                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MIGUEL ANGEL ROMO-JIMENEZ,                       No. 11-73647

              Petitioner,                        Agency No. A024-235-086

  v.
                                                 MEMORANDUM*
LORETTA E. LYNCH,** Attorney
General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted June 3, 2015***
                             San Francisco, California

Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.

       Miguel Angel Romo-Jimenez, on November 30, 2011, petitioned for review

of the Board of Immigration Appeals decision denying derivative citizenship

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
           Loretta E. Lynch is substituted for Eric H. Holder, Jr. as Attorney
General. Fed. R. App. P. 43(c)(2).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
through his mother, Maria Jimenez, a naturalized citizen. On August 27, 2013, we

transferred the case to the United States District Court for an evidentiary hearing to

determine who had legal custody of Romo-Jimenez while he was incarcerated as a

minor with the California Youth Authority. On November 6, 2014, the district

court adopted the magistrate’s determination that Romo-Jimenez “was removed

from his mother’s custody and control by [] August 29, 1995,” and, “[u]nder

California law, she no longer had legal custody of [Romo-Jimenez] while he was

incarcerated in the California Youth Authority.”

      While the parties dispute what standard of review we should accord the

district court’s determination, under either standard—de novo or clearly

erroneous—Romo-Jimenez has failed to establish eligibility for derivative

citizenship.

      The statutory language relevant in this case, 8 U.S.C. § 1432(a), states that

“[a] child born outside of the United States of alien parents . . . becomes a citizen

of the United States upon . . . [t]he naturalization of the parent having legal custody

of the child when there has been a legal separation of the parents”; the child “is

under the age of eighteen years”; and the child “resid[es] in the United States

pursuant to a lawful admission for permanent residence.” 8 U.S.C. § 1432(a)

(repealed 2000). Romo-Jimenez must establish all three elements to automatically


                                           2
derive citizenship. The only disputed issue is whether during the relevant time

frame (the date of his mother’s naturalization until Romo-Jimenez’s eighteenth

birthday) he was in his mother’s or the state’s “legal custody” within the meaning

of the statute.

       “[W]e look to the law of California—the state with jurisdiction over [Romo-

Jimenez’s custody]—when deciding whether [Ms. Jimenez had legal custody of

her son].” Minasyan v. Gonzales, 401 F.3d 1069, 1077 (9th Cir. 2005). Under

California law, legal custody is “the right and the responsibility to make the

decisions relating to the health, education, and welfare of a child.” Cal. Fam. Code

§§ 3003, 3006. Pursuant to the August 29, 1995, Juvenile Court minute order,

Romo-Jimenez was “removed from the custody and control of [his] parent,” and

“[c]ommitted to the California Youth Authority . . . .” The order provided that the

Probation Officer could “authorize such medical, surgical, dental or other remedial

care by a licensed practitioner as . . . [it] appears necessary.”

       Romo-Jimenez contends that his mother at least shared legal custody with

the California Youth Authority. But California law holds that “custody awarded

by the juvenile court to [a probation department] is the minor’s legal custody.” In

re Nathan W., 205 Cal. App. 3d 1496, 1500 (1988) (first emphasis added); see also

In re Grimmer, 259 Cal. App. 2d 840, 844 (1968) (“We conclude that the juvenile


                                            3
court orders removing custody from the parents and awarding it to the probation

officer for foster home placement ‘legally deprived’ the mothers of custody.”).

Thus, Romo-Jimenez has failed to establish that under California law Ms. Jimenez

had legal custody of him, shared or otherwise, at the time of her naturalization,

because he was a ward of the State and incarcerated with the California Youth

Authority during the relevant time frame.

      Accordingly, the district court’s findings are AFFIRMED and Romo-

Jimenez’s petition is DENIED.




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