 10-1264
 Henry v. Quarantillo

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
 of March, two thousand eleven.

 Present:
          ROBERT A. KATZMANN,
          REENA RAGGI,
          RAYMOND J. LOHIER, JR.,
                      Circuit Judges,
 __________________________________________________

 LEROY ANTHONY HENRY, A# A-19-409-012,

            Plaintiff-Appellant,

                   v.                                                   No. 10-1264

 ANDREA QUARANTILLO, District Director, New York
 District Office of the U.S. Citizenship & Immigration Services,
 ROBERT P. WEIMANN, Chief, Administrative Appeals
 Office, U.S. Citizenship and Immigration Services,
 U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

          Defendants-Appellees.
 __________________________________________________

 For Plaintiff-Appellant:                 SCOTT E. BRATTON, Margaret Wong & Associates Co.,
                                          LPA, Cleveland, Ohio.
For Defendants-Appellees:                    MARGARET M. KOLBE, Assistant United States
                                             Attorney (Varuni Nelson and Scott Dunn, Assistant
                                             United States Attorneys, on the brief), for Loretta E.
                                             Lynch, United States Attorney for the Eastern District
                                             of New York, Brooklyn, N.Y.


        Appeal from the United States District Court for the Eastern District of New York

(Trager, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Plaintiff-Appellant Leroy Henry appeals from the February 2, 2010 order of the district

court granting the defendants’ motion for summary judgment dismissing the complaint. On

appeal, Henry argues that the district court erred in granting summary judgment on the ground

that Henry failed to demonstrate that he derived citizenship through his father’s 1972

naturalization pursuant to 8 U.S.C. § 1432(a)(3). We assume the parties’ familiarity with the

facts and procedural history of this case.

        As an initial matter, we assume for purposes of this appeal that Henry has satisfied the

requirements of 8 U.S.C. § 1503(a) and, accordingly, that we have jurisdiction over the action.

We review the district court’s grant of summary judgment de novo. See, e.g., Roe v. City of

Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). “It is beyond cavil that [we] may affirm the

judgment of the district court on any ground appearing in the record.” Shumway v. United

Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997).

        Henry claims that he became a citizen of the United States through his father’s 1972

naturalization pursuant to section 321 of the Immigration and Nationality Act, the former 8




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U.S.C. § 1432.1 Section 1432(a) provided that a child born outside of the United States to 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 . . . and if . . .

[s]uch naturalization takes place while such child is under the age of eighteen years.” 8 U.S.C.

§ 1432(a)(3), (4) (1999). Under § 1432, “derivative citizenship is automatic; that is, when

certain conditions exist, a child becomes a U.S. citizen even though neither parent, nor the child,

has requested it and regardless of whether any of them actually desires it.” Lewis v. Gonzales,

481 F.3d 125, 131 (2d Cir. 2007) (per curiam). We have held that “§ 1432(a)(3) requires a

formal act which, under the laws of the state or nation having jurisdiction of the marriage, alters

the marital relationship either by terminating the marriage (as by divorce), or by mandating or

recognizing the separate existence of the marital parties.” Brissett v. Ashcroft, 363 F.3d 130, 134

(2d Cir. 2004).

        Here, there is no dispute that Henry’s parents have never been married. Henry

nevertheless argues that his parents were legally separated under Jamaican law prior to his

eighteenth birthday. He presents as evidence an order of the Supreme Court of Judicature of

Jamaica, High Court Civil Division, dated July 29, 2008 (the “2008 Order”), which provides in

pertinent part that Henry’s parents “were common law spouses for the period 1953-1966” and

“are separated and having been so separated from and since 1966.” App’x 216. The 2008

Order, however, does not purport to apply retroactively, or nunc pro tunc, as of 1966. Nor does

it purport to effect a legal separation of Henry’s parents. Henry indeed relies upon a letter of


        1
        Section 1432 was repealed by the Child Citizenship Act of 2000 (“CCA”), Pub. L. No.
106-395, § 103, 114 Stat. 1631, 1632. The CCA does not apply retroactively, see Drakes v.
Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003) (per curiam), and thus is inapplicable here.

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Deborah Dowding of Chambers, Bunny & Steer, which acknowledges that “[Jamaican] courts

can not issue a decree of judicial separation,” but can issue a declaration, based upon evidence,

of the date of “the inception of the union” and “the date of separation which is a question of

fact.” Id. at 219 (emphasis added). Dowding’s letter therefore suggests that the 2008 Order

declares that Henry’s parents were separated as a factual matter only. Accordingly, Henry has

not borne his burden of demonstrating a “legal separation” of his parents prior to his eighteenth

birthday, as required by 8 U.S.C. § 1432(a).

       We conclude that the district court did not err in granting summary judgment dismissing

the complaint on the ground that Henry failed to establish derivative citizenship pursuant to 8

U.S.C. § 1432. We have considered Henry’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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