Walker v. Holder

United States Court of Appeals
For the First Circuit

No. 08-2489

STEPHEN C. WALKER,

Petitioner,

v.

ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya, and Howard,
Circuit Judges.

Gerald Karikari, for petitioner.
Julia J. Tyler, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Tony West, Assistant Attorney General, Civil Division, and Barry J.
Pettinato, Assistant Director, was on brief for respondent.

December 11, 2009
 TORRUELLA, Circuit Judge. When Petitioner Stephen C.

Walker immigrated from Jamaica to the United States in 1992, his

biological grandparents claimed him as their child. In 2005,

Petitioner was convicted of drug-related crimes, after which the

United States government initiated removal proceedings. At that

time, Petitioner was in the custody of his naturalized biological

mother. Petitioner now petitions for judicial review of the final

order of the Board of Immigration Appeals ("BIA"), which affirmed

the decision of an Immigration Judge ("IJ") denying Petitioner's

claim of derivative U.S. citizenship and ordering Petitioner

removed from the United States to Jamaica. Petitioner had argued

before the BIA that removal proceedings should be terminated on the

ground that he qualifies for derivative citizenship through his

naturalized biological mother under the Child Citizenship Act of

2000 ("CCA"), Pub. L. No. 106-395, 114 Stat. 1631, which is

codified at section 320 of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1431. After careful consideration, we affirm

the BIA's ruling.

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 I. Background

A. Facts1

In an affidavit executed on April 23, 2008, Petitioner

stated that he was born in Jamaica, West Indies, on April 26, 1986,

which is also reflected on his birth certificate. Petitioner also

claimed to have always known Anne Marie Walker Wynter ("Wynter") as

his birth mother but that he had never known his birth father,

Everton Anderson ("Anderson").

In an affidavit executed on May 8, 2008, Petitioner's

grandmother, Vashtie Eugenie Walker ("Vashtie"), stated that a

midwife handled Walker's delivery. Vashtie also stated that she

and her husband, Ernest Stephen Walker ("Ernest") (collectively

1
In violation of the Federal Rules of Appellate Procedure,
Petitioner's appellate brief does not include appropriate -- or any
-- citations to the record. See Pet'r's Br. at 2-4; Fed. R. App.
P. 28(a)(7) (explaining that an opposing brief must contain "a
statement of facts relevant to the issues submitted for review with
appropriate references to the record") (emphasis added). In not
preparing this "statement of facts" section according to our rules,
Petitioner's counsel has done a disservice to his client and made
our work more difficult. As we have previously ruled:

Where an appellant has provided defective briefs, the
court in its discretion . . . may scrutinize the merits
of the case insofar as the record permits, or may dismiss
the appeal if the absence of a [record] thwarts
intelligent review . . . . [In this case,] there is a
sufficient record to reach the merits . . . and we choose
to do so. Because, however, appellant has failed to
provide a compliant statement of facts, we resolve any
ambiguities against him.

Fryar v. Curtis, 485 F.3d 179, 182 n.1 (1st Cir. 2007) (internal
quotation marks and citations omitted).

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"the Walkers"), "adopted" Petitioner "shortly after his birth," and

that the midwife, who reportedly informed Vashtie "that the

procedure she followed was appropriate and absolutely legal," gave

the Walkers a birth certificate to that effect. That birth

certificate lists the Walkers as Petitioner's parents. Vashtie

claimed that the reason she and Ernest adopted Petitioner

was because shortly after [Petitioner] was
conceived by [Wynter], the man who [Wynter]
named as his father refused to acknowledge
him. This was of course extremely humiliating
for myself and my husband because we are
baptized Christians and my husband was a
Minister at the time. We did not want
[Petitioner] to be bastardized and so we
agreed to adopt him with the consent of his
mother . . . Wynter, our daughter.

Just how consensual that adoption was, however, is a matter of

contention. In an affidavit executed on April 17, 2008, Wynter

states, "[s]hortly after [Petitioner] was born, my parents informed

me that they adopted [Petitioner] and told me that I had no rights

to [Petitioner] . . . ."

Petitioner states that the Walkers immigrated to the

United States in 1988. On February 18, 1988, at the U.S. Embassy

in Kingston, Jamaica, the Walkers listed Petitioner as their son on

their visa applications.

On November 16, 1989, Vashtie filed a visa petition for

Petitioner, claiming that he was the Walkers' son. The same day,

Vashtie filed a visa petition for Wynter, which lists three of

Wynter's children but omits Petitioner.

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 On March 9, 1992, Marcia Walker, Petitioner's maternal

aunt, completed an immigrant visa application on Petitioner's

behalf that identified the Walkers as his parents. As a result,

Petitioner himself immigrated to the United States (via Miami,

Florida) as a purportedly lawful permanent resident ("LPR") on

April 16, 1992.

On May 3, 1994, at the U.S. Embassy in Kingston, Wynter

submitted an immigrant visa application, on which she listed four

children but omitted Petitioner. Wynter then immigrated to the

United States four days later.

In 1998, the Walkers returned to Jamaica without having

been naturalized in the United States.

On April 27, 2001, Wynter, in her Application for

Naturalization, listed Petitioner as one of her six children.

Wynter became a naturalized U.S. citizen on November 2, 2001.

On October 5, 2004, after Petitioner's initial immigrant

visa expired, he successfully applied for a new visa, listing the

Walkers as his parents.

B. Procedural History

We review the procedural history of this case, from the

date of Petitioner's criminal conviction until his appeal to this

court.

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 1. Petitioner's Criminal Conviction

On July 6, 2005, Petitioner pled guilty to five counts of

cocaine distribution in Suffolk Superior Court in Boston,

Massachusetts, resulting in a suspended sentence and probation. In

2006, Petitioner violated the terms of his probation and the state

court imposed yet a further term of probation.

2. DHS's Removability Charge against Petitioner

On January 22, 2007, the U.S. Department of Homeland

Security ("DHS") issued Petitioner a Notice to Appear, or Form I-

862, placing him into removal proceedings. Three days later, the

DHS charged Petitioner with being deportable pursuant to section

237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for

being an alien convicted of an aggravated felony as defined in

section 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B).

On March 20, 2007, an IJ in Boston, Massachusetts,

ordered Petitioner to file a written brief "on or before April

10th, 2007" with respect to the facts and the law regarding his

claim that he was a U.S. citizen, particularly the claim that he

had derived U.S. citizenship. The IJ warned Petitioner that he

must make a written request before April 10, 2007 for any extension

to that "call-up" date for the brief, and that any extension

granted would "only be for a few days."

On April 24, 2007 (fourteen days after the stated

deadline), Petitioner filed a brief in support of his Petition to

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Review the removal proceedings pending against him and requested a

Stay of Deportation. In that brief, Petitioner argued that he

qualified for exemption from removal proceedings because he had

derived U.S. national status through Wynter, his natural mother,

who was a naturalized U.S. citizen, under section 320(a) of the

INA, 8 U.S.C. § 1431(a).

3. Immigration Judge's First Decision

On May 1, 2007, the IJ issued an oral decision concerning

Walker's removability. The IJ denied Petitioner's requests for a

stay and continuation of proceedings and also rejected Petitioner's

application for cancellation of removal under section 240A(a) of

the INA. The IJ further ordered that Petitioner be removed from

the United States to Jamaica based upon the charge of removability

set forth in Petitioner's Notice to Appear. The IJ observed that

Petitioner was not eligible for any other form of relief because he

had not asserted such eligibility nor had he requested to apply for

any other form of relief.

The IJ found that Petitioner abandoned his claim of

derivative citizenship. The IJ noted that, although Petitioner

ultimately filed his brief on the matter on April 24, 2007,

Petitioner did not submit a brief on or before April 10, 2007, nor

did he request a continuation or an extension of the call-up date

to file that brief. In response to Petitioner's arguments about

why his derivative citizenship claim should not be found to be

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abandoned, the IJ stated that none of Petitioner's arguments

constituted good cause because Petitioner had sufficient time since

he was detained and brought before the IJ on January 30, 2007 to

explore this case.

The IJ also responded to the merits of Petitioner's

argument that he is not removable from the United States as one

convicted of an aggravated felony. Petitioner argued that his

conviction does not meet the definition of an aggravated felony as

set forth in 8 U.S.C. § 1101(a)(43)(B) because he was not sentenced

to imprisonment. The IJ responded that Petitioner's argument

failed because the statute does not require a specific sentence.

Petitioner further argued that he was not removable because he had

been an LPR for more than seven years; he was the father of a U.S.

citizen who suffers from a medical condition; and he intended to

marry a U.S. citizen. The IJ responded that all of these arguments

fail because Petitioner was convicted of an aggravated felony,

which made him ineligible to apply for cancellation of removal

under section 240A(a) of the INA, 8 U.S.C. § 1229b(a), which

explicitly requires that in order for the Attorney General to

consider cancellation of removal, the deportable alien must show

that he has not been convicted of an aggravated felony. See 8

U.S.C. § 1229b(a)(3).

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 4. Petitioner's Application for Certificate of
Citizenship

The same day that the IJ found Petitioner removable as

charged, May 1, 2007, Petitioner filed an application, dated

April 24, 2007 (the same day that Petitioner filed a brief in

support of his Petition to Review the removal proceedings pending

against him and requested a Stay of Deportation), for a Certificate

of Citizenship, or Form N-600, with the U.S. Citizenship and

Immigration Services ("USCIS") of the DHS. On the form, Petitioner

claimed U.S. citizenship through a U.S. citizen parent (naming

Wynter as his U.S. citizen mother) and that he had not been

adopted.

On May 31, 2007, the USCIS denied Petitioner's

application because, "under the nationality laws, a child, under

the age of eighteen on February 27, 2001, may not automatically

derive U.S. Citizenship through his biological mother who

naturalized, where the child's maternity, viability of his lawful

permanent resident status, and legal and physical custody have not

been definitively established."

The USCIS observed that the Walkers "officially and under

oath listed you as their child" when they immigrated to the United

States. The USCIS further noted that, contrary to claims found in

the rest of the USCIS records that antedate Petitioner's 2004

indictment and 2005 conviction, only one such record -- Wynter's

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2001 naturalization application -- listed Wynter as Petitioner's

mother. Moreover, the USCIS observed:

It is only now that we receive a concerted
effort and explanation to establish that your
listed parents were really your grandparents
and your real mother is a naturalized citizen.
You now argue that your grandparents effected
an illegal (informal) "adoption" to which your
mother acquiesced, despite the fact that no
court or governmental requirements of any kind
were complied with in Jamaica, Massachusetts,
or any other jurisdiction . . . .

Knowing a mid-wife in Jamaica, they conspired
to falsely register themselves as your
biological parents, despite the fact that your
grandmother was then 53 years of age and had
already had her ovaries and/or uterus removed
in Jamaica for medical reasons shortly after
the birth of her last actual child in 1963
. . . . Despite the efforts of your mother,
and now of your counsel, [the Walkers] still
explicitly maintain in an affidavit dated
February 23, 2007, that they are your "natural
parents" and only granted "custody" of you to
your mother in 1998.

The USCIS found that Petitioner had failed to meet his burden of

proof concerning section 320(a) of the INA, considering "[t]he

pattern of deceit surrounding what you now assert was a false birth

certificate and the complicated and intertwined residence/custody

issues with your mother and grandparents." The USCIS concluded

that, because Petitioner did not possess "a viable, lawful

permanent residence, we believe that you lack the fundamental

statutory prerequisite for automatic derivative citizenship."

On July 2, 2007, Petitioner filed a notice of appeal with

the USCIS's Administrative Appeals Office ("AAO") challenging the

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USCIS's decision to deny Petitioner's application for Certificate

of Citizenship. The AAO dismissed Petitioner's appeal.

5. BIA's First Decision

On May 29, 2007, Petitioner filed a timely appeal of the

IJ's decision to the BIA contending that the IJ erred in finding

that Petitioner abandoned his derivative citizenship claim. On

appeal, Petitioner submitted the following new evidence to

establish derivative citizenship: (1) an amended birth certificate

dated June 1, 2007, indicating that Wynter, not Vashtie, was

Petitioner's mother; (2) DNA results from July 19, 2007 comparing

Petitioner and Wynter and concluding that, based on specimens taken

from both of them on July 9, 2007, "[t]he relative chance of

Maternity, assuming a 50% prior chance, is 99.9996% as compared to

an untested, unrelated woman in the Black population"; and (3) the

Form N-600 that Petitioner had filed on May 1, 2007.

On September 4, 2007, the BIA, citing the new evidence on

appeal, remanded the case to the IJ for further proceedings.

6. DHS's Additional Removability Charge Against
Petitioner

On March 26, 2008, the DHS filed an additional charge of

admissibility/deportability, separate from the January 2007 charge

that contended that Petitioner was deportable as an alien convicted

of an aggravated felony. The new charge asserted that Petitioner

was removable pursuant to section 237(a)(1)(A) of the INA, 8 U.S.C.

§ 1227(a)(1)(A), because, at the time of his entry, Petitioner was

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inadmissible pursuant to section 212(a)(7)(A)(i)(I) of the INA, 8

U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant who is not in

possession of a valid unexpired immigrant visa. The DHS

specifically charged that Petitioner was admitted as the child of

an LPR based upon a visa petition filed by Vashtie, in which

Vashtie claimed to be Petitioner's parent but in fact was not.

7. Immigration Judge's Second Decision

On May 13, 2008, in an oral decision, the IJ found that

Petitioner had failed to meet his burden of proof in establishing

that he had been lawfully admitted to the United States for

permanent residence as required by section 320(a)(3) of the INA.

Based upon the DHS's charges in January 2007 and March 2008, the IJ

ordered that Petitioner be removed from the United States to

Jamaica. On June 12, 2008, Petitioner timely appealed the IJ's

decision to the BIA.

8. BIA's Second Decision

On October 27, 2008, the BIA dismissed Petitioner's

appeal, affirming the IJ's denial of Petitioner's claim of

derivative citizenship. The BIA made two rulings. First, the BIA

held that the IJ correctly found that Petitioner could not meet the

requirements of section 320(a)(3) of the INA to establish

citizenship because his residence in the United States prior to the

age of 18 was not pursuant to a lawful admission. Second, the BIA

held that the IJ correctly deemed that Petitioner had abandoned his

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application for cancellation of removal because, at a hearing on

May 25, 2008, Petitioner explicitly declined to pursue that

argument, deciding instead to proceed only with his claim of

derivative citizenship.

Petitioner filed a timely petition for judicial review of

this BIA decision to this court. In this proceeding, Petitioner

argues that he qualifies for derivative citizenship under section

320(a) of the INA. Petitioner bases his claim on two grounds: (1)

at the time of his admission, he was eligible for an immigrant visa

since he was the adopted child of an LPR, and (2) when he was

admitted, he possessed such a valid, unexpired immigrant visa.

Petitioner also argues that, if he is deemed removable, such a

ruling would constitute a retroactive revocation of his permanent

residence card without a formal proceeding, in violation of due

process of law under the Fifth Amendment to the U.S. Constitution.

II. Discussion

A. Standard / Scope of Review

When, as here, the BIA issues its own opinion, we review

the BIA's decision and not the IJ's. Touch v. Holder, 568 F.3d 32,

37-38 (1st Cir. 2009).

Petitioner's claim that he was residing in the United

States "pursuant to a lawful admission for permanent residence" for

purposes of his derivative citizenship claim under the CCA raises

a pure question of law. "We review the BIA's legal conclusions de

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novo, with appropriate deference to the agency's interpretation of

the underlying statute in accordance with administrative law

principles." Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998)

(citing Ipina v. INS, 868 F.2d 511, 513 (1st Cir. 1989)); see also

Mejía-Orellana v. Gonzales, 502 F.3d 13, 16 (1st Cir. 2007) ("We

accord Chevron deference to the BIA's interpretation." (citing

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984)));

Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005) ("Rulings of

law engender de novo review. Even in that realm, however, courts

must defer to the BIA's reasonable interpretations of the statutes

and regulations relating directly to immigration matters."

(emphasis added and citations omitted)).

We also review de novo whether an immigration procedure

comports with due process. See Santana v. Holder, 566 F.3d 237,

240 (1st Cir. 2009) (citing Teng v. Mukasey, 516 F.3d 12, 17 (1st

Cir. 2008)).

B. Petitioner's Alleged Derivative Citizenship

Petitioner may have waived his claim to derivative U.S.

citizenship, as the IJ ruled in his May 1, 2007 decision. However,

consistent with our discretionary de novo review, we assert our

discretion to relax the raise-or-waive rule and thus decide on the

merits, as the BIA did in its October 27, 2008 decision.

The CCA provides, in pertinent part:

(a) A child born outside of the United States
automatically becomes a citizen of the United

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 States when all of the following conditions
have been fulfilled:
(1) At least one parent of the child is
a citizen of the United States, whether by
birth or naturalization.
(2) The child is under the age
of eighteen years.
(3) 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.

(b) Subsection (a) shall apply to a child
adopted by a United States citizen parent if
the child satisfies the requirements
applicable to adopted children under section
101(b)(1) [of the INA].

8 U.S.C. § 1431. Furthermore, "[t]o be eligible for citizenship

under [the CCA], a person must establish that the [statutory]

conditions have been met after February 26, 2001 . . . ." 8 C.F.R.

§ 320.2(a)(2001).

Section 101(b)(1) of the INA, concerning adoption, is

codified at 8 U.S.C. § 1101(b)(1). This statute provides, in

pertinent part:

(1) The term "child" means an unmarried person
under twenty-one years of age who is --
. . .
a child adopted while under the age of
sixteen years if the child has been in the
legal custody of, and has resided with, the
adopting parent or parents for at least two
years . . . Provided, That no natural parent
of any such adopted child shall thereafter, by
virtue of such parentage, be accorded any
right, privilege, or status under this Act
. . . .

8 U.S.C. § 1101(b)(1)(E)(i).

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 Because it is undisputed that Petitioner was born abroad

(in Jamaica), he "is presumed to be an alien and bears the burden

of establishing [his] claim to United States citizenship by a

preponderance of credible evidence." Matter of Baires-Larios, 24

I. & N. Dec. 467, 468 (B.I.A. 2008) (citing Matter of Tijerina-

Villarreal, 13 I. & N. Dec. 327, 330 (B.I.A. 1969)). Because

citizenship confers "privileges and benefits," and, "once granted,

cannot lightly be taken away," any "doubts [about Petitioner's

citizenship] should be resolved in favor of the United States and

against" him. Berenyi v. INS, 385 U.S. 630, 637 (1967) (citing

United States v. Macintosh, 283 U.S. 605, 626 (1931)).

The Petitioner fulfills one -- the second -- of the

requirements for derivative U.S. citizenship under the CCA: that

requirement is undisputed based on the following four concessions

by the government. First, the government acknowledges in its brief

that Wynter, Petitioner's biological mother, was naturalized as a

U.S. citizen on November 2, 2001. Resp't's Br. at 22. Second, the

government also acknowledges that Petitioner was under eighteen

years old on February 26, 2001, when the CCA became effective. Id.

This fact establishes that Petitioner does satisfy the second prong

of the CCA. Third, the government states that Petitioner was

living in Wynter's legal and physical custody on February 26, 2001.

Id. Fourth, as discussed in the next two sections, the government

correctly states that Petitioner has not fulfilled the condition in

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prong three of the CCA, that he was "residing in the United States"

after the CCA became effective "pursuant to a lawful admission for

permanent residence." See id. at 23; INA § 320(a)(3), 8 U.S.C.

§ 1431(a)(3).

1. Interpreting "lawful admission for permanent
residence"

As used in the INA, "[t]he term 'lawfully admitted for

permanent residence' means the status of having been lawfully

accorded the privilege of residing permanently in the United States

as an immigrant in accordance with the immigration laws, such

status not having changed." 8 U.S.C. § 1101(a)(20); see also 8

C.F.R. § 1.1(p) (same, and providing further that "[s]uch status

terminates upon entry of a final administrative order of exclusion,

deportation, or removal").

In its October 27, 2008 order, the BIA, in issuing a

final administrative order for Petitioner's removal, held that the

IJ correctly found that Petitioner was not lawfully admitted to the

United States as a permanent resident because his LPR status was

acquired through the fraud or misrepresentation of third parties,

the Walkers. The BIA noted that its determination was guided by

its decision in Matter of Koloamatangi, in which the BIA determined

that an alien who had acquired LPR status through fraud was

ineligible for cancellation of removal because he had never been

lawfully admitted. 23 I. & N. Dec. 548 (B.I.A. 2003). But in

Koloamatangi, the BIA based its ruling on reasoning beyond mere

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fraud. In fact, the BIA considered "sound" observations from the

Fifth and Ninth Circuits that "the term 'lawfully admitted for

permanent residence' did not apply to aliens who had obtained their

permanent resident status by fraud, or had otherwise not been

entitled to it." Id. at 550 (emphasis added and citations

omitted). In Koloamatangi, the BIA ultimately found that the

"correct interpretation of the term 'lawfully admitted for

permanent residence' is that an alien is deemed, ab initio, never

to have obtained lawful permanent resident status once his original

ineligibility therefor is determined in proceedings." Id. at 551.

In that 2008 order, the BIA further noted that the same

reasoning must apply in Petitioner's case. The BIA asserted that

"it does not matter that the [Petitioner] may have played no part

in the fraud or misrepresentation which enabled him to acquire LPR

status because no finding of fraud on his part is required to

determine that the [Petitioner's] admission was not lawful." In re

Walker, No. A043-219-583 (B.I.A. Oct. 27, 2008). As noted in Part

II(A), we are required to afford some degree of deference to the

BIA's interpretation in this matter.

Our own precedent supports this outcome. In Mejía-

Orellana, we found that the BIA's interpretation of "lawfully

admitted for permanent residence" was reasonable when it concluded

that "an alien who has acquired his '[LPR] status' by fraud or

misrepresentation has not been lawfully admitted and so is

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ineligible for a cancellation of removal." 502 F.3d at 14, 16. We

reasoned that "any other reading would encourage fraud and

misrepresentation in the process of application for lawful

permanent resident status." Id. at 16. We further noted, in

citing case law from the Second, Fifth, Eighth, Ninth, and Eleventh

Circuits, that "[o]ther courts have upheld this interpretation of

the same phrase in different sections of the [INA]: The natural

reading of 'lawful' connotes more than just procedural regularity;

it suggests that the substance of an action complied with the

governing law." Id. (internal quotation marks and citations

omitted).

Petitioner argues in his brief that his lack of intent is

crucial to this case. He contends that "[i]ntent is what the

statute requires." Pet'r's Br. at 8. To support his argument, he

cites 8 U.S.C. § 1182(a)(6)(C)(i), which states that "any alien

who, by fraud or willfully misrepresenting a material fact, seeks

to procure . . . a visa, other documentation, or admission into the

United States . . . is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i)

(emphasis added).2 Petitioner also cites United States v. Dixon,

which states that an act is done "willfully if done intentionally

and deliberately and if it is not the result of innocent mistake,

2
Petitioner cites 8 U.S.C. § 182(a)(6)(C)(i), but it is clear
from the context that Petitioner meant 8 U.S.C. § 1182(a)(6)(C)(i).

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negligence or inadvertence." 536 F.2d 1388, 1397 (2d Cir. 1976)

(internal quotation marks omitted). Pet'r's Br. at 8.

However, as respondent correctly points out:

Walker's argument that "intent" to deceive or
defraud is required under INA § 212(a)(6)
(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) is of no
moment because Walker was not charged under
this provision . . . . Rather, in addition to
being charged as removable as an aggravated
felon, he was charged with being inadmissible
under INA § 212(a)(7)(A)(i)(I), because he did
not possess a valid unexpired immigrant visa
at the time of his entry to the United States,
a provision which, by its very language, does
not require intent to deceive. 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).

Resp't's Br. at 26-27 n.13.

Petitioner also seeks to distinguish his case from Mejía-

Orellana on the basis that Petitioner himself did not commit any

wrongdoing and was a minor when he entered the United States.

However, although Mejía-Orellana involved a party who committed

fraud or misrepresentation himself (by failing to disclose his

arrest on his application for adjustment of status), 502 F.3d at

14, the underlying policy concern is similar in this case. If

Petitioner was considered to have been lawfully admitted for

permanent residence, then the fraud or misrepresentation of third

parties applying on his behalf would be encouraged.

We thus conclude, based on our requisite deference to the

BIA's interpretation and the rationale supporting our own

precedent, that it is not determinative that Petitioner himself

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intended to commit fraud in obtaining admission to the United

States for permanent residence.

We are sympathetic to the fact, as Petitioner notes in

his brief, that Petitioner "was a child when he first entered the

United States and had no control over the actions of his

grandparents; in addition, he did not intend to break any

immigration laws nor obtain admission for permanent residence

through fraudulent means." Pet'r's Br. at 8. However, statutory

interpretation is, in the first instance, the prerogative of the

agency charged with interpreting the statute -- in this immigration

case, the BIA -- and the agency's interpretation in this case is

reasonable. Accordingly, there is no error of law and we are

compelled to affirm.

2. Petitioner's Claim of Derivative U.S.
Citizenship

Petitioner's claim of derivative citizenship presents a

Catch-22 for him. Petitioner cannot pick and choose his status to

satisfy the CCA's cumulative requirements. As Respondent

rightfully points out, Petitioner claims "to be his grandparents'

child for one purpose [(being lawfully admitted into the United

States as an LPR)], and his mother's child for others [(obtaining

derivative U.S. citizenship)] . . . ." Resp't's Br. at 32, n.17.

Even then, however, Petitioner is inconsistent about

whether he was ever actually adopted by his grandparents. On the

one hand, Petitioner concedes that his "adoption" by the Walkers

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"was not a legal process." Pet'r's Br. at 3. Not only does

Petitioner make this concession in his brief, but he did so

multiple times throughout the administrative proceedings: in

testimony before the IJ; in his notice appealing the IJ's May 13,

2008 decision; in his brief in support of his application for

derivative citizenship; and in his Form N-600 Application for

Certificate of Citizenship. On the other hand, Petitioner claims

in his brief that, because Vashtie "adopted" him or he was

otherwise her "child," he held a viable LPR status in 1992.

Pet'r's Br. at 4-6.

Even if Petitioner was indeed lawfully adopted by the

Walkers in 1985, then it is unclear how he would qualify for the

first of the three requirements of the CCA, that "[a]t least one

parent of the child is a citizen of the United States, whether by

birth or naturalization." INA § 320(a)(1); 8 U.S.C. § 1431(a)(1).

It is undisputed that the Walkers are not U.S. citizens. It has

not been established that Petitioner's biological father, Anderson,

is a U.S. citizen or, even if he is, that he qualifies as

Petitioner's "parent" for the purposes of section 320(a)(1) of the

INA. It has also not been established that Wynter, though

incontrovertibly a U.S. citizen, qualifies as Petitioner's "parent"

for the purposes of section 320(a)(1) of the INA.

If Petitioner was not lawfully adopted by the Walkers,

then, given the analysis above, Petitioner does not qualify for the

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third of the three requirements of the CCA, that "[t]he 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." INA § 320(a)(3); 8 U.S.C. § 1431(a)(1).

Petitioner has thus failed to establish his claim to

derivative U.S. citizenship by a preponderance of credible evidence

and is not entitled to such citizenship.

C. Due Process

Petitioner asserts in his brief that he will be deprived

of due process of law under the Fifth Amendment of the U.S.

Constitution if his permanent residence card is "revoked

retroactively" without a formal proceeding. Pet'r's Br. at 4, 9-

10. Without such a proceeding, Petitioner claims, the government

cannot revoke Petitioner's green card or assert that he entered the

United States illegally. Pet'r's Br. at 4. Petitioner claims that

he had no notice and no reasonable opportunity to respond to the

allegations that he lied on his application for lawful permanent

residence. Pet'r's Br. at 10. To support his claim of a

constitutional violation, Petitioner cites Peña-Muriel v. Gonzales,

in which we held that the Fifth Amendment of the U.S. Constitution

entitles aliens to due process of law in deportation proceedings.

489 F.3d 438, 444 (1st Cir. 2007) ("[D]ue process requires that the

alien receive notice of the charges against him, and a fair

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opportunity to be heard before an executive or administrative

tribunal.").

Petitioner's argument fails for two reasons. First, the

characterization that Petitioner's green card was "revoked

retroactively" makes no sense if the card was not lawfully granted

in the first place. See Wong v. INS, 474 F.2d 739, 741 (9th Cir.

1973) (affirming the BIA's determination that aliens' "admission on

visas to which they were not entitled conferred no lawful status"

upon them); De La Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007)

("[An alien] subsequently determined in an immigration proceeding

to have originally been ineligible for . . . status [as an LPR] has

not been lawfully admitted for permanent residence because the

alien is deemed, ab initio, never to have obtained lawful permanent

residence status." (internal quotation marks and citation

omitted)).

The second reason why Petitioner's argument fails is

because he received all of the process that he was due. The USCIS

adjudicated Petitioner's application for a Certificate of

Citizenship. The AAO adjudicated Petitioner's appeal from the

denial of that application. The IJ heard Petitioner's case twice.

The BIA twice reviewed the IJ's rulings.

We have found other such claims of denial of due process

similarly baseless. In Mejía-Orellana, the alien claimed that his

due process rights were violated because he had no notice or

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reasonable opportunity to respond to the allegations that he lied

on his application for lawful permanent residence. 502 F.3d at 17.

We ruled that the alien's claim of denial of due process was

"utterly without merit" because the alien "had three hearings in

front of the IJ and submitted a memorandum in support of his

application for a cancellation of removal after the argument that

his [LPR] status was void ab initio first was raised." Id. Since

Petitioner received at least as much due process as the alien in

Mejía-Orellana, we similarly find that Petitioner's claimed

deprivation of due process is "utterly without merit."

The petition for judicial review is denied.

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