                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 27 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CESAR HARLEY ROBLETO, AKA                        No. 09-71651
Cesar Robleto,
                                                 Agency No. A025-413-274
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted August 5, 2013
                               Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**

       Petitioner Cesar Harley Robleto, a native of Nicaragua, petitions for review

of the BIA order denying his claim of derivative citizenship and ordering his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.
                                          -2-
removal to Nicaragua. We have jurisdiction over this appeal pursuant to 8 U.S.C.

§ 1252(a)(1), and we grant the petition for review.

      The BIA erred when it held that Robleto had not received derivative

citizenship. Under 8 U.S.C. § 1432, the statute in effect in 1999, Robleto received

derivative citizenship when his mother was naturalized and his father, who was not

a U.S. citizen, did not legitimate him.

      We look to California law to determine if legitimation occurred. Minasyan

v. Gonzales, 401 F.3d 1069, 1076-77 (9th Cir. 2005). Under California Family

Code § 7611, a child is legitimated if the father “receives the child into his home

and openly holds out the child as his natural child.” Cal. Fam. Code § 7611. The

BIA, relying in part on the IJ’s reasoning, erred in its application of § 7611 when it

concluded that Robleto’s father had received Robleto into his home. The

testimony of Robleto and his mother, which the IJ found credible, as well as the

documents produced to the IJ, demonstrate that Robleto’s father was only an

occasional visitor at Robleto’s mother’s house. The father never received Robleto

into his home. See In re Spencer W., 56 Cal. Rptr. 2d 524, 527 (Cal. Ct. App.

1996) (affirming the trial court’s determination that the alleged father did not

legitimate the child because, while the father lived with the mother and sometimes
                                         -3-
took care of the child, he was a guest in the mother’s home). Thus, Robleto’s

father did not legitimate him under California law.

      Because Robleto was under 18 when his mother became a naturalized

citizen, his father never legitimated him, and the other conditions of 8 U.S.C. §

1432 were satisfied, Robleto acquired derivative citizenship when his mother

naturalized. Therefore, he was not subject to removal.

      We GRANT the petition for review.
