United States Court of Appeals
For the First Circuit
No. 22-1496
SUNIL KUMAR SHARMA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE DEPARTMENT OF HOMELAND SECURITY
Before
Kayatta, Lynch, and Howard,
Circuit Judges.
Pablo A. Lozano, Law Student Advocate, with whom Philip L.
Torrey, Crimmigration Clinic, Harvard Law School, Andrew Santana,
Serena Hughley, Shing-Shing Cao, and Farris Peale, Law Student
Advocates, were on brief, for petitioner.
David Kim, Trial Attorney, Office of Immigration Litigation,
U.S. Department of Justice, with whom Brian M. Boynton, Principal
Deputy Assistant Attorney General, and Matthew A. Connelly, Senior
Litigation Counsel, Office of Immigration Litigation, U.S.
Department of Justice, were on brief, for respondent.
April 28, 2023
KAYATTA, Circuit Judge. Petitioner Sunil Sharma
challenges a Final Administrative Removal Order on grounds that he
derived U.S. citizenship as a child. Because we hold that he did
not, we deny his petition.
I.
Sharma was born in India in 1979 to Indian-citizen
parents. While he was a young child and still living in India,
his mother moved to the United States and obtained lawful permanent
resident status. In April 1990, after Sharma's father had died,
Sharma came to the United States to live with his mother in
Massachusetts. According to Sharma, he "entered as a child without
lawful immigration status."
On August 24, 1995, Sharma's mother became a naturalized
U.S. citizen. Then, on January 3, 1996, when Sharma was sixteen
years old, Sharma's mother filed an application for lawful
permanent resident status on his behalf. Sharma says that he went
"to an interview with an immigration officer" at which "the officer
said that [his] application could not be approved at that time
because [he] had a juvenile [criminal] record and that [he] would
need to come back." Sharma does not dispute that he had a juvenile
record as of the date of that interview.
Subsequently, on April 16, 1996 -- while Sharma's
application was still pending -- he was involved in a shooting at
a restaurant that resulted in the death of a bystander. He was
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arrested later that same year and, on April 28, 1999, was convicted
of second-degree murder and sentenced to life in prison by a
Massachusetts state court.
Sharma's permanent residence application was denied on
June 17, 1996 for "lack of prosecution," after he failed to appear
for an adjustment interview scheduled for May 22, 1996 without
"notify[ing] [the government] of [his] inability to appear for
[the] interview." Sharma makes no allegation that he had been
arrested by the date of the interview,1 but does allege that he
"could not attend" -- even though he had "planned to go" -- because
he "got into trouble with the law."
After serving over 20 years in prison, Sharma was granted
parole in 2021. On April 7, 2022, the Department of Homeland
Security (DHS) issued the Notice of Intent to Issue a Final
Administrative Removal Order relevant to this petition. The notice
alleged that Sharma was neither a citizen of the United States nor
lawfully admitted for permanent residence, and charged him with
being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having
been convicted of an aggravated felony as defined in 8 U.S.C
§ 1101(a)(43)(A). In response, Sharma asserted that he was not
removable because he had derived U.S. citizenship through his
1 The date of his arrest is not clear from the record, but
the earliest potential arrest date referenced therein is sometime
in June 1996.
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mother in 1996 -- at the time his permanent residence application
was submitted -- pursuant to former section 321(a) of the
Immigration and Nationality Act (INA).
DHS rejected Sharma's proposed reading of former
section 321(a) and issued a Final Administrative Removal Order on
June 1, 2022. Sharma timely filed a petition for review with this
court.
II.
We have jurisdiction to review Sharma's citizenship
claim pursuant to 8 U.S.C. § 1252(b)(5). See Thompson v. Lynch,
808 F.3d 939, 942 n.3 (1st Cir. 2015). Under that statute, if we
determine that "there is a 'genuine issue of material fact' as to
the citizenship claim," then "we must transfer the case to district
court for fact-finding proceedings." Id. (quoting Batista v.
Ashcroft, 270 F.3d 8, 12 (1st Cir. 2001)). If the case turns
"entirely on issues of law, including the meaning of the automatic
citizenship statute in question, . . . our review is de novo and
there is no occasion to transfer the case to a district court."
Fierro v. Reno, 217 F.3d 1, 3 (1st Cir. 2000).
III.
Sharma's only ground for contesting removability is that
he became a citizen pursuant to the derivative citizenship law
that was in effect before he turned eighteen. That law, former
section 321(a) of the INA, provided:
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A child born outside of the United States of
alien parents . . . becomes a citizen of the
United States upon fulfillment of the
following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent
if one of the parents is deceased; or
(3) The naturalization of the parent having
legal custody of the child when there has been
a legal separation of the parents or the
naturalization of the mother if the child was
born out of wedlock and the paternity of the
child has not been established by
legitimation; and if
(4) Such naturalization takes place while such
child is under the age of eighteen years; and
(5) Such child is residing in the United
States pursuant to a lawful admission for
permanent residence at the time of the
naturalization of the parent last naturalized
under clause (1) of this subsection, or the
parent naturalized under clause (2) or (3) of
this subsection, or thereafter begins to
reside permanently in the United States while
under the age of eighteen years.
8 U.S.C. § 1432(a) (1994), repealed by Child Citizenship Act of
2000, Pub. L. No. 106-395, § 103(a), 114 Stat. 1631, 1632.
The government does not contest that Sharma satisfied
the second and fourth conditions of the statute -- his mother, as
his sole surviving parent, naturalized before Sharma turned
eighteen. This appeal thus turns on the fifth condition, half of
which is undisputed because the parties agree that Sharma was not
"residing in the United States pursuant to a lawful admission for
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permanent residence at the time of [his mother's] naturalization."
8 U.S.C. § 1432(a)(5) (1994). So the pivotal question before us
is whether Sharma, after his mother's naturalization, "beg[an] to
reside permanently in the United States while under the age of
eighteen years." Id.
In issuing the Final Administrative Removal Order, DHS
relied on the Board of Immigration Appeals' decision in Matter of
Nwozuzu, 24 I. & N. Dec. 609 (B.I.A. 2008), which held that the
phrase "reside permanently" as used in former section 321(a)(5)
requires the noncitizen child to "acquire lawful permanent
resident status." Id. at 613. Since Sharma never became a lawful
permanent resident, DHS concluded he had not derived citizenship.
Sharma, in contrast, asserts that the statute requires only an
"objective manifestation of . . . intent to reside permanently in
the United States," in line with the interpretation of former
section 321(a)(5) adopted by the Second Circuit in Nwozuzu v.
Holder, 726 F.3d 323, 333 (2d Cir. 2013), and the Ninth Circuit in
Cheneau v. Garland, 997 F.3d 916, 918 (9th Cir. 2021) (en banc).
Sharma argues that his permanent residence application was such a
"manifestation," and thus he derived citizenship when he was
sixteen.
In Thomas v. Lynch, 828 F.3d 11 (1st Cir. 2016), we faced
the same question regarding the meaning of "reside permanently" as
used in former section 321(a)(5). Id. at 14. There, we did not
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need to pick between the dueling meanings presented by the parties
because the petitioner would not have derived citizenship even
under the "objective manifestation" test he urged on the court.
Id. at 14–15.
The same is true here.2 Assuming, without deciding, that
former section 321(a)(5) requires only an "objective manifestation
of . . . intent to reside permanently in the United States," and
further assuming that all of Sharma's factual allegations in the
record are true, Sharma's citizenship claim still fails.3 Sharma
argues that this "objective manifestation" test "depends upon
clear and objectively evaluable metrics of intent," such as an
application for permanent resident status. But subsequent events
can shed light on how reliably the relevant "metric" demonstrates
an individual's intent. Cf. Aponte-Dávila v. Mun. of Caguas, 828
F.3d 40, 48 (1st Cir. 2016) (noting that, for purposes of
determining a party's domicile at the time a diversity action was
filed, "subsequent events may bear on the sincerity of a professed
2As in Thomas, because Sharma's citizenship claim fails
under his own preferred reading of the statute, "we need not decide
whether the BIA's construction of former section 321(a) is
entitled to Chevron deference." Thomas, 828 F.3d at 15 n.4.
3Because we assume Sharma's factual allegations are true,
we have no reason to transfer this case to the district court for
fact-finding. Thompson, 808 F.3d at 942 n.3. Nor has any party
suggested that if we were to adopt the "objective manifestation"
test, we would need to remand this matter to DHS to determine
whether Sharma has met that test.
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intention to remain" (quoting García Pérez v. Santaella, 364 F.3d
348, 351 (1st Cir. 2004))).
In Sharma's case, the subsequent events undermine his
reliance on his permanent residence application as his relevant
"objective manifestation." Sharma, without any prior notice to
the government and having been told he must appear for another
adjustment interview, failed to show up to his May 1996 interview,
and then failed to take any steps to follow up on his application,
ultimately resulting in its denial. The only explanation he
provides for skipping the interview is that he "got into trouble
with the law and could not attend," but he makes no allegation
that he was in custody at the time. Further, the "trouble with
the law" appears to be a reference to the April 1996 shooting,
which occurred after Sharma had already been informed by an
immigration official that his juvenile criminal record posed an
issue for his permanent residence application. Sharma should
therefore have known at the time of the shooting that committing
a serious crime would further imperil his immigration status. The
shooting, the subsequent missed interview, and the absence of any
attempt to revive his application indicate that Sharma lacked
commitment to his application process. Applying Sharma's proposed
reading of former section 321(a)(5) to the facts, we therefore
conclude that his permanent residence application does not show
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the intent to reside permanently that his own proffered legal test
requires.
This conclusion does not conflict with the central
holdings of either the Second Circuit's decision in Nwozuzu or the
Ninth Circuit's decision in Cheneau, each of which adopted the
"objective manifestation" test. In each of those cases, the court
held that the petitioner's application for lawful permanent status
constituted the necessary "objective manifestation" of intent to
reside permanently. Nwozuzu, 726 F.3d at 334; Cheneau, 997 F.3d
at 925; Cheneau v. Garland, 848 F. App'x 301 (Mem.) (9th Cir. 2021)
(concluding, on remand from the en banc court, that the petitioner
had derived citizenship). But in neither case did the petitioner
completely abandon his adjustment-of-status process as is the case
here; to the contrary, the petitioners in both cases ultimately
became permanent residents after they turned eighteen. Nwozuzu,
726 F.3d at 325; Cheneau, 997 F.3d at 918. Further, in Cheneau,
the court specifically noted that its holding would not extend to
an individual who "unlawfully entered the United States" and
subsequently applied for permanent residence, where the individual
"abandoned that application" by "depart[ing] the country knowing
that he needed to remain in the United States while his application
was pending." 997 F.3d at 925 n.6.
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IV.
For the foregoing reasons, the petition for review is
denied.
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