     07-3691-ag (L), 08-3776-ag (Con)
     Gordon v. Holder
                                                                                                                           BIA
                                                                                                                   A34 155 714



                                     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 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 OF 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 P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New
     York, on the 5 th day of March, two thousand and ten.

     PRESENT:          BARRINGTON D. PARKER,
                       PETER W. HALL,
                       GERARD E. LYNCH,
                                                            Circuit Judges.
     --------------------------------------------------------------------x
     TROY ANTHONY FRANCIS GORDON,

                                                                 Petitioner,
               -v.-                                                                                      No. 07-3691-ag (L),
                                                                                                         08-3776-ag (Con)
     ERIC H. HOLDER, JR.,

                                                            Respondent.
     -------------------------------------------------------------------x


     Appearing for the Petitioner:                     H. RAYMOND FASANO , Madeo & Fasano, New York, New
                                                       York.

     Appearing for the Respondent:                     ANDREW B. INSENGA , (Tony West, William C. Peachey, on
                                                       the brief), Trial Attorney, Office of Immigration Litigation,
                                                       United States Department of Justice, Washington, D.C.



                                                                     1
       Petitions from two decisions of the Board of Immigration Appeals. UPON DUE

CONSIDERATION it is hereby ORDERED, ADJUDGED, AND DECREED that the

petitions for review are DISMISSED.

       Petitioner Troy Anthony Francis Gordon, a native and citizen of Jamaica, petitions for

review of a July 30, 2007 order of the BIA, denying his motion to reopen. The BIA found that

Gordon was not entitled to reopening because he had no colorable claim to United States

citizenship on the basis of derivative citizenship and had shown no prejudice resulting from any

putative ineffective assistance of counsel. In re Troy Anthony Francis Gordon, No. A 34 155 714

(B.I.A. Jul 30, 2007). Gordon also petitions for review of a June 30, 2008 order of the BIA that

denied Gordon’s motion to reopen, in which he had argued that a putative change in the law

entitled him to United States citizenship. In re Troy Anthony Francis Gordon, No. A 34 155 714

(B.I.A. Jun 30, 2008).

       Gordon was ordered removed in abstentia from the United States on December 4, 1991

under former section 241(a)(11) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §

1251(a)(11) (1989) as an alien convicted of a controlled substance violation. His application for

waiver of deportation was deemed abandoned, and over nearly two decades he has filed multiple

motions to reopen and appeals to the BIA. In the first of the two motions to reopen under

consideration here, Gordon claimed, inter alia, that he derived citizenship from his parents.

Prior to our considering the first petition, Gordon filed to the BIA a second motion to reopen

asserting there had been a change in law, specifically this court’s disposition in Poole v.

Mukasey, 522 F.3d 259 (2d Cir. 2008). We stayed briefing on the first petition, and after the BIA



                                                 2
denied Gordon’s second motion to reopen, we consolidated the two. We assume the parties’

familiarity with the underlying facts and procedural history in this case.

       Gordon seeks in part to have this court review the BIA’s exercise of its authority under 8

C.F.R. § 1003.2(a) to reopen sua sponte a case in which it has rendered a decision. It is settled

law that courts lack jurisdiction to consider the BIA’s wholly discretionary authority under 8

C.F.R. § 1003.2(a). See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Except to the extent

discussed below, we are without jurisdiction in these two matters and the petitions will be

dismissed.

       Our lack of jurisdiction to review the BIA’s discretionary decision does not foreclose this

court’s jurisdiction to consider the legal question of whether petitioner is a citizen of the United

States. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). “[I]f a petitioner claims to be a

national of the United States and the court of appeals finds from the pleadings and the affidavits

that no genuine issue of material fact about the petitioner’s nationality is presented, the court

shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A). If a genuine question of material

fact does arise, the Court “shall transfer proceedings to the district court of the United States for

the judicial district in which the petitioner resides for a new hearing on the nationality claim and

a decision on that claim . . ..” See 8 U.S.C. § 1252(b)(5)(B). In the alternative, in considering a

claim to derivative citizenship that was already presented to the BIA, we retain the authority to

remand that question to the BIA for reconsideration of what relief might be available to the

petitioner. See Poole, 522 F.3d at 266.




                                                  3
        We consider a claim to United States citizenship on appeal from the BIA using the same

standard as that applies to deciding a motion for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure. See Agosto v. INS. 436 U.S. 748, 754 (1978). “Accordingly, the

government, as the party seeking what amounts to summary judgment, ‘bears the burden of

establishing that no genuine issue of material fact exists and that the undisputed facts establish

[its] right to judgment as a matter of law.’” Joseph v. Att’y Gen. of the U.S., 421 F.3d 224, 230

(3d Cir. 2005) (quoting Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995)).

“[T]he non-moving party must offer sufficient proof to allow a reasonable factfinder to decide in

its favor.” Mandell v. County of Suffolk & John Gallagher, 316 F.3d 368, 377 (2d Cir. 2003).

        Former section 321(a) of the INA states that a minor born outside the United States is

entitled to United States citizenship upon “the naturalization of both parents . . . if . . . [s]uch

naturalization takes place 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 . . ..” 8 U.S.C. § 1432(a). Petitioner

argues that this court’s decision in Poole has established an exception whereby derivative

citizenship should be granted when the last parent to file for citizenship submitted an N-400

Application for Naturalization (“N-400”) before the child’s eighteenth birthday, but, because of

inexplicable administrative delay in processing the application, the parent was naturalized after

the child’s eighteenth birthday. Poole, 522 F.3d at 265. The holding in Poole, however, is

inapplicable to petitioner’s case.




                                                    4
       In Poole, the BIA had not considered petitioner’s claim to derivative citizenship, but

rather dismissed his appeal as untimely filed. Poole, 522 F.3d at 262. We remanded petitioner’s

derivative citizenship claim for the BIA to consider whether a two-year delay in processing

petitioner’s mother’s N-400, should be taken into account as “some basis for relieving

[petitioner] of the requirement that his mother [be] naturalized prior to his eighteenth birthday.”

Id. at 265. We noted that Poole’s mother applied for citizenship fifteen months before his

eighteenth birthday. Id. at 266. “The record provides no indication why the Government took

two years to process her application. A more expeditious processing, if completed within two

years, would have provided [petitioner] with derivative citizenship.” Id. at 265.1

       Petitioner was born October 21, 1962. Petitioner’s father was naturalized on May 5, 1977,

when petitioner was fourteen. Petitioner’s mother was naturalized on December 4, 1981, a year

and two months after petitioner’s eighteenth birthday. Construing the facts in the light most

favorable to the petitioner, the earliest date on which petitioner’s mother could be found to have

applied for citizenship is July 2, 1980, one hundred and eleven days before petitioner’s

eighteenth birthday, and one year, five months and two days before the processing of her N-400

was complete and she became a citizen.

       The BIA, in its order of June 2008, has already considered Gordon’s arguments and has



       1
          Petitioner also relies upon Lewis v. McElroy, 294 Fed. Appx. 637 (2d Cir. 2008), a
summary order in which we remanded the petitioner’s claim of derivative citizenship to the BIA
for further consideration because the petitioner’s mother’s citizenship application was approved
one month prior to petitioner’s eighteenth birthday, but where naturalization did not occur until
four months later. While illustrative of how Poole has been applied, “[r]ulings by summary
order do not have precedential effect.” Local Rule 32.1.1(a).

                                                 5
correctly distinguished the instant facts from those in Poole. As the BIA noted, Poole’s mother’s

application was filed fifteen months before his eighteenth birthday, both demonstrating her due

diligence in pursuing citizenship in a timely way to benefit her son and making it more likely that

Poole was disadvantaged by an unreasonable delay on the agency’s part in processing the

application. Here Gordon’s mother’s application was filed less than four months before he

turned eighteen. We therefore cannot say here, as we did in Poole, that a “more expeditious

processing, if completed within two years, would have provided the petitioner with derivative

citizenship.” Poole, 522 F.3d at 265. Even had the INS taken only four months to process

petitioner’s mother’s N-400, petitioner would still be ineligible for derivative citizenship.

       Also in contradistinction to Poole, where the BIA had not considered the petitioner’s

claim to derivative citizenship at all, here the BIA considered, and rejected, Gordon’s claim that

he was entitled to derivative citizenship through his mother. In rejecting that claim the BIA

found no evidence to suggest that the four-month delay at issue was “untoward.” Gordon has

offered no rationale for our rejecting the BIA’s conclusion, and there is no basis in the record or

in common experience to suggest that four months is an unreasonably long time for processing a

naturalization application.2 While the jurisprudence of this Circuit permits, under certain limited

circumstances, a remand to the BIA for reexamination of “what relief, if any, might be accorded .

. . with respect to [a] claim to derivative citizenship,” this is not one of those cases. Poole, 522

F.3d at 266.


       2
         Lewis is even less helpful to Gordon than Poole, since Lewis’s mother’s application was
approved one month before his eighteenth birthday, and her swearing-in ceremony was delayed
for no apparent reason. Gordon’s mother’s N-400 application for citizenship, in contrast, was
not approved until well after his eighteenth birthday had passed.

                                                  6
       Gordon having failed to adduce evidence suggesting that the BIA overlooked some factor

bearing on the timing of his mother becoming a United States citizen, and the BIA having

provided all the consideration that was due to Gordon’s arguments, Gordon has no cognizable

claim to United States citizenship under former section 321(a) of the INA. Having resolved that

claim, we lack jurisdiction to consider any further the BIA’s exercise of its sua sponte authority

under 8 C.F.R. § 1003.2(a). The petition for review is hereby DISMISSED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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