     16-648-ag
     Salmon v. Sessions
                                                                                               BIA
                                                                                        Sagerman, IJ
                                                                                       A026 506 798


                               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
     ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 15th day of February, two thousand seventeen.
 4
 5   PRESENT: BARRINGTON D. PARKER,
 6            REENA RAGGI,
 7            CHRISTOPHER F. DRONEY,
 8                                Circuit Judges.
 9   RAPHAEL WILLESTLY SALMON,
10                                    Petitioner,
11
12                        v.                                               No. 16-648-ag
13
14   JEFF SESSIONS, UNITED STATES ATTORNEY
15   GENERAL,
16                                                 Respondent.*
17
18   FOR PETITIONER:                           Paul B. Grotas, Esq., New York, New York.
19
20   FOR RESPONDENT:                           Benjamin C. Mizer, Principal Deputy Assistant
21                                             Attorney General; Lindsay Glauner, Senior
22                                             Litigation Counsel; Sarah Byrd, Trial Attorney,
23                                             Office of Immigration Litigation, United States
24                                             Department of Justice, Washington, D.C.

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff
     Sessions is automatically substituted for former Attorney General Loretta E. Lynch as
     Respondent.

                                                  1
 1          UPON DUE CONSIDERATION of this petition for review of a February 22, 2016

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,

 3   AND DECREED that the petition for review is DENIED.

 4          Petitioner Raphael Willestly Salmon, a native and citizen of Jamaica, seeks review

 5   of the BIA’s affirmance of an Immigration Judge’s (“IJ”) decision denying Salmon’s

 6   motions to terminate or continue removal proceedings and ordering him removed to

 7   Jamaica. See In re Raphael Willestly Salmon, No. A026 506 798 (B.I.A. Feb. 22, 2016),

 8   aff’g No. A026 506 798 (Immig. Ct. Napanoch Sept. 28, 2015). Under the circumstances

 9   of this case, we review the IJ’s decision as supplemented by the BIA, see Yan Chen v.

10   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), applying well established standards of review,

11   see Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Morgan v. Gonzales, 445

12   F.3d 549, 551 (2d Cir. 2006). Salmon’s criminal convictions limit our jurisdiction to

13   “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(C), (D), and we,

14   therefore, address only whether Salmon can claim derivative citizenship and his due

15   process challenge to the denial of a continuance, see id. § 1252(a)(2)(D); Duarte-Ceri v.

16   Holder, 630 F.3d 83, 87 (2d Cir. 2010). In conducting our review, we assume the parties’

17   familiarity with the underlying facts and procedural history of this case, which we

18   reference only as necessary to explain our decision to deny the petition.

19   1.     Derivative Citizenship

20          Salmon argues that he could claim derivative citizenship from his mother, whose

21   denied naturalization application should be granted nunc pro tunc as of 2000, at which time

22   Salmon was under the age of 18 and, thus, eligible to derive citizenship under 8 U.S.C.


                                                  2
 1   § 1431(a).   Specifically, he asserts that, but for the United States Citizenship and

 2   Immigration Services’ (“USCIS”) failure properly to adjudicate his mother’s application,

 3   his mother would have naturalized before his eighteenth birthday.

 4          Section 1431(a) confers derivative citizenship on children who (1) have at least one

 5   parent who is a United States citizen (whether by birth or naturalization); (2) are under

 6   eighteen years of age; and (3) are “residing in the United States in the legal and physical

 7   custody of the citizen parent pursuant to a lawful admission for permanent residence.” 8

 8   U.S.C. § 1431(a); see Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003). Because

 9   Salmon’s mother has never naturalized, Salmon does not meet the first requirement for

10   derivative citizenship.

11          Insofar as Salmon urges otherwise based on USCIS’ delay in adjudicating his

12   mother’s application, he has failed to demonstrate undue delay violating due process or

13   agency error precluding him from obtaining derivative citizenship. Cf. Poole v. Mukasey,

14   522 F.3d 259, 265–66 (2d Cir. 2008); Xue Yong Zhang v. Holder, 617 F.3d 650, 665–66

15   (2d Cir. 2010) (explaining that nunc pro tunc relief is limited to exceptional circumstances

16   where alien is precluded from form of relief due to agency error). Thus, we decline to

17   remand pursuant to Poole v. Mukasey, 522 F.3d at 265. Indeed, the circumstances here

18   are distinguishable from those in Poole v. Mukasey insofar as Salmon’s mother’s

19   naturalization application was denied well before his eighteenth birthday. See id. at 261.

20   Moreover, Salmon’s mother’s challenge to the denial of her naturalization application

21   failed because “she did not properly exhaust her administrative remedies as required for




                                                  3
 1   district court review of the denial of her naturalization application.” Phillips v. Boente,

 2   No. 16-2339, 2017 WL 397898, at *1 (2d Cir. Feb. 1, 2017).

 3   2.    Denial of Continuance

 4         Salmon asserts that the agency violated due process by failing to consider his

 5   argument for a continuance pending adjudication of his mother’s challenge to denial of

 6   naturalization because her naturalization would allow him to derive citizenship. We are

 7   not persuaded. The agency acknowledged case law holding that delay by USCIS could

 8   provide a route for Salmon to derive citizenship, but ultimately concluded that the

 9   possibility of such relief here was speculative. See 8 C.F.R. § 1003.29 (providing that

10   agency “may grant a motion for continuance for good cause shown”). Salmon cannot

11   show prejudice stemming from the agency’s denial of a continuance because his mother’s

12   challenge to the denial of her naturalization petition failed. Phillips v. Boente, No.

13   16-2339, 2017 WL 397898, at *1; see Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d

14   Cir. 2008) (stating that petitioner must show prejudice to succeed on due process claim).

15         We have considered Salmon’s remaining arguments and conclude that they are

16   without merit. Accordingly, the petition for review is DENIED.

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




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