     16-3013
     Hammond v. Sessions
                                                                                   BIA
                                                                           A037 215 537
                           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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 29th day of January, two thousand eighteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            REENA RAGGI,
10            SUSAN L. CARNEY,
11                 Circuit Judges.
12   _____________________________________
13
14   MICHAEL NOEL ANTHONY HAMMOND,
15            Petitioner,
16
17                    v.                                         16-3013
18                                                               NAC
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Michael Noel Anthony Hammond, pro
25                                    se.
26
27   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
28                                    Attorney General; Stephen J.
29                                    Flynn, Assistant Director; Robert
30                                    Michael Stalzer, Trial Attorney,
31                                    Office of Immigration Litigation,
32                                    United States Department of
33                                    Justice, Washington, DC.
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 Michael Noel Anthony Hammond, a native and

6    citizen of Jamaica, seeks review of a July 25, 2016

7    decision of the BIA denying his June 2016 motion to

8    reconsider his 2003 removal order.   In re Michael Noel

9    Anthony Hammond, No. A037 215 537 (B.I.A. July 25, 2016).

10   We assume the parties’ familiarity with the underlying

11   facts and procedural history in this case.

12       A motion to reconsider must be filed within 30 days of

13   the challenged order.   8 U.S.C. § 1229a(c)(6)(A)-(B); 8

14   C.F.R. § 1003.2(b).   It is undisputed that Hammond’s June

15   2016 motion to reconsider was untimely because his removal

16   order became final in 2003, 13 years earlier.   8 U.S.C.

17   § 1229a(c)(6)(B). Here, reconsideration was available only

18   under the BIA’s sua sponte authority.   8 C.F.R. §

19   1003.2(a).   Despite this procedural posture, we retain

20   jurisdiction to review Hammond’s U.S. citizenship claim.

21   Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010).     We

                                   2
1    review the derivative citizenship claim de novo, deferring

2    to the BIA’s reasonable interpretation of ambiguous

3    provisions of the Immigration and Nationality Act (“INA”).

4    Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004); see

5    also Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S.

6    837, 843 (1984).

7        In determining whether Hammond derived citizenship

8    through his mother’s naturalization, we look to the law in

9    effect at the time Hammond claims he fulfilled the last

10   requirement for derivative citizenship.   Bueno Gil v.

11   Sessions, 851 F.3d 184, 186 (2d Cir. 2017).   In 1987, when

12   Hammond’s mother naturalized, the law governing derivative

13   citizenship provided in relevant part:

14       A child born outside of the United States of alien
15       parents ... becomes a citizen of the United States
16       upon . . . [t]he naturalization of the parent having
17       legal custody of the child when there has been a
18       legal separation of the parents . . . if . . . [s]uch
19       naturalization takes place while such child is under
20       the age of eighteen years.
21
22   8 U.S.C. § 1432(a) (1987), repealed by Child Citizenship

23   Act of 2000, Pub. L. 106–395, § 103, 114 Stat. 1631, 1632

24   (2000).




                                  3
1           The only issue in this case is whether Hammond’s parents

2    were legally separated in 1987, when his mother naturalized.

3    See Brissett, 363 F.3d at 132.                  Legal separation under

4    § 1432(a)(3) requires more than a de facto separation between

5    married parents: it “requires a formal act which, under the

6    laws of the state or nation having jurisdiction of the

7    marriage,      alters      the    marital    relationship              either     by

8    terminating the marriage (as by divorce) or by mandating or

9    recognizing the separate existence of the marital parties.”

10   Id. at 134.

11          Hammond argues that his parents were legally separated

12   under Jamaica’s Matrimonial Causes Act.                     See Matrimonial

13   Causes Act (Jamaica) (Jan. 6, 1989).                      As the Government

14   argues, the Matrimonial Causes Act did not take effect until

15   1989,    and   thus   it     cannot   provide       a    basis       for   a   legal

16   separation pre-dating Hammond’s mother’s naturalization in

17   1987    or   Hammond’s     18th   birthday     in       1988.        Furthermore,

18   Hammond has not raised a genuine issue of material fact as to

19   whether      his   parents    took    formal    action          to    have     their

20   separation recognized under the Act or any other Jamaican

21   law.    We thus uphold the BIA’s conclusion that Hammond did

                                           4
1    not meet § 1432(a)(3)’s legal separation requirement and so

2    did not derive U.S. citizenship when his mother naturalized.

3        For the foregoing reasons, the petition for review is

4    DENIED.   It is further ORDERED that Hammond’s motion to

5    proceed in forma pauperis is DENIED as moot.     Any pending

6    request for oral argument in this petition is DENIED in

7    accordance with Federal Rule of Appellate Procedure 34(a)(2),

8    and Second Circuit Local Rule 34.1(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk




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