Monssef Cheneau v. Merrick Garland

                              NOT FOR PUBLICATION                        FILED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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