16-3013
Hammond v. Sessions
BIA
A037 215 537
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 29th day of January, two thousand eighteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 REENA RAGGI,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 MICHAEL NOEL ANTHONY HAMMOND,
15 Petitioner,
16
17 v. 16-3013
18 NAC
19 JEFFERSON B. SESSIONS III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Noel Anthony Hammond, pro
25 se.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Stephen J.
29 Flynn, Assistant Director; Robert
30 Michael Stalzer, Trial Attorney,
31 Office of Immigration Litigation,
32 United States Department of
33 Justice, Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Michael Noel Anthony Hammond, a native and
6 citizen of Jamaica, seeks review of a July 25, 2016
7 decision of the BIA denying his June 2016 motion to
8 reconsider his 2003 removal order. In re Michael Noel
9 Anthony Hammond, No. A037 215 537 (B.I.A. July 25, 2016).
10 We assume the parties’ familiarity with the underlying
11 facts and procedural history in this case.
12 A motion to reconsider must be filed within 30 days of
13 the challenged order. 8 U.S.C. § 1229a(c)(6)(A)-(B); 8
14 C.F.R. § 1003.2(b). It is undisputed that Hammond’s June
15 2016 motion to reconsider was untimely because his removal
16 order became final in 2003, 13 years earlier. 8 U.S.C.
17 § 1229a(c)(6)(B). Here, reconsideration was available only
18 under the BIA’s sua sponte authority. 8 C.F.R. §
19 1003.2(a). Despite this procedural posture, we retain
20 jurisdiction to review Hammond’s U.S. citizenship claim.
21 Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010). We
2
1 review the derivative citizenship claim de novo, deferring
2 to the BIA’s reasonable interpretation of ambiguous
3 provisions of the Immigration and Nationality Act (“INA”).
4 Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004); see
5 also Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S.
6 837, 843 (1984).
7 In determining whether Hammond derived citizenship
8 through his mother’s naturalization, we look to the law in
9 effect at the time Hammond claims he fulfilled the last
10 requirement for derivative citizenship. Bueno Gil v.
11 Sessions, 851 F.3d 184, 186 (2d Cir. 2017). In 1987, when
12 Hammond’s mother naturalized, the law governing derivative
13 citizenship provided in relevant part:
14 A child born outside of the United States of alien
15 parents ... becomes a citizen of the United States
16 upon . . . [t]he naturalization of the parent having
17 legal custody of the child when there has been a
18 legal separation of the parents . . . if . . . [s]uch
19 naturalization takes place while such child is under
20 the age of eighteen years.
21
22 8 U.S.C. § 1432(a) (1987), repealed by Child Citizenship
23 Act of 2000, Pub. L. 106–395, § 103, 114 Stat. 1631, 1632
24 (2000).
3
1 The only issue in this case is whether Hammond’s parents
2 were legally separated in 1987, when his mother naturalized.
3 See Brissett, 363 F.3d at 132. Legal separation under
4 § 1432(a)(3) requires more than a de facto separation between
5 married parents: it “requires a formal act which, under the
6 laws of the state or nation having jurisdiction of the
7 marriage, alters the marital relationship either by
8 terminating the marriage (as by divorce) or by mandating or
9 recognizing the separate existence of the marital parties.”
10 Id. at 134.
11 Hammond argues that his parents were legally separated
12 under Jamaica’s Matrimonial Causes Act. See Matrimonial
13 Causes Act (Jamaica) (Jan. 6, 1989). As the Government
14 argues, the Matrimonial Causes Act did not take effect until
15 1989, and thus it cannot provide a basis for a legal
16 separation pre-dating Hammond’s mother’s naturalization in
17 1987 or Hammond’s 18th birthday in 1988. Furthermore,
18 Hammond has not raised a genuine issue of material fact as to
19 whether his parents took formal action to have their
20 separation recognized under the Act or any other Jamaican
21 law. We thus uphold the BIA’s conclusion that Hammond did
4
1 not meet § 1432(a)(3)’s legal separation requirement and so
2 did not derive U.S. citizenship when his mother naturalized.
3 For the foregoing reasons, the petition for review is
4 DENIED. It is further ORDERED that Hammond’s motion to
5 proceed in forma pauperis is DENIED as moot. Any pending
6 request for oral argument in this petition is DENIED in
7 accordance with Federal Rule of Appellate Procedure 34(a)(2),
8 and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5