                                                                             F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                           January 23, 2007
                             FO R T H E T E N T H C IR C U IT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

    NICKLIN M E M UCUUTHI,

              Petitioner,

     v.                                                       No. 06-9533
                                                           (No. A42-414-872 )
    ALBERTO R. GONZALES, Attorney                        ( Petition for Review )
    General,

              Respondent.



                             O R D E R A N D JU D G M E N T *


Before K E L L Y , L U C E R O , and H A R T Z, Circuit Judges.




          Petitioner Nicklin M e M ucuuthi is a native and citizen of Kenya. He was

admitted as a legal permanent resident of this country at New York, New York on

September 13, 1991. On June 28, 2005, he w as convicted in Colorado state court

of distribution of cocaine. Based on the evidence presented and on




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
M r. M ucuuthi’s admissions concerning the cocaine distribution conviction, an

immigration judge (IJ) ordered him removed to Kenya.

      At his hearing before the IJ, M r. M ucuuthi contended that he should not be

removed because he is a United States citizen. M r. M ucuuthi asserted citizenship

based on former section 321(a) of the Immigration and Nationality Act. That

statute provided that a child born outside the United States of alien parents could

acquire automatic, derivative United States citizenship upon fulfillment of the

follow ing conditions:

      (1) The naturalization of both parents; or
      (2) The naturalization of the surviving parent if one of the parents is
      deceased; or
      (3) The naturalization of the parent having legal custody of the child
      when there has been a legal separation of the parents or the
      naturalization of the mother if the child was born out of wedlock and
      the paternity of the child has not been established by legitimation;
      and if
      (4) Such naturalization takes place while such child is under the age
      of eighteen years; and
      (5) Such 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 under clause (1) of this subsection, or the
      parent naturalized under clause (2) or (3) of this subsection, or
      thereafter begins to reside permanently in the United States w hile
      under the age of eighteen years.

8 U.S.C. § 1432(a) (1999). 1


1
      Section 321 was repealed by the Child Citizenship Act of 2000, Pub.L. No.
106-395, 114 Stat. 1631, effective February 27, 2001. M organ v. Attorney
General, 432 F.3d 226, 230 n.1 (3d Cir. 2005). The new Act liberalized
                                                                    (continued...)

                                         -2-
      M r. M ucuuthi asserted that he met the requirements of § 321(a)(3), because

his father was a naturalized citizen and had legal custody of him and because his

parents were legally separated at the time of his father’s naturalization and before

M r. M ucuuthi turned eighteen. Grishon M ucuuthi Ngethe, M r. M ucuuthi’s father,

became a naturalized citizen of this country in February 1990. M r. M ucuuthi’s

mother w as not naturalized. The IJ found that there was “nothing in the record to

show that there was ever any legal separation of the parents, through divorce or

through any other method.” Admin. R. at 30. Therefore, M r. M ucuuthi could not

derive citizenship solely from his father’s naturalization. The Board of

Immigration Appeals (BIA), agreeing on this point, affirmed the IJ’s decision.

      The only issue before us in this petition for review is whether

M r. M ucuuthi proved that his parents w ere legally separated at the time of his

father’s naturalization. As M r. M ucuuthi was convicted of an aggravated felony,

we can review his petition only with respect to constitutional claims or questions

of law. Abiodun v. Gonzales, 461 F.3d 1210, 1215 (10th Cir. 2006); 8 U.S.C.

§ 1252(a)(2)(C), (D).




1
 (...continued)
automatic derivative citizenship for children by deleting the reference to legal
separation of the parents. See id. The Child Citizenship Act, however, does not
apply retroactively to M r. M ucuuthi, because the relevant events (his father’s
naturalization and his reaching eighteen years of age) occurred prior to the
effective date of the new Act. See id.

                                          -3-
      Our sister circuits have upheld the BIA’s interpretation of the phrase “legal

separation,” which requires a formal, legal act that alters the marital relationship.

See Afeta v. Gonzales, 467 F.3d 402, 406-07 (4th Cir. 2006) (collecting cases).

The agency’s reasonable interpretation of the statute it administers is entitled to

substantial deference. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

According the requisite deference to the BIA’s interpretation of the statute, and

after a careful review of the record, we affirm the BIA’s determination that

M r. M ucuuthi failed to establish the requisite legal separation.

      The petition for review is DENIED. M r. M ucuuthi’s motion to proceed in

form a pauperis is granted.




                                                      Entered for the Court


                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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