         10-1166
         Leslie v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A044 845 427
                             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 “SUMMARY 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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       KERRY RONALD LESLIE, AKA
14       KERRY R. LESLIE, AKA KERRY LESLIE,
15                Petitioner,
16
17                          v.                                    10-1166
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               KERRY RONALD LESLIE, pro se, Batavia,
25                                     NY.
26
27       FOR RESPONDENT:               JESI J. CARLSON (Tony West, Assistant
28                                     Attorney General; Stephen J. Flynn,
29                                     Assistant Director; Karen Y.
30                                     Stewart, Attorney, on the brief),
31                                     Office of Immigration Litigation,
 1
 2                           United States Department of Justice,
 3                           Washington, D.C.
 4
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10       Petitioner Kerry Ronald Leslie, a native and citizen of

11   Jamaica, seeks review of the March 5, 2010, order of the BIA

12   affirming the January 4, 2010, decision of Immigration Judge

13   (“IJ”) Barbara A. Nelson, denying his motion to reopen.       In

14   re Kerry Ronald Leslie, No. A044 845 427 (B.I.A. Mar. 5,

15   2010), aff’g No. A044 845 427 (Immig. Ct. N.Y. City Jan. 4,

16   2010).   We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       I. Motion to Rescind

19       We review the denial of a motion to rescind an in

20   absentia removal order under the same abuse of discretion

21   standard applicable to motions to reopen.    See Alrefae v.

22   Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); Kaur v. BIA, 413

23   F.3d 232, 233 (2d Cir. 2005) (per curiam).    The agency’s

24   regulations provide that “[a]n order entered in absentia in


                                   2
 1   deportation proceedings may be rescinded only upon a motion

 2   to reopen filed . . . [w]ithin 180 days after the date of

 3   the order of deportation if the alien demonstrated that the

 4   failure to appear was because of exceptional circumstances

 5   beyond the control of the alien . . . or . . . [a]t any time

 6   if the alien demonstrates that he or she did not receive

 7   notice.”   8 C.F.R. § 1003.23(b)(4)(iii)(A)(1)-(2); see also

 8   8 U.S.C. § 1229a(b)(5)(C).

 9       Leslie’s motion to rescind based on exceptional

10   circumstances was indisputably untimely, as he filed it in

11   December 2009, well beyond 180 days after his July 2007 in

12   absentia removal order; and the agency reasonably found that

13   Leslie received notice of his July 2007 hearing.   Aside from

14   his conclusory assertion that he was not aware of the date

15   of his July 2007 hearing, Leslie does not present any

16   challenge to the agency’s finding that he did receive notice

17   of that hearing, and the record reveals that he was

18   personally served notice, orally and in writing, at a

19   hearing before the IJ in December 2006.   Accordingly, the

20   agency did not abuse its discretion in denying Leslie’s

21   motion to rescind his in absentia removal order.

22

                                   3
 1   II.   Sua Sponte Reopening & Derivative Citizenship

 2         In general, we lack jurisdiction to review a decision

 3   of the BIA not to reopen a case sua sponte pursuant to

 4   8 C.F.R. § 1003.2(a), because such a decision is “entirely

 5   discretionary.”     Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

 6   2006).     While we retain jurisdiction when the BIA declines

 7   to exercise its sua sponte authority based on a

 8   misperception of the law, see Mahmood v. Holder, 570 F.3d

 9   466, 469-71 (2d Cir. 2009), in the present case, the BIA

10   stated that it declined to exercise its sua sponte authority

11   because Leslie did not demonstrate an exceptional situation

12   warranting reopening.     Because Leslie did not present any

13   evidence supporting his claims of citizenship or eligibility

14   for cancellation of removal, the BIA’s decision to decline

15   to exercise its sua sponte authority was based on agency

16   regulations and BIA precedent, and not a misperception of

17   the law.

18         However, despite the lack of agency error, Leslie has

19   raised a non-frivolous claim of U.S. citizenship that merits

20   consideration.     Because the Executive Branch has “no

21   authority to remove citizens,” a claim of United States

22   citizenship is “a denial of an essential jurisdiction fact

                                     4
 1   in a deportation proceeding” that places the propriety of

 2   the entire proceeding into doubt until resolved.    Poole v.

 3   Mukasey, 522 F.3d 259, 264 (2d Cir. 2008).    Thus, the

 4   determination of whether Leslie can properly be removed

 5   pursuant to the agency’s decision declining to rescind

 6   Leslie’s in absentia removal order requires a determination

 7   as to whether Leslie is a U.S. citizen.

 8       Leslie’s mother’s affidavit asserts that Leslie derived

 9   U.S. citizenship either through his mother’s naturalization

10   in 2000, or through adoption by his U.S. citizen stepfather.

11   Because Leslie was born in September 1978, whether he

12   derived U.S. citizenship through his mother’s naturalization

13   is governed by former INA § 321(a). See Drakes v. Ashcroft,

14   323 F.3d 189, 190 (2d Cir. 2003).   That section provided, in

15   relevant part, that a child born outside the United States

16   of alien parents becomes a citizen following the

17   naturalization of one parent, if the other parent is

18   deceased and, relevant here, if the parent’s naturalization

19   takes place while the child is under 18 years of age.

20   Leslie states that his father was killed in 1994, and

21   Leslie’s mother advises that she submitted her application

22   for naturalization in April 1996, approximately five months

23   prior to Leslie’s eighteenth birthday.    She claims that a
                                   5
 1   delay in processing her citizenship application was caused

 2   by a failure of the former Immigration and Naturalization

 3   Service (“INS”).   However, there is no record evidence as to

 4   when the INS approved her application for naturalization,

 5   and multiple steps are required to achieve naturalization

 6   after an application is submitted.     The timing of several of

 7   those steps is dependent upon the applicant, not the

 8   government.   Accordingly, Leslie has not shown that there

 9   was any undue delay on the part of the INS in approving the

10   naturalization application that would allow him to derive

11   citizenship based on his mother’s naturalization, which

12   occurred after his eighteenth birthday.     Cf. Poole, 522 F.3d

13   at 265-66 (recognizing possible legal basis for relieving

14   petitioner of timing requirement for mother’s naturalization

15   where evidence showed that petitioner’s mother filed her

16   application for naturalization fifteen months prior to his

17   eighteenth birthday, and that the application was granted

18   two years after it was filed).

19       Furthermore, Leslie did not derive citizenship through

20   his U.S. citizen stepfather.     Leslie has submitted an

21   affidavit from his mother indicating that she married a U.S.

22   citizen, Donald Poe, in 1990, and that Leslie resided with

23   them after his father was killed, as well as a letter from
                                   6
 1   Poe stating that he adopted Leslie.    Leslie may have become

 2   a citizen on that basis only if: Poe adopted Leslie before

 3   Leslie’s sixteenth birthday; Leslie resided with Poe for at

 4   least two years prior to his eighteenth birthday; and a

 5   citizenship application was submitted based on the adoption

 6   before Leslie’s eighteenth birthday.    See Former 8 U.S.C.

 7   §§ 1101(b)(1)(E), (F), 1433(a), prior to amendment on Oct.

 8   30, 2000.   Because Leslie did not enter the United States

 9   and begin residing with his mother and Poe until December

10   1994, he did not live with Poe for the requisite two years

11   prior to his eighteenth birthday in September 1996.

12   Accordingly, even if Poe legally adopted Leslie before his

13   sixteenth birthday——as to which there is no conclusive

14   evidence——he did not acquire U.S. citizenship through that

15   adoption.

16       For the foregoing reasons, the petition for review is

17   DENIED, and Leslie’s pending motion for a stay of removal is

18   DISMISSED as moot.

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21




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