17-379
Persaud v. Sessions

                                   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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of March, two thousand eighteen.

PRESENT:              JOSÉ A. CABRANES,
                      SUSAN L. CARNEY,
                             Circuit Judges,
                      VALERIE E. CAPRONI,
                             District Judge.


BHISHAM PERSAUD, AKA BHISAHM PERSAUD,

                              Petitioner,                      17-379

                              v.

JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,

                              Respondent.



FOR PETITIONER:                                         Thomas V. Massucci, New York, NY.

FOR RESPONDENT:                                         Chad A. Reader, Principal Deputy Assistant
                                                        Attorney General; Katherine A. Clark, Senior
                                                        Litigation Counsel; Nancy Kwang Canter,
                                                        Trial Attorney, Office of Immigration

 Judge Valerie E. Caproni, of the United States District Court for the Southern District of New York,
sitting by designation.
                                                         Litigation, United States Department of
                                                         Justice, Washington, DC.

        Petition for review of an order of the Board of Immigration Appeals.

        UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED.

        Petitioner Bhisham Persaud seeks review of a January 13, 2017, decision of the BIA
affirming a September 30, 2015, decision of an Immigration Judge (“IJ”) ordering his removal to
Guyana. In re Bhisham Persaud, No. A041 926 549 (B.I.A. Jan. 13, 2017), aff’g No. A041 926 549
(Immig. Ct. N.Y. City Sept. 30, 2015). We assume the parties’ familiarity with the underlying facts
and procedural history in this case.

        We retain jurisdiction to review Persaud’s citizenship claim despite his aggravated felony
conviction underlying his removal order. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil v. Sessions, 851 F.3d
184, 186 & n.1 (2d Cir. 2017). We review the question of derivative citizenship de novo. 8 U.S.C.
§ 1252(b)(5)(A); Gil, 851 F.3d at 186.

        Persaud’s claim to derivative citizenship is governed by the provision in effect at the time he
turned eighteen. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). This provision, former 8
U.S.C. § 1432(a), provides, in pertinent part, that “[a] child born outside of the United States of alien
parents . . . becomes a citizen of the United States upon . . . [t]he naturalization of both parents; . . .
while such child is under the age of eighteen years; . . . and [s]uch child is residing in the United
States pursuant to a lawful admission for permanent residence at the time of the naturalization of
the parent last naturalized.” Langhorne v. Ashcroft, 377 F.3d 175, 177-78 (2d Cir. 2004) (alternations
omitted) (quoting 8 U.S.C. § 1432 (repealed by Child Citizenship Act of 2000, Title I, § 103(a), 114
Stat. 1632)).

        Persaud concedes that he does not meet all the above requirements because his father was
naturalized after he turned eighteen. Instead, he relies on Poole v. Mukasey, in which we remanded to
the agency to consider whether there was a “basis for relieving Poole of the requirement that his
mother was naturalized prior to his eighteenth birthday” given that “[s]he applied for citizenship
when he was 16” and that “[t]he record provide[d] no indication why the Government took two
years to process her application.” 522 F.3d 259, 265 (2d Cir. 2008).

        As the Government argues, the Supreme Court’s decision in INS v. Pangilinan likely
precludes both federal courts and the agency from granting citizenship on an equitable basis where
the alien has not fulfilled the statutory requirements for citizenship. 486 U.S. 875 (1988). The
Supreme Court reversed an equitable grant of naturalization and held that persons may only obtain
citizenship under the conditions prescribed by Congress. Id. at 883-84; see also Hizam v. Kerry, 747
F.3d 102, 110 (2d Cir. 2014) (“Courts cannot grant citizenship through their equitable powers.”).



                                                     2
         Even assuming that we or the agency have the ability to grant derivative citizenship nunc pro
tunc, Persaud has not established that such relief is warranted in this case, because he has not shown
“affirmative misconduct” in the processing of his application. INS v. Miranda, 459 U.S. 14, 17 (1982).
To the contrary, the record reflects that the agency’s delay was partially attributable to Persaud’s
father’s failure to disclose a traffic offense on his naturalization application and the time it took for
him to obtain documentation to resolve the issue. See id. at 18 (“The only indication of negligence is
the length of time that the INS took to process respondent’s application. Although the time was
indeed long, we cannot say in the absence of evidence to the contrary that the delay was
unwarranted.”).

                                           CONCLUSION

       We have considered Persaud’s remaining arguments and find them to be without merit.
Accordingly, the petition for review is DENIED, and the stay of removal previously granted is
VACATED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




                                                   3
