     Case: 09-60470     Document: 00511078287          Page: 1    Date Filed: 04/13/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 13, 2010
                                     No. 09-60470
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

KENRICK CICERO, also known as Kenrick Albert Cicero,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A035 205 085


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Kenrick Cicero petitions for review of the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s
finding that he did not obtain derivative citizenship as a result of his father’s
naturalization. A nationality claim is a question of law that we review de novo.
Marquez-Marquez v. Gonzales, 455 F.3d 548, 554 (5th Cir. 2006). “Petitioner has
the burden of proving that he qualifies for naturalization, and he must do so in
the face of the Supreme Court’s mandate that we resolve all doubts in favor of

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60470     Document: 00511078287 Page: 2      Date Filed: 04/13/2010
                                  No. 09-60470

the United States and against those seeking citizenship.” Bustamante-Barrera
v. Gonzales, 447 F.3d 388, 394-95 (5th Cir. 2006).
      Relying on the provisions of former 8 U.S.C. § 1432, Cicero argues that he
was in the custody of his father in 1980 when his father became a naturalized
citizen. Former section 1432 requires in relevant part that the child of divorced
parents, such as Cicero, have been in the sole legal custody of the naturalized
parent. See Bustamante-Barrera, 447 F.3d at 395-96.
      Cicero’s parents’ divorce decree awarded custody of Cicero to his mother.
Although Cicero argues that other evidence shows that his parents agreed that
he would be in his father’s custody, there is no evidence that his father ever
obtained the required sole legal custody of him. See Bustamante-Barrera, 447
F.3d at 395-96; see also Nehme v. I.N.S., 252 F.3d 415, 426 (5th Cir.
2001)(interpreting phrase “legal separation” in the same statute). As Cicero has
not shown that he was in the sole legal custody of his father, he has not shown
that he obtained derivative citizenship under § 1432. See Bustamante-Barrera,
447 F.3d at 395-96.
      Cicero’s petition for review is DENIED. Cicero’s motions for appointment
of counsel and for release on bond pending the disposition of his petition for
review also are DENIED.




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