08-4862-ag
Poole v. Holder

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of January, two thousand and ten.

Present:          RALPH K. WINTER,
                  JOHN M. WALKER, JR.,
                  ROSEMARY S. POOLER,
                             Circuit Judges.

_____________________________________________________

RODWELL ARLIE ANTHONY POOLE,


                                                             Petitioner,

                          -v-                                        (08-4862-ag)

ERIC H. HOLDER, JR., ATTORNEY GENERAL,1


                                                             Respondent.


Appearing for Petitioner:       Jennifer Oltarsh, Oltarsh & Associates, P.C., New York, NY

Appearing for Respondent:       Jem Sponzo, Office of Immigration Litigation, United States
                                Department of Justice, Washington D.C.

       Petition for review of an order of the Board of Immigration Appeals (“BIA”).


       1
         Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.

       Petitioner Rodwell Poole (“petitioner” or “Poole”) files this petition for review of a
September 16, 2008 decision and order of the Board of Immigration Appeals (“BIA”) that
dismissed his claim of derivative United States citizenship. The BIA issued its decision and
order on remand from the Second Circuit, which previously found Poole’s petition for review
time-barred except with respect to his claim of derivative citizenship. See Poole v. Mukasey,
522 F.3d 259 (2d Cir. 2008).

        Petitioner argues that the BIA incorrectly held that it does not have the power to grant
derivative citizenship nunc pro tunc. Even assuming arguendo that the BIA does have this power,
however, petitioner has presented no evidence that the delay in processing his mother’s
naturalization application was “untoward” or that his mother took any action to expedite the
application in light of petitioner’s age. See also Calix-Chavarria v. Att’y General, 182 Fed.
Appx. 72, 76 (3d Cir. 2006) (noting circumstances in which it might be appropriate to grant
derivative citizenship nunc pro tunc).2 We therefore DENY the petition for review. The
previously granted stay of deportation is VACATED.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




       2
          The government has presented a naturalization application that purports to establish that
petitioner’s mother applied for naturalization after petitioner’s eighteenth birthday, making him
ineligible for derivative citizenship even were the BIA to possess nunc pro tunc power to grant it.
As the naturalization application is not in the administrative record, we do not consider it. See 8
U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is based.”).

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