     Case: 11-60856       Document: 00512256302         Page: 1     Date Filed: 05/29/2013




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

                                                                            FILED
                                                                           May 29, 2013
                                     No. 11-60856
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ASBERT FITZGERALD JOSEPH, also known as Joseph Albert, also known as
Joseph Asbert, also known as Joseph Oskar Oskar,

                                                  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. A036 805 976


                         ON PETITION FOR REHEARING


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       The Petition for Rehearing is GRANTED. We withdraw the prior opinion,
2013 WL 135514 (Jan. 10, 2013), and substitute the following opinion.
       Asbert Fitzgerald Joseph, a native and citizen of Saint Vincent and the
Grenadines, petitions this court for review of an order from the Board of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-60856

Immigration Appeals (BIA) denying his motion to reopen and reconsider. He
maintains that he derived United States citizenship through his mother, alleging
that at the time his mother became a United States citizen, she had sole legal
custody of him and was legally separated from his father. Because the question
of Joseph’s citizenship is an essential jurisdictional fact on which no court has
previously passed judgment, we review it de novo. Duarte-Ceri v. Holder, 630
F.3d 83, 87 (2d Cir. 2010) (reviewing citizenship claim raised in petition for
review from the BIA’s refusal to reopen removal proceedings sua sponte because
“[a]n assertion of U.S. ‘citizenship is . . . a denial of an essential jurisdictional
fact’ in a deportation proceeding” (quoting Ng Fung Ho v. White, 259 U.S. 276,
284 (1922)); see also Marquez-Marquez v. Gonzalez, 455 F.3d 548, 554 (5th Cir.
2006) (holding that nationality claims are reviewed de novo). If a petitioner’s
citizenship claim presents a genuine issue of material fact, we transfer the
proceeding to the district court; if not, we decide the claim ourselves. 8 U.S.C.
§ 1252(b)(5); see also Lopez v. Holder, 563 F.3d 107, 110 (5th Cir. 2009). Joseph
must prove his citizenship claim by a preponderance of the evidence, Ayton v.
Holder, 686 F.3d 331, 335 (5th Cir. 2012), and “must do so in the face of the
Supreme Court’s mandate that we resolve all doubts ‘in favor of the United
States and against’ those seeking citizenship.” Bustamante-Barrera v. Gonzalez,
447 F.3d 388, 394-95 (5th Cir. 2006) (quoting Berenyi v. Dist. Dir., INS, 385 U.S.
630, 637 (1967)).
      Joseph claims that he derived United States citizenship pursuant to 8
U.S.C. § 1432(a)(3), which provided, in relevant part, that a child born outside
the United States of alien parents became a United States citizen upon the
“naturalization of the parent having legal custody of the child when there has
been a legal separation of the parents,” provided that certain other conditions
were also met. 8 U.S.C. § 1432(a)(3) (repealed 2000). The government contends
that Joseph’s citizenship claim fails because at the time his mother naturalized



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                                       No. 11-60856

in October of 1988, she was not legally separated from Joseph’s father.1 The
record reveals that in January of 1988, Joseph’s father filed a complaint in New
York state court seeking a divorce from Joseph’s mother.                     At some time
thereafter, the court entered a default judgment granting the divorce and giving
Joseph’s mother legal custody of him. Joseph’s mother subsequently filed a
motion to vacate the judgment of divorce, which was granted by an order dated
May 24, 1988.
       Joseph maintains that although a New York state court judge signed the
order vacating his parents divorce in May of 1988, the court did not enter final
judgment until 2009. As a result, claims Joseph, his parents remained legally
separated when his mother naturalized in October of 1988. The law in New
York, however, is that entry of judgment is not required for a judge’s order in a
divorce proceeding to become effective as between the spouses. See, e.g., Van
Pelt v. Van Pelt, 568 N.Y.S.2d 160, 161 (N.Y. App. Div. 1991) (holding that
husband’s marriage to second wife, which occurred after judge issued order
granting divorce from first wife but before court entered final judgment, was
nonetheless valid because entry of judgment “constituted nothing more than a
mere formality or ministerial act”); see also Flythe v. Astrue, No. 10 Civ. 9069
(NM), 2012 WL 38927, at *2 (S.D.N.Y. Jan. 6, 2012) (collecting cases); cf. Musso
v. Ostashko, 468 F.3d 99, 107 (2d Cir. 2006). Accordingly, Joseph’s assertion
that his parents were legally separated when his mother naturalized is without
merit and his citizenship claim fails as a matter of law.
       Joseph has not otherwise established that the BIA abused its discretion
in denying his motion to reopen. We review the denial of motions to reopen and
reconsider “under a highly deferential abuse-of-discretion standard.” Zhao v.


       1
         Under the law in effect at the time Joseph claims to have derived citizenship, a child
in the custody of both parents derived citizenship only if both parents naturalized. See 8
U.S.C. § 1432 (repealed 2000). Joseph has not alleged that his father ever became a United
States citizen.

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                                   No. 11-60856

Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s ruling will stand “so long
as it is not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result of
any perceptible rational approach.” Id. at 304 (internal citations omitted).
There is no dispute that Joseph’s motion to reopen and reconsider was filed more
than 90 days after the BIA dismissed his appeal in November 2010. As a result,
his motion was untimely filed. 8 U.S.C. § 1229a(c)(6)(B), (7)(C)(i); 8 C.F.R.
§ 1003.2(b)(2), (c)(2).
      With the benefit of liberal construction, Joseph also argues that the BIA
should have tolled the time for filing his motion to reopen and reconsider
because his counsel rendered ineffective assistance. This argument amounts to
the contention that the BIA should have exercised its discretion to reopen or
reconsider the removal proceeding sua sponte. See Ramos-Bonilla v. Mukasey,
543 F.3d 216, 219-20 (5th Cir. 2008). We lack jurisdiction to review the BIA’s
decision declining to do so. See id.
      Accordingly, Joseph’s petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction.




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