                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 20 2015

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



                            FOR THE NINTH CIRCUIT


HECTOR RODRIGO SOTO,                             No. 14-55270

               Petitioner - Appellant,           D.C. Nos.    8:13-cv-01167-R
                                                              8:89-cr-00031-R-1
 v.

UNITED STATES OF AMERICA; et al.,                MEMORANDUM*

               Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding.

                             Submitted May 13, 2015**

Before:        LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.

      Hector Rodrigo Soto appeals pro se from the district court’s denial of his

“Petition for Common Law Writ of Audita Querela, Prohibition, Mandamus,

Coram Nobis/Vobis, for Bail on Petitioner’s own Recognizance [without surety]


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Soto’s request for oral
argument is denied.
and for Other Extraordinary Relief by a Person in Federal Custody as May be

Required as a Matter of Law.” We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. United States v. Gamboa, 608 F.3d 492, 494 (9th Cir. 2010)

(reviewing de novo the denial of audita querela); Matus-Leva v. United States, 287

F.3d 758, 760 (9th Cir. 2002) (reviewing de novo the denial of coram nobis);

Independence Min. Co., Inc. v. Babitt, 105 F.3d 502, 505 (9th Cir. 1997) (whether

the elements of the mandamus test are satisfied is a question of law reviewed de

novo); Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (reviewing

de novo the denial of habeas). We may affirm on any ground supported by the

record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.

      The district court did not err in concluding that Soto is not a United States

citizen where he alleged he did not take an oath of citizenship due to confinement

to a military base while in the United States Air Force. See 8 U.S.C. § 1448(a)

(requiring the taking of an oath of allegiance prior to being admitted to

citizenship), see also Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 939-940 (9th Cir.

2004) (service in the military, and the taking of a military oath, does not

automatically confer citizenship status on an alien).

      The district court did not err in concluding that Soto’s claim of ineffective

assistance of counsel fails. Soto cannot show prejudice from the alleged


                                           2                                   14-55270
ineffective assistance, because he is not a citizen. See Strickland v. Washington,

466 U.S. 668, 692 (1984) (requiring prejudice for a showing of ineffective

assistance of counsel in the criminal context); Iturribarria v. INS, 321 F.3d 889,

899-900 (9th Cir. 2003) (requiring prejudice for a showing of ineffective assistance

in the immigration context). Even considering his claim of derivative citizenship,

this claim fails because he was not under age 16 in 1976, when he contends his

parents naturalized. See INA § 321 (1976) (requiring a child born outside the

United States of alien parents to be under the age of 16 when both parents

naturalize, in order to automatically acquire citizenship), see also Minasyan v.

Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005) (the court analyzes a derivative

citizenship claim under the provision in effect at the time the parent naturalized).

Soto’s request for remand to the district court for an evidentiary hearing

concerning his claim to citizenship is therefore denied.

      We lack jurisdiction to consider Soto’s challenge to the immigration detainer

as unlawfully preventing his release from Bureau of Prisons custody to a halfway

house, as he is no longer in Bureau of Prisons custody and is now in immigration

detention, making this claim moot. See NASD Dispute Resolution, Inc. v. Judicial

Council of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007) (a claim is moot on appeal “if

no live controversy remains at the time the court of appeals hears the case . . . the


                                           3                                     14-55270
test for whether such a controversy exists is whether the appellate court can give

the appellant any effective relief in the event that it decides the matter on the merits

in his favor” (internal citations and quotation marks omitted)). Our denial of his

habeas challenge to the detainer as moot is without prejudice to the filing of a new

petition in district court seeking any relief related to his immigration detention.

      To the extent Soto sets forth a request in his opening brief for the

appointment of counsel in proceedings before this court or the district court, we

deny that request.

      Soto’s August 21, 2014, emergency motion for a stay of removal is denied

without prejudice to filing in the appropriate jurisdiction a timely petition for

review of a final order of removal and seeking a stay of removal in connection with

that petition for review.

      AFFIRMED.




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