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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