Leslie v. Holder

10-1166 Leslie v. Holder BIA Nelson, IJ A044 845 427 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of August, two thousand thirteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KERRY RONALD LESLIE, AKA 14 KERRY R. LESLIE, AKA KERRY LESLIE, 15 Petitioner, 16 17 v. 10-1166 18 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: KERRY RONALD LESLIE, pro se, Batavia, 25 NY. 26 27 FOR RESPONDENT: JESI J. CARLSON (Tony West, Assistant 28 Attorney General; Stephen J. Flynn, 29 Assistant Director; Karen Y. 30 Stewart, Attorney, on the brief), 31 Office of Immigration Litigation, 1 2 United States Department of Justice, 3 Washington, D.C. 4 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Kerry Ronald Leslie, a native and citizen of 11 Jamaica, seeks review of the March 5, 2010, order of the BIA 12 affirming the January 4, 2010, decision of Immigration Judge 13 (“IJ”) Barbara A. Nelson, denying his motion to reopen. In 14 re Kerry Ronald Leslie, No. A044 845 427 (B.I.A. Mar. 5, 15 2010), aff’g No. A044 845 427 (Immig. Ct. N.Y. City Jan. 4, 16 2010). We assume the parties’ familiarity with the 17 underlying facts and procedural history in this case. 18 I. Motion to Rescind 19 We review the denial of a motion to rescind an in 20 absentia removal order under the same abuse of discretion 21 standard applicable to motions to reopen. See Alrefae v. 22 Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Kaur v. BIA, 413 23 F.3d 232, 233 (2d Cir. 2005) (per curiam). The agency’s 24 regulations provide that “[a]n order entered in absentia in 2 1 deportation proceedings may be rescinded only upon a motion 2 to reopen filed . . . [w]ithin 180 days after the date of 3 the order of deportation if the alien demonstrated that the 4 failure to appear was because of exceptional circumstances 5 beyond the control of the alien . . . or . . . [a]t any time 6 if the alien demonstrates that he or she did not receive 7 notice.” 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1)-(2); see also 8 8 U.S.C. § 1229a(b)(5)(C). 9 Leslie’s motion to rescind based on exceptional 10 circumstances was indisputably untimely, as he filed it in 11 December 2009, well beyond 180 days after his July 2007 in 12 absentia removal order; and the agency reasonably found that 13 Leslie received notice of his July 2007 hearing. Aside from 14 his conclusory assertion that he was not aware of the date 15 of his July 2007 hearing, Leslie does not present any 16 challenge to the agency’s finding that he did receive notice 17 of that hearing, and the record reveals that he was 18 personally served notice, orally and in writing, at a 19 hearing before the IJ in December 2006. Accordingly, the 20 agency did not abuse its discretion in denying Leslie’s 21 motion to rescind his in absentia removal order. 22 3 1 II. Sua Sponte Reopening & Derivative Citizenship 2 In general, we lack jurisdiction to review a decision 3 of the BIA not to reopen a case sua sponte pursuant to 4 8 C.F.R. § 1003.2(a), because such a decision is “entirely 5 discretionary.” Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 6 2006). While we retain jurisdiction when the BIA declines 7 to exercise its sua sponte authority based on a 8 misperception of the law, see Mahmood v. Holder, 570 F.3d 9 466, 469-71 (2d Cir. 2009), in the present case, the BIA 10 stated that it declined to exercise its sua sponte authority 11 because Leslie did not demonstrate an exceptional situation 12 warranting reopening. Because Leslie did not present any 13 evidence supporting his claims of citizenship or eligibility 14 for cancellation of removal, the BIA’s decision to decline 15 to exercise its sua sponte authority was based on agency 16 regulations and BIA precedent, and not a misperception of 17 the law. 18 However, despite the lack of agency error, Leslie has 19 raised a non-frivolous claim of U.S. citizenship that merits 20 consideration. Because the Executive Branch has “no 21 authority to remove citizens,” a claim of United States 22 citizenship is “a denial of an essential jurisdiction fact 4 1 in a deportation proceeding” that places the propriety of 2 the entire proceeding into doubt until resolved. Poole v. 3 Mukasey, 522 F.3d 259, 264 (2d Cir. 2008). Thus, the 4 determination of whether Leslie can properly be removed 5 pursuant to the agency’s decision declining to rescind 6 Leslie’s in absentia removal order requires a determination 7 as to whether Leslie is a U.S. citizen. 8 Leslie’s mother’s affidavit asserts that Leslie derived 9 U.S. citizenship either through his mother’s naturalization 10 in 2000, or through adoption by his U.S. citizen stepfather. 11 Because Leslie was born in September 1978, whether he 12 derived U.S. citizenship through his mother’s naturalization 13 is governed by former INA § 321(a). See Drakes v. Ashcroft, 14 323 F.3d 189, 190 (2d Cir. 2003). That section provided, in 15 relevant part, that a child born outside the United States 16 of alien parents becomes a citizen following the 17 naturalization of one parent, if the other parent is 18 deceased and, relevant here, if the parent’s naturalization 19 takes place while the child is under 18 years of age. 20 Leslie states that his father was killed in 1994, and 21 Leslie’s mother advises that she submitted her application 22 for naturalization in April 1996, approximately five months 23 prior to Leslie’s eighteenth birthday. She claims that a 5 1 delay in processing her citizenship application was caused 2 by a failure of the former Immigration and Naturalization 3 Service (“INS”). However, there is no record evidence as to 4 when the INS approved her application for naturalization, 5 and multiple steps are required to achieve naturalization 6 after an application is submitted. The timing of several of 7 those steps is dependent upon the applicant, not the 8 government. Accordingly, Leslie has not shown that there 9 was any undue delay on the part of the INS in approving the 10 naturalization application that would allow him to derive 11 citizenship based on his mother’s naturalization, which 12 occurred after his eighteenth birthday. Cf. Poole, 522 F.3d 13 at 265-66 (recognizing possible legal basis for relieving 14 petitioner of timing requirement for mother’s naturalization 15 where evidence showed that petitioner’s mother filed her 16 application for naturalization fifteen months prior to his 17 eighteenth birthday, and that the application was granted 18 two years after it was filed). 19 Furthermore, Leslie did not derive citizenship through 20 his U.S. citizen stepfather. Leslie has submitted an 21 affidavit from his mother indicating that she married a U.S. 22 citizen, Donald Poe, in 1990, and that Leslie resided with 23 them after his father was killed, as well as a letter from 6 1 Poe stating that he adopted Leslie. Leslie may have become 2 a citizen on that basis only if: Poe adopted Leslie before 3 Leslie’s sixteenth birthday; Leslie resided with Poe for at 4 least two years prior to his eighteenth birthday; and a 5 citizenship application was submitted based on the adoption 6 before Leslie’s eighteenth birthday. See Former 8 U.S.C. 7 §§ 1101(b)(1)(E), (F), 1433(a), prior to amendment on Oct. 8 30, 2000. Because Leslie did not enter the United States 9 and begin residing with his mother and Poe until December 10 1994, he did not live with Poe for the requisite two years 11 prior to his eighteenth birthday in September 1996. 12 Accordingly, even if Poe legally adopted Leslie before his 13 sixteenth birthday——as to which there is no conclusive 14 evidence——he did not acquire U.S. citizenship through that 15 adoption. 16 For the foregoing reasons, the petition for review is 17 DENIED, and Leslie’s pending motion for a stay of removal is 18 DISMISSED as moot. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 7