18-1048-cv
Lainez v. McHenry

                            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 A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        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
16th day of June, two thousand twenty.

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            MICHAEL H. PARK,
                        Circuit Judges.
_____________________________________________________

ROGER LAINEZ,

                Plaintiff-Appellant,

                       v.                                                  18-1048-cv

JAMES McHENRY, Director of U.S. Citizenship and Immigration
Services, L. FRANCIS CISSNA, Director of U.S. Citizenship and
Immigration Services, THOMAS CIOPPA, New York City Field
District Director U.S. Citizenship and Immigration Services.

            Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:       Malik Havalic (Vilia B. Hayes, Dustin P. Smith, on the brief),
                               Hughes Hubbard & Reed LLP, New York, N.Y.

Appearing for Appellees:       Christopher Connolly, Assistant United States Attorney (Joseph N.
                               Cordaro, Assistant United States Attorney, on the brief), for
                               Geoffrey S. Berman, United States Attorney for the Southern
                               District of New York, New York, N.Y.
     Appeal from a judgment of the United States District Court for the Southern District of
New York (Pitman, M.J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

       Appellant Roger A. Lainez appeals from the March 9, 2018 judgment of the United
States District Court for the Southern District of New York (Pitman, M.J.) dismissing his
complaint for lack of subject matter jurisdiction. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        The district court here found it lacked jurisdiction to review the removal order and the
immigration judge’s (“IJ”) determination that Lainez was not a U.S. citizen. The district court
reasoned that while Lainez claimed citizenship as a defense during his removal hearing, he failed
to appeal the denial of his claim to the Board of Immigration Appeals (“BIA”). The district court
deemed Lainez’s failure to exhaust fatal to his citizenship claim. Even if Lainez did exhaust his
claim, the district court held, Lainez could appeal the BIA’s determination only through a
petition for review in this Court, not in a proceeding before the district court. The district court
therefore held that it lacked jurisdiction to review Lainez’s claim of citizenship.

        On appeal, Lainez argues he was not required to exhaust his citizenship claim. He urges
this Court to treat this proceeding as a petition for review of a final order of removal and find
that his claims are not barred for untimeliness. He further argues he derived citizenship through
his mother’s naturalization because he was born out of wedlock and was never legitimated under
Salvadoran law. Alternatively, he argues that he has established material issues of fact as to
derivative citizenship justifying remand or transfer to the district court. The government
principally argues that both the district court and this Court lack jurisdiction to consider Lainez’s
claims for derivative citizenship because Lainez failed to file a timely petition for review,
rendering any such petition time barred.

        We review a district court’s dismissal for lack of subject matter jurisdiction de novo.
Singh v. U.S. Citizenship & Immigration Servs., 878 F.3d 441, 445 (2d Cir. 2018). We agree with
the district court that it lacked jurisdiction to consider Lainez’s appeal. District courts generally
lack jurisdiction to entertain a direct or indirect attack on a removal order. See Delgado v.
Quarantillo, 643 F.3d 52, 53, 55 (2d Cir. 2011) (citing 8 U.S.C. § 1252(a)(5)). “[A] petition for
review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5), and Lainez failed to pursue such
a petition here.

        Lainez’s reliance on Poole v. Mukasey, 522 F.3d 259 (2d Cir. 2008), is unavailing. In
Poole, this Court held that “[t]he statutory administrative exhaustion requirement of
§ 1252(d)(1)”— a jurisdictional prerequisite to appellate review—“does not apply to a person
with a non-frivolous claim to U.S. citizenship.” Id. at 264 (internal quotation marks omitted).
The Court observed that “[r]elinquishing citizenship requires an affirmative act.” Id. Lainez
seeks to extend Poole’s holding to encompass the time limitation of 8 U.S.C. § 1252(b)(1). We
decline to do so, as Poole deals only with exhaustion, not time limitations. Because we lack



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jurisdiction to consider Lainez’s nonfrivolous citizenship claim, the district court did not err when it
declined to transfer Lainez’s complaint to this Court. See 28 U.S.C. § 1631.

        However, “the Executive Branch has no authority to remove a citizen.” Duarte-Ceri v.
Holder, 630 F.3d 83, 87 (2d Cir. 2010). As the government itself notes, Lainez asserts a
nonfrivolous citizenship claim that “presents genuine issues of material fact—not to mention
complex questions of law.” Appellee’s Br. at 23. To pursue his claim, Lainez may seek to reopen
his removal proceedings before the BIA. In a letter submitted to this Court, the government
agreed not to remove or detain Lainez so long as he timely moves to reopen his proceedings
before the immigration court, and timely pursues any appeals necessary.

        We have considered the remainder of Lainez’s arguments and find them to be without
merit. Accordingly, the judgment of the district court is AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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