          Case: 16-16733   Date Filed: 06/16/2017   Page: 1 of 6


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-16733
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:15-cv-24288-KMM



FRANCO ARIEL SCIAMARELLI,

                                                          Plaintiff-Appellant,

                               versus

DISTRICT DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
FIELD OFFICE DIRECTOR, U.S. CITIZENSHIP & IMMIGRATION
SERVICES,
DIRECTOR, US CITIZENSHIP AND IMMIGRATION SERVICES,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
U.S. ATTORNEY GENERAL,

                                                       Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (June 16, 2017)
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Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.

PER CURIAM:

       Franco Sciamarelli filed a lawsuit seeking review of the denial of his

application for naturalization. See 8 U.S.C. § 1421(c) (permitting federal district

courts to review de novo the denial of an application for naturalization). The

defendants filed a motion to dismiss his complaint for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), which the district court granted. This is

Sciamarelli’s appeal.

       Sciamarelli, a citizen of Argentina, was lawfully admitted to the United

States under the visa waiver program in November 2000, but he remained in the

country beyond the period authorized. 1 In June 2001, when Sciamarelli was 17

years old, his stepfather, who had been admitted to the United States as a lawful

permanent resident, filed on Sciamarelli’s behalf a Form I-130 visa petition, which,

if approved, would have made him eligible to receive a visa. More than four years

later, on December 5, 2005, Customs and Immigration Services (CIS) approved

that petition and Sciamarelli received a visa.




       1
         Because this is an appeal from the district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6), the following facts are taken from Sciamarelli’s complaint, and we accept
those facts as true and construe them in the light most favorable to him. See Butler v. Sheriff of
Palm Beach Cty., 685 F.3d 1261, 1263 n.2 (11th Cir. 2012). Our review of the district court’s
judgment is de novo. Id. at 1265.
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      Sciamarelli’s stepfather was naturalized as a United States citizen on June

29, 2007, when Sciamarelli was 23 years old. Based on his stepfather’s

citizenship, Sciamarelli filed an “Application for Adjustment of Status” to lawful

permanent resident. CIS approved that application in March 2008. Having been

admitted as a permanent resident (which is a prerequisite to citizenship),

Sciamarelli filed an application for naturalization. CIS eventually denied his

application for naturalization, concluding that in 2008 it had erroneously granted

his application for adjustment of status to permanent resident. And because he was

not a lawful permanent resident, he did not meet all of the requirements for

citizenship and was not eligible for naturalization.

      Sciamarelli filed an administrative challenge to that denial, and CIS affirmed

its earlier decision, concluding that it should not have adjusted his status to lawful

permanent resident in 2008 because (1) he had not continuously maintained lawful

status in the United States since his arrival, and (2) he did not fall within the

exception to that requirement, which permits adjustment to permanent resident

status for aliens who have not maintained lawful status since entering the country

but who qualify as an “immediate relative” of a United States citizen.

      Under 8 U.S.C. § 1255(a), “[t]he status of an alien who was inspected and

admitted or paroled into the United States . . . may be adjusted by the Attorney

General . . . to that of an alien lawfully admitted for permanent residence” if he


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meets certain qualifications. Generally an alien may not be lawfully admitted for

permanent residence if he “has failed . . . to maintain continuously a lawful status

since ent[ering] the United States.” 8 U.S.C. § 1255(c)(2). One exception to that

rule provides that an alien who qualifies as an “immediate relative” of a United

States citizen may adjust his status to lawful permanent resident even if he has

failed to continuously maintain a lawful status. Id. “Immediate relatives” include

a citizen’s unmarried children if they are under the age of 21. See 8 U.S.C.

§ 1151(b)(2)(A)(i) (“The term ‘immediate relatives’ means the children, spouses,

and parents of a citizen of the United States . . . .”); 8 U.S.C. § 1101(b)(1)

(providing that the term “child” means certain people, including a stepchild, under

the age of 21).

        Sciamarelli concedes that he failed to continuously maintain a lawful status

since entering the United States. But he contends that he qualified as his

stepfather’s “immediate relative” when he filed his application for adjustment of

status to permanent resident in 2007, even though he was 23 years old at that time,

and as a result CIS lawfully adjusted his status and admitted him for permanent

residence in 2008. Whether Sciamarelli is correct turns on whether his age was

adjusted to under 21 when he sought to be admitted as a permanent resident in

2007.




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      8 U.S.C. § 1151(f) sets out special “[r]ules for determining whether certain

aliens are immediate relatives.” If a visa petition is filed by a child of a United

States citizen, then the child’s age “on the date on which the petition is filed”

governs whether that child meets the age requirement to classify as an “immediate

relative” of a United States citizen. 8 U.S.C. § 1151(f)(1). However, if a visa

petition is filed by a child of a lawfully admitted non-citizen parent, and if that

parent later becomes naturalized while the petition is pending, then determination

of whether the child qualifies as an “immediate relative” is made using the child’s

age “on the date of the parent’s naturalization.” 8 U.S.C. § 1151(f)(2).

      Sciamarelli contends that CIS, when it approved his application for

permanent residence, could have concluded that, under § 1151(f)(1), it was

permitted to adjust his age to account for the four years his Form I-130 visa

petition was pending. And, when those four years are subtracted from his age at

the time his stepfather was naturalized, his adjusted age was under 21, qualifying

him as an “immediate relative.” He argues that CIS could have approved his

application for adjustment of status to lawful permanent resident by finding that he

was his stepfather’s “immediate relative.”

      Sciamarelli was 23 and had no pending visa petition at the time his

stepfather was naturalized. Under those circumstances, CIS was not permitted to

adjust his age to under 21. For that reason, Sciamarelli was not the child of a


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United States citizen and did not qualify as his stepfather’s “immediate relative”

when CIS approved his application for adjustment of status to lawful permanent

resident. And because Sciamarelli did not qualify as an “immediate relative” of a

United States citizen and had not continuously maintained lawful status since

entering the country, he was not eligible to become a lawful permanent resident.2

As a result, Sciamarelli’s complaint failed to state a claim showing that he was

entitled to naturalization.

       AFFIRMED.




       2
          Sciamarelli alternatively points to § 1153(h)(1), which he contends permits his age to be
adjusted for purposes of his petition. That provision, however, is limited to determining the age
of a child in a specific visa preference category and does not adjust an alien’s age for “immediate
relative” purposes. See In re Daniel Edgar Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A.
2011) (“Section [1153](h)(1) . . . does not, however, apply to determinations of immediate
relative status. By its terms, [it] is limited to calculating the adjusted age of aliens in the 2A-
preference category and derivative beneficiaries.”).
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