                                                                            FILED
                             NOT FOR PUBLICATION                            MAR 01 2016

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



                              FOR THE NINTH CIRCUIT


MARVIN RAMON ECHEGOYEN,                          No. 14-70456

               Petitioner,                       Agency No. A043-136-795

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted February 24, 2016**

Before:        LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

      Marvin Ramon Echegoyen, a native and citizen of Nicaragua, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision determining that he was removable


          *
             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).
and denying cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252.

We review de novo questions of law. Coronado v. Holder, 759 F.3d 977, 982

(2014). We deny in part and grant in part the petition for review, and remand.

      To prevail on his claim to derivative U.S. citizenship, Echegoyen was

required to prove that “there has been a legal separation of the parents.” See 8

U.S.C. § 1432(a)(3) (1981). Because Echegoyen has failed to produce any

evidence that his parents were married, he has failed to raise a genuine issue of

material fact as to his citizenship and, accordingly, we conclude that petitioner has

not established his claim of derivative citizenship. See 8 U.S.C. § 1252(b)(5)(A)

(“If the petitioner claims to be a national of the United States and the court of

appeals finds from the pleadings and affidavits that no genuine issue of material

fact about the petitioner’s nationality is presented, the court shall decide the

nationality claim.”); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003)

(holding that a petitioner did not “enjoy derivative citizenship under . . . [8 U.S.C.

§ 1432(a)(3)] because his natural parents never married and thus could not legally

separate” (emphasis in original)).

      The BIA’s conclusion that Echegoyen is removable for having committed a

domestic violence offense was based on documentation of his 2004 battery

conviction, his admission that he had been convicted of “a domestic violence,”


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and his concession that he was removable. However, the record shows that

Echegoyen’s 2004 battery conviction was under Nevada Revised Statutes

§ 200.481, a general battery statute that does not include specific domestic violence

offenses. Because Echegoyen’s admissions and concessions concerning whether

he had been convicted of a domestic violence offense are contradicted by the

record, we remand to the agency with instructions to permit Echegoyen to

withdraw his pleading as to both grounds of removability. See Perez-Mejia v.

Holder, 663 F.3d 403, 416-17 (9th Cir. 2011) (this court may set aside an IJ

determination that rests on an alien’s erroneous concession).

      In light of this disposition, we do not reach petitioner’s remaining

contentions.

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part; and

REMANDED .




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