                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2006

Perez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3897




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Recommended Citation
"Perez v. Atty Gen USA" (2006). 2006 Decisions. Paper 1220.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1220


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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-3897
                                  ________________

                                 SANDY M. PEREZ,

                                           Petitioner
                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent

                      ____________________________________

                         On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A44 700 856
                                  on March 31, 2005
                    _______________________________________
                                    April 20, 2006

                      Submitted Under Third Circuit LAR 34.1(a)


        Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

                                (Filed: April 25, 2006)

                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Sandy M. Perez petitions for review of an order of the Board of Immigration

Appeals (BIA), which affirmed an Immigration Judge’s (IJ’s) order of removal to the
Dominican Republic. For the reasons that follow, we will deny the petition.1

       Perez argues first that he is a United States citizen, because his stepfather is a U.S.

citizen. His mother is a permanent resident. Perez’s argument fails for several reasons.

First, the law in effect when Perez was a minor required both parents to naturalize (or a

legal separation or death of the non-citizen parent). Jordon v. Ashcroft, 424 F.3d 320,

329 (3d Cir. 2005); Immigration and Nationality Act (INA) § 321(a) [8 U.S.C. § 1432(a)]

(repealed). Second, although Perez argues that under the Child Citizenship Act of 2000

(CCA) [8 U.S.C. § 1431(a)], he can derive citizenship when only one parent becomes a

U.S. citizen, this court has clearly held that the CCA does not operate retrospectively.

Because Perez was well over 18 when the CCA was enacted, he may not benefit from it.

Jordon, 424 F.3d at 328; Bagot v. Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005). Third,

even if the CCA was applicable, there is no evidence in the record that Perez’s stepfather

adopted him. We thus find that the Immigration Judge (IJ) properly found that Perez was

not a U.S. citizen.

       Perez next argues that the IJ erred in finding that his criminal conviction rendered

him removable, because he had a pending criminal appeal. As the Government points

out, Perez’s nunc pro tunc criminal appeal was not filed until December 8, 2004. Thus, at



  1
       Perez initiated these proceedings by filing a habeas corpus petition under 28
U.S.C. § 2241 in the United States District Court for the District of New Jersey. While
the petition was pending, the REAL ID Act of 2005, Pub L. No. 109-13, 119 Stat. 231,
took effect on May 11, 2005. Pursuant to § 106(c) of that act, the District Court
transferred the petition to this Court to be treated as a petition for review.
                                              2
the time of his last immigration hearing in October 2004, the conviction was final. If his

conviction were to be overturned on appeal, his remedy would be to file a motion to

reopen before the Board of Immigration Appeals.

       Perez also appears to argue that his Due Process rights were violated by the

immigration proceedings. Our review of the record does not reveal any Due Process

violations. For the foregoing reasons, we will deny the petition for review.
