     17-2031
     Cartagena v. Barr
                                                                                   BIA
                                                                           A030 958 643
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 15th day of November, two thousand nineteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JUAN ANTONIO CARTAGENA, AKA JAY
14   GONZALES, AKA STEVEN GONZALEZ,
15            Petitioner,
16
17                       v.                                      17-2031
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     E. Abel Arcia, Jackson Heights,
25                                       NY.
26
27   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
28                                       Attorney General; Jessica A.
29                                       Dawgert, Senior Litigation
30                                       Counsel; Sara J. Bayram, Trial
31                                       Attorney, Office of Immigration
32                                       Litigation, United States
33                                       Department of Justice, Washington,
34                                       DC.
1          UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5          Petitioner Juan Antonio Cartagena, a native and citizen

6    of the Dominican Republic, seeks review of a BIA decision

7    denying his motion to reopen his removal proceedings.                   See

8    In re Juan Antonio Cartagena, No. A 030 958 643 (B.I.A. June

9    6, 2017).        We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case, which

11   we   reference    only    as   relevant    to   Cartagena’s    derivative

12   citizenship claim.

13         Cartagena was born in the Dominican Republic in 1968 to

14   unmarried Dominican citizens.             His father relocated to the

15   United States and, in 1973, Cartagena entered this country as

16   a    lawful   permanent    resident.        Cartagena’s       father,   his

17   custodial parent at that time, naturalized as a U.S. citizen

18   in   1979.     His   mother     naturalized      in   1996,    well   after

19   Cartagena turned 18.

20         We have jurisdiction to review Cartagena’s derivative

21   citizenship claim notwithstanding that we generally lack

22   jurisdiction to review orders of removal based on felony

23   convictions, or the BIA’s discretionary decision to decline
                                  2
1    sua sponte reopening.     See 8 U.S.C. § 1252(a)(2)(C), (D); Gil

2    v. Sessions, 851 F.3d 184, 186 n.1 (2d Cir. 2017); Ali v.

3    Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).          “We review the

4    question of derivative citizenship de novo where, as here,

5    the petitioner claims to be a national of the United States

6    and the record presents no genuine issue of material fact

7    about the petitioner’s nationality.”          Gil v. Sessions, 851

8    F.3d at 186 (internal quotation marks omitted); see also 8

9    U.S.C. § 1252(b)(5)(A).

10   I.   Derivative Citizenship

11        Pursuant to the law of the case doctrine, we decline to

12   revisit     whether   Cartagena     meets   the   requirements    for

13   derivative citizenship under former 8 U.S.C. § 1432(a).           See

14   Cartagena    v.   Sessions,   No.   16-3010   (2d   Cir.   Feb.   14,

15   2017)(reasoning that Cartagena, “who was born out of wedlock,

16   did not automatically derive citizenship from his father

17   under former 8 U.S.C. § 1432(a) because his mother was not

18   naturalized or deceased while he was under 18”); Starbucks

19   Corp. v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198, 208 (2d

20   Cir. 2013) (explaining that, while “not binding,” law of the

21   case doctrine forecloses relitigation of issues decided by

22   prior panel absent “cogent and compelling reasons such as an

23   intervening change of controlling law, the availability of
                                  3
1    new evidence, or the need to correct a clear error or prevent

2    manifest injustice” (internal quotation marks omitted)).

3    II. Equal Protection

4           That does not end our inquiry, however, because Cartagena

5    also    challenges          the    constitutionality          of       8    U.S.C.     §

6    1432(a)(3), under which he sought derivative citizenship.

7    That statutory provision states, in relevant part, that a

8    naturalized mother may automatically confer U.S. citizenship

9    to her child “if the child was born out of wedlock and the

10   paternity       of    the     child     has     not    been        established        by

11   legitimation.”         8 U.S.C. § 1432(a)(3).                 Cartagena asserts

12   that    this    provision         allowing     an    unwed   mother         to    confer

13   citizenship—but        not        an   unwed    father—is          a    gender-based

14   classification that violates equal protection.                             This court,

15   however, has already held that § 1432(a)(3) does not violate

16   equal protection, see Pierre v. Holder, 738 F.3d 39, 48, 50–

17   58 (2d Cir. 2013), and we are bound by that “decision until

18   it is overruled either by this Court sitting en banc or by

19   the Supreme Court,” Doscher v. Sea Port Grp. Sec., LLC, 832

20   F.3d 372, 378 (2d Cir. 2016).

21          Cartagena argues that the Supreme Court’s decision in

22   Sessions       v.    Morales-Santana,          137    S.     Ct.       1678      (2017),

23   overrules Pierre.            It does not.            The statute at issue in
                                           4
1    Morales-Santana, 8 U.S.C. § 1401(a)(7), required an unwed

2    citizen father to reside in the United States for ten years

3    prior to the birth of his child, whereas the statute required

4    only one year of pre-birth residency for an unwed mother to

5    pass citizenship to her child, see Morales-Santana, 137 S.

6    Ct. at 1686.   The Supreme Court held that this difference

7    violated equal protection because it discriminated on the

8    basis of gender and relied on an outdated and unjustifiable

9    understanding of gender roles.   See id. at 1690-98.

10       Section 1432(a), however, does not rely on outdated

11   stereotypes. Rather, it distinguishes between circumstances

12   where a minor has two known and living parents and where a

13   minor has only one parent (either an unwed mother and no

14   paternal legitimation or a deceased parent).    See Lewis v.

15   Gonzales, 481 F.3d 125, 131 (2d Cir. 2007); cf. Morales-

16   Santana, 137 S. Ct. at 1690-94 (distinguishing laws based on

17   outdated stereotypes from those based on “the parent’s filial

18   tie to the child”).   Accordingly, Morales-Santana does not

19   implicate § 1432(a)(3), and Pierre controls.

20

21

22

23
                                  5
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O’Hagan Wolfe,
5                             Clerk of Court




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