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

                                                                   FILED
                                                                 October 3, 2007

                                No. 06-60751                  Charles R. Fulbruge III
                              Summary Calendar                        Clerk


ALEXANDER PUENTES-BEJARANO

                                           Petitioner

v.

PETER D KEISLER, ACTING U S ATTORNEY GENERAL

                                           Respondent.


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A90 958 698


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*
      Alexander Puentes-Bejarano (Puentes) seeks review of the Board of
Immigration Appeals’ (BIA’s) order of removal. He argues that the BIA erred in
denying his nationality claim because he met all of the requirements for
citizenship under then applicable INA § 321, 8 U.S.C. § 1432 (repealed) and that,
as a consequence, he derived citizenship by operation of law via the
naturalization of his adoptive mother.

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-60751

      Section 321 is inapplicable on its face. The only subsection that could
possibly apply to Puentes is § 321(a)(3), under which he was required to
establish either (1) the naturalization of his adoptive mother and a legal
separation of his parents or (2) the naturalization of his adoptive mother and
that he was born out of wedlock with unestablished paternity. INA § 321(a)(3),
8 U.S.C. § 1432(a)(3)(repealed). As Puentes had only one adoptive parent, he
could not establish a legal separation of his adoptive parents. Nor did he
establish that he was born out of wedlock with unestablished paternity.
Therefore, Puentes failed to satisfy the requirements for derivative citizenship
under § 321(a)(3). The BIA did not err in denying his nationality claim.
      Equally without merit is Puentes’s claim that there are material fact
issues that require remand to the district court. His assertion that his potential
out-of-wedlock status and his paternity are at issue is not supported by the
record. He provides no evidence that he was born out of wedlock or that his
paternity was not established such that he could qualify for derivative
citizenship under former § 321(a)(3). See 8 U.S.C. § 1252(b)(4)(b) & (5)(A)-(B).
Additionally, Puentes concedes that there are no facts “at issue in the present
case” unless we find that such issues are in dispute, in which case we must
remand to the district court. He fails to explain which facts we might identify
as being in dispute.
      Puentes challenges the IJ’s determination that he did not fall within the
definition of “child” in 8 U.S.C. § 1101(c)(1) because his adoption did not take
place in the United States, but rather, occurred in Colombia. We agree with the
BIA that this contention need not be addressed, since Puentes cannot qualify for
derivative citizenship under 321(a)(3) as the child of a single adoptive parent, no
matter where he was adopted. Moreover, we do not review an IJ’s determination
if that determination did not impact the BIA’s decision. Efe v. Ashcroft, 293 F.3d
899, 903 (5th Cir. 2002).



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                                   No. 06-60751

      Puentes argues that the BIA’s interpretation of § 321 violates the equal
protection guarantee of the Constitution by treating differently adopted alien
children who have two parents and adopted children who have only one parent.
Under the applicable rational basis review, see De Fuentes v. Gonzales, 462 F.3d
498, 503 (5th Cir. 2006), the distinction here advances the interests of (1)
“ensuring that a child who becomes an American citizen has a real relationship
with a family unit, and with the United States, and is not a mere beneficiary of
a legal relationship created in a foreign court; and (2) deterring immigration
fraud by those who, without this restraint, could pose as adoptive parents and
fraudulently secure derivative citizenship for children by engaging in adoptions
in foreign courts.” Smart v. Ashcroft, 401 F.3d 119, 122 (2d Cir. 2005) (all
internal quotations omitted).       Both are legitimate government interests
sufficient   to   withstand   a   rational   basis   challenge.   See   e.g., id.;
Villanueva-Jurado v. INS, 482 F.2d 886, 887-88 (5th Cir. 1973); Hein v. INS, 456
F.2d 1239, 1240-41 (5th Cir. 1972). Puentes’s constitutional challenge to § 321
is without merit.
      Puentes also argues that the BIA’s interpretation of § 321 violates the
canons of statutory construction by raising “serious constitutional issues” that
could be avoided through alternative statutory interpretations. Here, there are
no applicable alternative statutory interpretations that apply; the plain
language of the statute excludes alien children of adoptive parents when the
children are not born out of wedlock or the adoptive parent is not legally
separated.
      PETITION DENIED.




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