FILED
NOT FOR PUBLICATION
DEC 4 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ARTURO ESTRADA-CHAVEZ, No. 14-73382
Petitioner, Agency No. A043-283-526
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 20, 2017
San Francisco, California
Before: WALLACE and CALLAHAN, Circuit Judges, and RESTANI,** Judge.
Petitioner Oscar Arturo Estrada-Chavez, a lawful permanent resident who
was born in Guatemala, petitions for review of an order of the Board of
Immigration Appeals (Board) denying his claim to derivative citizenship. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
jurisdiction pursuant to 8 U.S.C. 1252(b)(5)(A) and we deny the petition.
Petitioner’s citizenship claim is governed by former section 321(a) of the
Immigration and Nationality Act. 8 U.S.C. § 1432 (repealed 2000). Section 321(a)
provides that a child born outside of the United States to alien parents
automatically acquires citizenship upon, among other conditions: (1) “[t]he
naturalization of the parent having legal custody of the child when there has been a
legal separation of the parents,” and (2) “[s]uch naturalization takes place while
such child is under the age of eighteen years.” 8 U.S.C. § 1432(a)(3), (a)(4). Taken
together, these two conditions require Petitioner to prove that his parents had
legally separated at some point while Petitioner was under the age of eighteen
years.
We review de novo legal questions involved in a claim of derivative
citizenship. Minasyan v. Gonzales, 401 F.3d 1069, 1074 (9th Cir. 2005) (citations
omitted). We look to state law, in this case California law, when deciding whether
a legal separation occurred. Id. at 1076–77. Where, as here, the record presents no
genuine factual dispute as to the constituent elements of a derivative citizenship
claim, the court of appeals decides the claim. See Ayala-Villanueva v. Holder, 572
F.3d 736, 738 (9th Cir. 2009) (citing Chau v. INS, 247 F.3d 1026, 1029 (9th Cir.
2001)); Minasyan, 401 F.3d at 1074. Given that Petitioner admits birth in
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Guatemala, he has the burden of proving United States citizenship with
“substantial credible evidence.” Ayala-Villanueva, 572 F.3d at 737 n.3.
Here, Petitioner presents affidavits by his parents as evidence that his
parents were legally separated under California law as of the year 2000, when
Petitioner was 17 years old. Under California law, legal separation occurs when the
spouses “have come to a parting of the ways with no present intention of resuming
marital relations.” Minasyan, 401 F.3d at 1078 (quoting In re Marriage of
Marsden, 181 Cal. Rptr. 910, 914 (Ct. App. 1982)). “The question is whether the
parties’ conduct evidences a complete and final break in the marital relationship.”
In re Marriage of Marsden, 181 Cal. Rptr. at 914 (citation omitted).
The affidavits of Petitioner’s parents do not demonstrate a legal separation
under California law. Taken as true, the affidavits show that Petitioner’s parents
have been living separately since the year 2000, and that they are experiencing, or
have experienced, strains in the marriage because of Petitioner’s mother’s decision
to work as a missionary. At most, then, the record establishes some degree of
marital discord between the spouses during the relevant time period. These
affidavits do not, however, constitute substantial credible evidence of “a complete
and final break in the marital relationship” before Petitioner turned 18 years old. In
re Marriage of Baragry, 140 Cal. Rptr. 779, 781 (Ct. App. 1977) (“That husband
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and wife may live in separate residences is not determinative [of legal
separation].”) Therefore, Petitioner has not satisfied his burden to show entitlement
to derivative citizenship on the basis of his parents’ legal separation.
The petition for review is DENIED.
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