     Case: 12-60100     Document: 00512018845         Page: 1     Date Filed: 10/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 12, 2012
                                     No. 12-60100
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

PETER ANTONIO SEALE,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A013 854 990


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Peter Antonio Seale, a native and citizen of Barbados, petitions this court
for review of a decision by the Board of Immigration Appeals (BIA) dismissing
his appeal from an Immigration Judge’s (IJ) order that he be removed as an
aggravated felon. Seale does not dispute that, if he is an alien, he is removable
by virtue of his Texas conviction of aggravated sexual assault. However, he
argues that his removal proceeding should have been terminated because he
automatically derived United States citizenship from his father, who was a

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 12-60100    Document: 00512018845      Page: 2    Date Filed: 10/12/2012

                                  No. 12-60100

naturalized United States citizen, and from his step-mother, who was born a
United States citizen.
      Although our jurisdiction to review a final order of removal entered
against an alien convicted an aggravated felony is limited, we may review our
own jurisdiction, constitutional claims, or questions of law.             8 U.S.C.
§ 1252(a)(2)(C), (a)(2)(D); see Marquez-Marquez v. Gonzales, 455 F.3d 548, 554
(5th Cir. 2006). A nationality claim is a question of law that we review de novo.
Marquez–Marquez, 455 F.3d at 554. If we determine “from the pleadings and
affidavits that no genuine issue of material fact about the petitioner’s nationality
is presented, [we will] decide the nationality claim.” § 1252(b)(5)(A).
      The provisions of the Child Citizenship Act of 2000, which currently
govern claims of derivative citizenship, do not apply in Seale’s case because he
was over the age of 18 when the Act took effect. See Marquez-Marquez, 455 F.3d
at 551 n.3. Seale’s claim must be decided under the immigration statutes in
effect at the time he allegedly fulfilled the last requirement for derivative
citizenship. See In re Nwozuzu, 24 I. & N. Dec. 609, 611, 616 n.13 (BIA 2008).
Former Immigration and nationality Act (INA) § 321, 8 U.S.C. § 1432, granted
derivative citizenship automatically to a child born outside the United States if,
following the death of one parent, the remaining parent became a naturalized
United States citizen while the child was under eighteen years of age and the
child lived in the United States as a legal permanent resident. Former INA
§ 322, 8 U.S.C. § 1433, provided a means by which a child born outside the
United States could obtain citizenship via adoption by a United States citizen.
However, Seale has presented no evidence to establish that his mother died, that
his father was naturalized, or that if such naturalization occurred it took place
when he was under the age of eighteen years old. Nor has Seale presented
evidence that his United States citizen step-mother adopted him.            Seale’s
unsupported assertions do not raise a genuine issue of material fact as to
whether he is a United States citizen.

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                                  No. 12-60100

      Seale also has raised a number of arguments for the first time in his
petition for review. He contends that his immigration proceedings should not
have been held in Houston, Texas, because he is from New York, New York. He
also contends that the IJ erroneously held him to the burden of proving his
derivative citizenship, failed to help him prove his citizenship by subpoenaing
the necessary evidence, failed to order the State Counsel for Offenders to
represent him, and imposed laws against him in violation of the ex post facto
clause. Because Seale failed to exhaust his administrative remedies as to those
issues, we lack jurisdiction to consider them. See Omari v. Holder, 562 F.3d 314,
321 (5th Cir. 2009).
      Seale has not established that the BIA erred in dismissing his appeal from
the IJ’s order of removal. His petition for review is DISMISSED IN PART for
lack of jurisdiction and DENIED IN PART. His motions to subpoena documents
and for the appointment of counsel are DENIED.




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