         10-454-ag
         Nanez Holguin v. Holder
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A044 464 204


                                   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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22nd day of March, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       ______________________________________
12
13       LUIS FERNANDO NANEZ HOLGUIN,
14                Petitioner,
15
16                                                              10-454-ag
17                           v.                                 NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                    Alexander Arandia, Forest Hills, New
26                                          York.
27
28       FOR RESPONDENT:                    Tony West, Assistant Attorney
29                                          General; Emily Anne Radford,
30                                          Assistant Director; Craig A. Newell,
31                                          Jr., Trial Attorney, Office of
32                                          Immigration Litigation, Civil
33                                          Division, United States Department
34                                          of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner, Luis Fernando Nanez Holguin, a native and

 6   citizen of Colombia, seeks review of a January 13, 2010

 7   decision of the BIA affirming the October 22, 2009 decision

 8   of Immigration Judge (“IJ”) Roger Sagerman, finding him

 9   removable as an aggravated felon, denying relief from

10   removal, and concluding that he was not a derivative

11   citizen.     In re Nanez Holguin, No. A044 464 204 (B.I.A. Jan.

12   13, 2010), aff’g No. A044 464 204 (Immig. Ct. N.Y. City Oct.

13   22, 2009).    We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we review the

16   IJ’s decision as the final agency determination.     See Shunfu

17   Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).     The

18   applicable standards of review are well-established.       See

19   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

20   562 F.3d 510, 513 (2d Cir. 2009).

21       Because Nanez Holguin does not challenge the agency’s

22   findings that he was convicted of an aggravated felony or

23   that he did not establish his eligibility for relief from


                                     2
 1   removal, we review only the agency’s determination that

 2   Nanez Holguin is not entitled to derivative citizenship.

 3   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

 4   n.7 (2d Cir. 2005).

 5       Because Nanez Holguin was more than eighteen years of

 6   age at the time the Child Citizenship Act (“CCA”) took

 7   effect in February 2001, and because the CCA does not apply

 8   retroactively, Nanez Holguin is subject to the derivative

 9   citizenship statute as written prior to the CCA, namely

10   Immigration and Nationality Act (“INA”) § 321(a).   See

11   Langhorne v. Ashcroft, 377 F.3d 175, 178-79 (2d Cir. 2004).

12   In relevant part, INA § 321(a) provided that “[a] child born

13   outside of the United States of alien parents . . . becomes

14   a citizen of the United States upon . . . [t]he

15   naturalization of the parent having legal custody of the

16   child when there has been a legal separation of the parents

17   . . . if [that] naturalization takes place while such child

18   is under the age of eighteen years . . . [and] is residing

19   in the United States pursuant to a lawful admission for

20   permanent residence.”   8 U.S.C. § 1432(a), repealed by Child

21   Citizenship Act of 2000, Title I, § 103(a), 114 Stat. 1632;

22   Langhorne, 377 F.3d at 177-78.

23


                                   3
 1       Although Nanez Holguin claims derivative citizenship

 2   under § 321(a)(3), alleging that his parents had a de facto

 3   legal separation and that he was in the legal custody of his

 4   father at the time that his father naturalized in 1995, he

 5   does not allege that his parents undertook any formal act

 6   that altered their marital relationship.     See Brissett v.

 7   Ashcroft, 363 F.3d 130, 132 (2d Cir. 2004) (holding that INA

 8   § 321’s requirement of legal separation “is satisfied only

 9   by a formal act which, under the laws of the state or nation

10   having jurisdiction of the marriage, alters the marital

11   relationship either by terminating the marriage (as by

12   divorce), or by mandating or recognizing the separate

13   existence of the marital parties”).   Thus, his parents were

14   not legally separated for purposes of former INA § 321 and

15   he did not acquire derivative citizenship.     See id. at 133-

16   37; see also Lewis v. Gonzales, 481 F.3d 125, 131 (2d Cir.

17   2007).

18       Although Nanez Holguin contends that the formal legal

19   separation requirement infringes on his parents’ First

20   Amendment rights to freely practice their Roman Catholic

21   religion, which does not recognize legal separations, he

22   does not have standing to raise a claim of a violation of

23   his parents’ constitutional rights, and his naturalization


                                  4
 1   was not dependent on his parents obtaining a legal

 2   separation, as his father could have submitted a

 3   naturalization petition on his behalf while he was a minor.

 4   See Nehme v. INS, 252 F.3d 415, 430 n.18 (2d Cir. 2001).

 5       For the foregoing reasons, the petition for review is

 6   DENIED.   As we have completed our review, any stay of

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot.    Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




                                    5
