Moreira v. Sessions , 681 F. App'x 61 ( 2017 )

16-743
Moreira v. Sessions
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
24th day of February, two thousand seventeen.
Present: ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________________________
ALLAN ROBERTO MOREIRA,
Petitioner,
v. 16-743
JEFF SESSIONS, United States Attorney General,
Respondent.1
_____________________________________________________
Appearing for Petitioner: H. Raymond Fasano, Youman, Madeo & Fasano, LLP, New York,
NY.
Appearing for Respondent: Benjamin C. Mizer, Principal Deputy Assistant Attorney General;
Papu Sandhu, Acting Assistant Director; Elizabeth K. Fitzgerald-
Sambou, Trial Attorney, Office of Immigration Litigation, United
States Department of Justice, Washington, DC.
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Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Jeff Sessions is
automatically substituted for former Attorney General Loretta E. Lynch as Respondent.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is DENIED.
Petitioner Allan Roberto Moreira, a native and citizen of Ecuador, seeks review of a
February 26, 2016, decision of the BIA, affirming a November 6, 2015, decision of an
Immigration Judge (“IJ”) ordering Moreira removed to Ecuador. In re Allan Roberto Moreira,
No. A076 094 837 (B.I.A. Feb. 26, 2016), aff’g No. A076 094 837 (Immig. Ct. Batavia Nov. 6,
2015). We assume the parties’ familiarity with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented
by the BIA. See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006). Moreira raises only
one issue: whether he derived citizenship from his father under 8 U.S.C. § 1431(a). We review
this derivative citizenship claim de novo. Morales-Santana v. Lynch, 804 F.3d 520, 525 (2d Cir.
2015); see also Ashton v. Gonzales, 431 F.3d 95, 96–97 (2d Cir. 2005) (derivative citizenship
claim reviewable despite jurisdictional limitation of 8 U.S.C. § 1252(a)(2)(C)).
Derivative citizenship is governed by the statute in effect at the time a petitioner claims to
have fulfilled the last requirement for derivative citizenship. Ashton, 431 F.3d at 97. Moreira’s
citizenship claim is thus governed by 8 U.S.C. § 1431(a), which allows a child to derive
citizenship from a parent who naturalizes provided that certain conditions are met. The parties
dispute only whether Moreira met the requirement that lawful permanent residence status be
obtained before the child turns 18. We conclude that he did not.
“[W]e begin with the language of the statute,” and construe the text according to its
“plain meaning.” Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). Section 1431(a)
provides as follows:
A child born outside of the United States automatically becomes a citizen of the
United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States,
whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical
custody of the citizen parent pursuant to a lawful admission for
permanent residence.
8 U.S.C. § 1431(a). Accordingly, as the statute explicitly provides, a child must fulfill all of these
conditions to derive citizenship. Moreira did not meet these requirements. Although his father
naturalized in 2003, when Moreira was 14, Moreira did not have lawful permanent resident
status at that time or at any time while he was under 18. According to the plain meaning of
Section 1431(a), a child can only derive citizenship while under 18. 8 U.S.C. § 1431(a)(2); see
also Ashton, 431 F.3d at 98-99 (addressing former statute and requiring child to have met all
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requirements before turning 18); Langhorne v. Ashcroft, 377 F.3d 175, 181 (2d Cir. 2004)
(same).
Contrary to Moreira’s reading of the statute, a “lawful admission for permanent
residence” is a “term of art.” Nwozuzu, 726 F.3d at 327-28 (emphasis omitted); see 8 U.S.C. §
1101(a)(20). A comparison of Section 1431(a) with the former derivative citizenship statute
supports the conclusion that a pending application for lawful permanent resident status is
insufficient. The former derivative citizenship statute provided that a child could derive
citizenship by either having lawful permanent resident status or by “begin[ing] to reside
permanently” in the United States following the custodial parent’s naturalization. Nwozuzu, 726
F.3d at 327-29 (emphasis omitted). The fact that Congress omitted the “reside permanently”
provision—a requirement which could be fulfilled by merely applying to adjust status, even if
the application was not granted before the child turned 18—supports reading Section 1431(a)(3)
to require an admission for lawful permanent residence while under age 18. See id. at 334
(holding that petitioner derived citizenship under Section 1432(a) because his application to
adjust status, filed after his parents naturalized and while he was still 17, was “an objective and
official manifestation of his intent to reside permanently in the United States.”). Moreira did not
become a permanent resident until November 2006, two months after his eighteenth birthday.
Thus, he did not derive citizenship under Section 1431(a).
Because the statutory language is clear, we need not examine the legislative history.
Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331 (2d Cir. 2007). Further,
the statements in the legislative history on which Moreira relies discuss the benefits of automatic
acquisition of citizenship as opposed to the former certificate of citizenship application process;
they do not address the statute’s lawful permanent residence requirement and do not indicate that
Congress intended for children who had not attained permanent resident status by age 18 to
derive citizenship. See, e.g., Adopted Orphans Citizenship Act and Anti-Atrocity Alien
Deportation Act: Hearing on H.R. 2883 and H.R. 3058 Before the Subcomm. on Immigr. &
Claims of the H. Comm on the Judiciary, 106th Cong. 1-2, 2000 WL 194371 (2000) (statement
of Representative Lamar Smith, Chairman, H. Subcomm. on Immigr. & Claims).
We have considered the remainder of Moreira’s arguments and find them to be without
merit. Accordingly, for the foregoing reasons, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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