FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANA PARTAP,
Petitioner, No. 05-75777
v.
Agency No.
A072-132-686
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 11, 2010—San Francisco, California
Filed May 10, 2010
Before: Ferdinand F. Fernandez, Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
6859
6860 PARTAP v. HOLDER
COUNSEL
Martin Avila Robles, San Francisco, California, Marie Kayal,
San Francisco, California, for the petitioner.
Ronald E. LeFevre, San Francisco, California, Virginia Lum,
San Francisco, California, Manuel Palau, Washington, DC,
for the respondent.
PARTAP v. HOLDER 6861
OPINION
PER CURIAM:
Rana Partap, a native and resident of India, petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”) affirming an immigration judge’s denial of his claim
for cancellation of removal and denying his motion to
remand. We have jurisdiction pursuant to 8 U.S.C. § 1252 and
deny the petition for review.
[1] Partap contends that the BIA erred in holding that his
then-unborn daughter did not constitute a qualifying relative
under 8 U.S.C. § 1229b(b)(1)(D). That provision requires
non-permanent resident applicants for cancellation of removal
to demonstrate “that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.” The term “child” for pur-
poses of cancellation of removal is defined in 8 U.S.C.
§ 1101(b)(1). We have previously rejected a “functional
approach to defining the term ‘child’ ” and have noted that the
section:
simply does not contemplate the cancellation of
removal based on the hardship to be suffered by a
“de facto” child. Rather, cancellation of removal is
appropriate only if the detailed statutory definition of
“child” is met.
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1176-78 (9th
Cir. 2007); see also Montero-Martinez v. Ashcroft, 277 F.3d
1137, 1144-45 (9th Cir. 2002). In addition, § 1229b(b)(1)(D)
requires that the qualifying relative be “a citizen of the United
States.” Citizenship status requires birth in the United States
or naturalization, under both the Constitution and the govern-
ing statute. See U.S. Const. amend. XIV, § 1 (“All persons
born or naturalized in the United States, and subject to the
6862 PARTAP v. HOLDER
jurisdiction thereof, are citizens of the United States . . . .”);
8 U.S.C. § 1401(a) (conferring citizenship on “a person born
in the United States, and subject to the jurisdiction thereof
. . . .”).
[2] Partap’s unborn daughter did not meet the statutory
definition of “child” in § 1101(b)(1) at the time of his hearing
before the immigration judge, and the BIA therefore did not
err in determining that the unborn child was not a qualifying
relative for purposes of cancellation of removal.
[3] Partap also argues that the BIA abused its discretion in
denying his motion for a remand after his daughter’s birth on
the ground that he failed to establish prima facie eligibility for
cancellation of removal. However, because Partap did not ten-
der any evidence showing “exceptional and extremely
unusual hardship,” the BIA did not abuse its discretion in
declining to enter a remand order. See Young Sun Shin v.
Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (motions to
reopen “must . . . be supported by affidavits or other evidenti-
ary materials demonstrating prima facie eligibility for the
relief sought”); Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1063 (9th Cir. 2008) (“The formal requirements of a motion
to remand and a motion to reopen are the same.”) (citation
omitted).
PETITION DENIED.