Christopher Alphonso Benjamin v. U.S. Attorney General , 682 F. App'x 725 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14974
Non-Argument Calendar
________________________
Agency No. A041-464-970
CHRISTOPHER ALPHONSO BENJAMIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 10, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Christopher Alphonso Benjamin, proceeding pro se, seeks review of the
Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration
Judge’s (“IJ”) order finding him removable and ineligible for derivative
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citizenship. On appeal, Benjamin argues that: (1) the BIA incorrectly determined
that he did not qualify for derivative citizenship; and (2) the BIA incorrectly
determined that he was removable for having been convicted of an aggravated
felony offense. After careful review, we deny the petition.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopts the IJ’s decision. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we will also review the
IJ’s decision to that extent. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350
(11th Cir. 2009). We review legal issues de novo, giving deference to the BIA’s
interpretation of the immigration laws and regulations. Tovar v. U.S. Att’y Gen.,
646 F.3d 1300, 1303 (11th Cir. 2011). We will defer to the BIA’s interpretation if
it is reasonable. Id. We will not defer to the BIA’s decision if it does not rely on
existing BIA or federal court precedent; rather, we view such decisions as
persuasive authority. Id. We will also defer to the BIA’s interpretation of an
ambiguous immigration statute as long as the interpretation is reasonable and does
not contradict the clear intent of Congress. Chevron U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842-44 (1984). We review de novo whether a prior
conviction qualifies as an aggravated felony. Accardo v. U.S. Att’y Gen., 634 F.3d
1333, 1335 (11th Cir. 2011). While we read briefs filed by pro se litigants
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liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
First, we are unpersuaded by Benjamin’s claim that the BIA incorrectly held
that he did not qualify for derivative citizenship. When an individual seeks to
derive citizenship by naturalization, the law in effect when the last material
condition (naturalization, age, residence) is met is generally controlling. In Re
Rodriguez-Tejedor, 23 I. & N. Dec. 153, 163 (BIA 2001). Under a former section
of the Immigration and Nationality Act (“INA”), a child born outside of the United
States of alien parents becomes a United States citizen upon the naturalization of
the mother if: (1) the child was born out of wedlock and the paternity of the child
has not been established by legitimation; (2) the naturalization takes place while
the child is unmarried and under the age of 18; and (3) the child is residing in the
United States pursuant to a lawful admission for permanent residence at the time of
the naturalization of the parent, or thereafter begins to reside permanently in the
United States while under the age of 18. 8 U.S.C. § 1432 (1994) (repealed by the
Child Citizenship Act of 2000, Pub. L. No. 106-395, § 103(a), 114 Stat. 1631,
1632). An applicant for naturalization is not a citizen until the applicant takes the
prescribed oath of allegiance in an administrative ceremony or in a ceremony
conducted by an appropriate court. 8 C.F.R. § 337.9(a).
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Here, the BIA correctly determined that Benjamin did not qualify for
derivative citizenship. Both parties agree that Benjamin was born in August 1979
and became a lawful resident in June 1989. According to the certificate attached to
Benjamin’s Blue Brief, his surviving parent, his mother, became a naturalized
citizen on May 5, 1999, after Benjamin turned 18. Therefore, Benjamin did not
meet the criteria for derivative citizenship under the former statute, 8 U.S.C. §
1432, which required him to be under the age of 18 when his mother took the oath
of citizenship and was naturalized. See In Re Rodriguez-Tejedor, 23 I. & N. Dec.
at 163; 8 U.S.C. § 1432 (1994); 8 C.F.R. § 337.9(a).
To the extent Benjamin claims he is entitled to citizenship because his
mother submitted her application before he turned 18, we disagree. While the
Child Status Protection Act (“CSPA”) provides age-out protection for derivative
child beneficiaries adversely affected by administrative delays in the adjudication
of immigrant petitions, it does not mention applications for derivative citizenship
through naturalization. See Tovar, 646 F.3d at 1304; 8 U.S.C. § 1151(f)(1); see
generally 8 U.S.C. §§ 1151, 1154. Just as the BIA has held that the CSPA does not
apply to cancellation of removal because it is not expressly listed in the statute, see
Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 833 (BIA 2012), the BIA in this
case reasonably determined that the CSPA does not freeze a child’s age for
purposes of parental applications for naturalization. See Tovar, 646 F.3d at 1303.
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The BIA also correctly held that it was without authority to use equitable estoppel
because no court has the power to confer citizenship in violation of the limitations
set out by Congress. See I.N.S. v. Pangilinan, 486 U.S. 875, 883-85 (1988).
Accordingly, the BIA correctly determined that Benjamin did not qualify for
derivative citizenship. 1
We also find no merit to Benjamin’s claim that the BIA incorrectly
determined that he was removable for having been convicted of an aggravated
felony offense. Although we lack jurisdiction to review final orders of removal
against aliens convicted of an aggravated felony, we have jurisdiction to review
constitutional claims or questions of law, including whether a specific conviction
constitutes an aggravated felony. 8 U.S.C. § 1252(a)(2)(C), (D).
The INA provides that “[a]ny alien who is convicted of an aggravated felony
at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA
defines an aggravated felony as, among other things, “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. §
1101(a)(43)(B). The term “drug trafficking crime” means any felony punishable
under the Controlled Substances Act (21 U.S.C. 801 et seq.). 18 U.S.C. §
1
As for Benjamin’s argument that the BIA erred by not responding to his motion to
terminate proceedings, the BIA expressly acknowledged the motion in its decision, and
effectively denied that motion and any other pending motions when it dismissed the appeal and
terminated his application.
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924(c)(2). Under the Controlled Substances Act, it is unlawful for any person
knowingly or intentionally to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance. 21 U.S.C. §
841(a)(1). The Controlled Substances Act defines “distribute” as “deliver,” and
“deliver” means “the actual, constructive, or attempted transfer of a controlled
substance.” Id. § 802(8), (11). The Controlled Substances Act classifies cocaine
as a controlled substance. Id. § 812 (Schedule II(a)(4)).
To determine whether an alien’s state court conviction constitutes an
aggravated felony under the INA, we use the categorical or modified categorical
approach. Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013).
Under the categorical approach, we must confine our consideration only to the fact
of conviction and the statutory definition of the offense, and ask only whether the
state offense “necessarily involves facts equating the generic federal offense.” Id.
(emphasis omitted). We must determine whether the least of the acts criminalized
by the state law would necessarily violate a federal statute. Id. at 1281.
An alien who is deportable is eligible for cancellation of removal and
adjustment of status, if the alien, in part, has not been convicted of any aggravated
felony. 8 U.S.C. § 1229b(a)(3), (b)(1)(C). An alien is permitted to voluntarily
depart the United States if the alien is not deportable for being convicted of an
aggravated felony. Id. § 1229c(a), (b)(1)(C). An alien is statutorily ineligible for
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adjustment of status if he is inadmissible for having committed a controlled
substance violation, and is not eligible for a waiver of this provision if the alien has
been convicted of an aggravated felony. Id. § 1182(a)(2)(A)(i)(II), (h).
Here, the BIA correctly held that Benjamin’s May 15, 2003 conviction for
attempted criminal sale of cocaine was a categorical aggravated felony. Benjamin
was convicted of attempted criminal sale of a controlled substance -- cocaine -- in
the third degree in violation of New York law. N.Y. Penal Law §§110 and
220.39(1). Under New York law, a person is guilty of criminal sale of a controlled
substance in the third degree when he knowingly and unlawfully sells a narcotic
drug. N.Y. Penal Law § 220.39(1). A person is guilty of an attempt to commit a
crime when, with intent to commit a crime, he engages in conduct which tends to
effect the commission of such crime. N.Y. Penal Law § 110.00.
To determine whether Benjamin’s New York conviction constitutes an
aggravated felony under the INA, we use the categorical approach, which asks
only whether the state offense necessarily involves facts equating to the generic
federal offense. See Donawa, 735 F.3d at 1280. It appears that the least of the acts
criminalized by N.Y. Penal Law §§ 110 and 220.39(1) -- the attempted sale of a
controlled substance -- would necessarily violate 21 U.S.C. § 841(a)(1) -- the
distribution of a controlled substance (which includes delivery or attempted
transfer of a controlled substance). See 21 U.S.C. §§ 802(8), (11), 841(a)(1);
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Donawa, 735 F.3d at 1281. Therefore, even if Benjamin did no more than offer or
attempt to sell cocaine, the state offense would be punishable as a federal felony,
thus rendering it an aggravated felony. See Pascual, 707 F.3d at 405. Because
Benjamin’s conviction for sale of cocaine qualifies as an aggravated felony, he is
subject to deportability. 8 U.S.C. § 1227(a)(2)(A)(iii).2
PETITION DENIED.
2
Benjamin also argues on appeal that the IJ erred by not advising him about his eligibility
for relief. However, the record shows that although Benjamin appeared pro se throughout the
proceedings, the IJ provided Benjamin with two continuances in order allow him to find counsel.
The IJ also provided a third continuance so that Benjamin could review the additional removal
charges lodged against him. In any event, the AJ was not required under the INA to provide
counsel nor required to inform Benjamin of defenses available to him. See 8 U.S.C. §§
1229a(b)(1), 1362. Thus, we find no merit to Benjamin’s argument.
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