11-3988
Crooks v. Holder
BIA
A037 457 365
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 26th day of June, two thousand thirteen.
PRESENT:
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
RICARDO O’BRIEN CROOKS,
AKA RICH DINERO,
Petitioner,
v. 11-3988
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Ricardo O’Brien Crooks, pro se,
Gadsden, AL.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Stephen J. Flynn,
Assistant Director; Robert Michael
Stalzer, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Ricardo O’Brien Crooks, a native and citizen
of Jamaica, seeks review of the September 15, 2011 decision
of the BIA denying his motion to reopen. In re Ricardo
O’Brien Crooks, No. A037 457 365 (B.I.A. Sept. 15, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Title 8, Section 1252(a)(2)(C) of the United States
Code provides that no court shall have jurisdiction to
review the final order of removal against an alien, such as
Crooks, who is removable by reason of having committed an
aggravated felony or violating a law relating to a
controlled substance. This jurisdictional bar extends to
petitions seeking review of the BIA’s denials of motions to
reopen, where review of the underlying removal order would
be prohibited by § 1252(a)(2)(C). See Durant v. INS, 393
F.3d 113, 115-16 (2d Cir. 2004). We nonetheless retain
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jurisdiction to review constitutional claims and “questions
of law.” 8 U.S.C. § 1252(a)(2)(D).
To the extent that Crooks argues that the BIA erred in
finding his motion to reopen time-barred, we do not have
jurisdiction to consider that argument because it
essentially quarrels over the correctness of the BIA’s
factual findings. See 8 U.S.C. § 1252(a)(2)(C); Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
2006). However, Crooks’s argument that the BIA erred in
rejecting his claim that he obtained derivative citizenship
through his mother because of the inordinate delay in
processing her naturalization application raises a question
of law over which we have jurisdiction. See 8 U.S.C.
§ 1252(a)(2)(D); Poole v. Mukasey, 522 F.3d 259, 262 (2d
Cir. 2008). We nevertheless find that the petition here
should be denied.
Throughout his removal proceedings, Crooks argued that
he was entitled to derivative citizenship through his
mother, because she had applied for naturalization in
September 1996 — eight months before his eighteenth birthday
— and did not naturalize until June 2000, nearly four years
later. However, there is no evidence as to when the former
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Immigration and Naturalization Service (“INS”) approved the
application for naturalization, and there are multiple steps
required for naturalization after an application is
approved, the timing of which are dependent upon the
applicant, not the government. Accordingly, in this case,
Crooks has not shown that there was any undue delay on the
part of the INS in approving the naturalization application.
Cf. Poole, 522 F.3d at 261-62 (indicating that evidence in
the record showed that petitioner’s mother filed her
application for naturalization fifteen months prior to his
eighteenth birthday and that the application for
naturalization was granted two years after it was filed).
Because there is no evidence demonstrating that the INS
took an unreasonably long time in processing Crooks’s
mother’s naturalization application, Crooks has no colorable
claim to derivative citizenship, and the BIA did not abuse
its discretion in denying his untimely motion to reopen.
See 8 U.S.C. § 1229a(c)(7)(C)(i); Poole, 522 F.3d at 265-66;
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
We note that if Crooks wishes to make a claim that the
government must either effectuate his removal to Jamaica, or
release him, the appropriate way to make that claim is via a
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habeas petition under 28 U.S.C. § 2241, filed in the United
States District Court for the Northern District of Alabama,
the district of his confinement. See Zadvydas v. Davis, 533
U.S. 678, 699 (2001) (“Whether a set of particular
circumstances amounts to detention within, or beyond, a
period reasonably necessary to secure removal is
determinative of whether the detention is, or is not,
pursuant to statutory authority. The basic federal habeas
corpus statute grants the federal courts authority to answer
that question.”); Rumsfeld v. Padilla, 542 U.S. 426, 447
(2004) (holding that habeas petitioner should file petition
in the district of his confinement and name as respondent
the person who has custody over him).
For the foregoing reasons, the petition for review is
DENIED, and Crooks’s pending motions for a stay of removal,
appointment of counsel, and release from detention pending
adjudication of his case are DISMISSED as moot. Any pending
request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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