NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONSSEF CHENEAU, No. 15-70636
Petitioner, Agency No. A077-279-939
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 6, 2020
Portland, Oregon
Before: BENNETT and MILLER, Circuit Judges, and PEARSON,** District
Judge.
Monssef Cheneau petitions this court for review of the determination by the
Board of Immigration Appeals (“BIA”) that he does not qualify for derivative
citizenship and is removable. We have jurisdiction pursuant to 8 U.S.C.
§ 1252(b)(5)(A) and grant the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
We previously held that Cheneau did not qualify for derivative citizenship
under the old version of the derivative citizenship statute, 8 U.S.C. § 1432(a), which
gave derivative citizenship to “[a] child born outside of the United States of alien
parents” who (1) was “residing in the United States pursuant to a lawful admission
for permanent residence at the time of the naturalization of the parent” or (2)
“thereafter [began] to reside permanently in the United States while under the age of
eighteen years.” 8 U.S.C. § 1432(a)(5); see Cheneau v. Barr, 971 F.3d 965, 968–70
(9th Cir. 2020) (per curiam), rev’d en banc, --- F.3d ----, 2021 WL 1916947 (9th Cir.
May 13, 2021). According to Cheneau, he satisfied the requirements of the second
pathway when he began to reside permanently in the United States prior to turning
eighteen, despite not having lawful permanent resident status. Id. at 969–70. In
rejecting that argument, we were constrained by this court’s holding in Romero-Ruiz
v. Mukasey, 538 F.3d 1057, 1062–63 (9th Cir. 2008), overruled by Cheneau, --- F.3d
----, 2021 WL 1916947, which held that both pathways of § 1432(a)(5) required
lawful permanent resident status. Cheneau, 971 F.3d at 969–70.
An en banc panel of this court has now overruled Romero-Ruiz and held “that
the phrase ‘or thereafter begins to reside permanently in the United States,’ 8 U.S.C.
§ 1432(a)(5), does not require that the child have necessarily been granted lawful
permanent residency, although the child must have demonstrated an objective
official manifestation of permanent residence.” Cheneau v. Garland, --- F.3d ----,
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2021 WL 1916947, at *2 (9th Cir. May 13, 2021). In its briefing, the government
stated that “no genuine issue of material fact exists concerning [Cheneau’s]
citizenship claim.” And at oral argument, the government conceded that “if [the
court] reached [Cheneau’s] statutory construction argument, and agreed with
[Cheneau], . . . there would be no need” to remand for “any factual findings regarding
[Cheneau’s] derivative citizenship.” We thus hold that Cheneau obtained derivative
citizenship under 8 U.S.C. § 1432(a)(5) in 2000 when he applied for adjustment of
status to lawful permanent resident. See Cheneau, 971 F.3d at 969.
As a result, Cheneau is a citizen of the United States. Accordingly, we
GRANT the petition for review, VACATE the BIA’s decision, and REMAND with
instructions to terminate Cheneau’s removal proceedings.
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