of the citizen parent

pursuant to a lawful admission for permanent residence.”

(a). The sole issue in

dispute is whether Mullins Cruz, who was serving a sentence of incarceration during the relevant

period, could be deemed in his father’s physical custody between February 2001 (when the CCA

went into effect, and at which point his father was already a citizen) and July 2002 (when he turned

18). 6 See Drakes v. Ashcroft,

, 190–91 (2d Cir. 2003) (holding that CCA only

confers citizenship on children who satisfy its requirements on or after its February 2001 effective

date). Because we do not agree that Mullins Cruz was in his citizen parent’s physical custody

during the relevant period, he could not have derived citizenship under the CCA.

We considered the CCA’s “physical custody” requirement in Khalid v. Sessions,

(2d Cir. 2018). Khalid was in federal pretrial juvenile detention beginning about a month

5 Mullins Cruz concedes that he did not derive citizenship under the law in place before the CCA. 6 It is undisputed that Mullins Cruz’s father naturalized in the 1990s (while his mother did not naturalize until he was over 18) and that Mullins Cruz has resided in the United States as a lawful permanent resident since 1988; the agency also assumed, arguendo, that he remained in his father’s “legal” custody until he was 18.

5 before his father naturalized, and when he turned 18 two months later.

. We concluded

there that the statutory term “physical custody” was ambiguous and, looking to “the broader

statutory context and its history” and “state law definitions of ‘physical custody’ in the family law

context,” concluded that it did not necessarily require that the parent and child reside together

during the relevant period.

at 132–35. We further reasoned that the statute should be

construed to promote family unity and concluded that physical custody does not end during a

“brief, temporary separation from the naturalizing parent.”

. Instead of requiring actual

residence, we found that the physical custody requirement was intended to ensure that the child

receiving this benefit had a “strong connection” to both the United States and the U.S. citizen

parent.

at 136–38. The critical factors supporting the conclusion that Khalid satisfied the

physical custody requirement included that he lived with his father from Khalid’s entry into the

United States until his detention and that his detention was brief, temporary, pre-trial, and in a

juvenile facility designed to preserve “the family’s continued involvement in the juvenile’s life

during the period of federal pretrial detention.”

at 138–39, 141. Recognizing the significance

of Khalid’s detention being pretrial, we noted that “[t]here may be reason . . . to determine that a

minor is not in a naturalizing parent’s physical custody for purposes of 8 U.S.C. § 1431” if the

minor is incarcerated after having been adjudicated guilty of a crime. Id. at 140.

Khalid does not establish Mullins Cruz’s entitlement to relief. Unlike Khalid, Mullins

Cruz had already been incarcerated for about a year at the time he could possibly have benefited

from the CCA, and that incarceration was pursuant to a conviction. See Lemonious v. Barr,

, 646-47 (2d Cir. 2020) (summary order) (finding petitioner did not satisfy the CCA’s

“physical custody” requirement where he was convicted and incarcerated in an adult facility for a

6 period beginning about a year before his parent’s naturalization and ending after he turned 18).

And there was no possibility that Mullins Cruz could have been returned to his parents’ custody

as a minor given his indeterminate sentence of six years’ to life imprisonment. See

(1)(a)(i) (“A person who is serving one or more than one indeterminate sentence of

imprisonment may be paroled from the institution in which he or she is confined at any time after

the expiration of the minimum . . . period of the sentence . . . reduced by the merit time allowance

granted.”). We acknowledge that Mullins Cruz was housed in a juvenile facility, one designed to

maintain contact with family, until after he turned 18, but the duration and authority for Mullins

Cruz’s detention are the decisive factors here: his post-adjudication incarceration was neither

“temporary” nor “brief,” but rather permanently separated him from his parents’ care as a minor,

unlike in Khalid. Khalid,

. Because Mullins Cruz was not in his citizen parent’s

physical custody during the relevant period, he did not derive citizenship.

We have considered all of Mullins Cruz’s remaining arguments and find them to be without

merit. Accordingly, the petition for review is DENIED.

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

7