Kranwinkel v. Attorney General of the United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1850
___________
JOSE MIGUEL KRANWINKEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A017-519-505)
Immigration Judge: Honorable Quynh V. Bain
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 4, 2013
Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges
(Opinion filed: November 5, 2013)
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OPINION
___________
PER CURIAM
Petitioner Jose Miguel Kranwinkel seeks review of a final order of removal issued
by the Board of Immigration Appeals (BIA). For the reasons detailed below, we will
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deny his petition for review.
Kranwinkel was born in the Dominican Republic. In 1967, when Kranwinkel was
five, he was admitted to the United States as a lawful permanent resident. He then lived
in New York with his father, who was not a citizen of the United States. His biological
mother, who was never married to his father, remained in the Dominican Republic. In
1968, his father married Celeste Kranwinkel, who became a naturalized United States
citizen in 1973.
Beginning in 1982, Kranwinkel was convicted of a series of criminal offenses,
culminating in a conviction in 1997 for conspiracy to distribute and possession with
intent to distribute cocaine in violation of 21 U.S.C. § 846. In 2008, the Department of
Homeland Security charged him with being removable under (a) 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien who had been convicted of an aggravated felony, and (b)
§ 1227(a)(2)(B)(i), as an alien who had been convicted of a controlled-substance offense.
Before an Immigration Judge (IJ), Kranwinkel acknowledged that his criminal
conviction qualified as an aggravated felony and a controlled-substance offense under
§ 1227(a)(2), but claimed that he had obtained citizenship through Celeste and was thus
not removable. The IJ, after repeatedly continuing the hearing at Kranwinkel’s request to
allow him to seek evidence to support his claim, ruled that Kranwinkel had presented
insufficient evidence to establish that Celeste had adopted him, and thus ordered him
removed. Kranwinkel appealed to the BIA, which dismissed the appeal, holding that
Kranwinkel’s evidence “show[ed] an informal agreement between [Kranwinkel’s] mother
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and stepmother, [but] . . . not evidence of a prior legal adoption.”1 Kranwinkel then filed
a timely petition for review.
Because Kranwinkel is removable by virtue of having committed a controlled-
substance offense that is also an aggravated felony, we have jurisdiction over only
questions of law and constitutional claims. See § 1252(a)(2)(C), (D). The issue of
derivative citizenship, the only matter Kranwinkel raises, is a purely legal question of
statutory interpretation, which we are thus empowered to review. See Morgan v. Att’y
Gen., 432 F.3d 226, 229 (3d Cir. 2005). In considering the issue, we must determine
whether there is a genuine issue of material fact; if there is no genuine issue of material
fact, we will decide the nationality claim, but if there is, we must transfer the matter to a
district court. See 8 U.S.C. § 1252(b)(5).
It is undisputed that Kranwinkel was born abroad. Therefore, he bears the
ultimate burden of establishing his citizenship, with all doubts resolved against him.
Bagot v. Ashcroft, 398 F.3d 252, 256-57 (3d Cir. 2005). As noted above, Kranwinkel
seeks to establish citizenship through Celeste by showing that she adopted him. Thus,
while two different versions of former 8 U.S.C. § 1432(a) apply here (the 1952 version,
which was in effect when Celeste was naturalized, and the 1978 version, which was in
effect when Kranwinkel turned 182), see Bagot, 398 F.3d at 257 n.3 (stating that courts
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While Kranwinkel also raised a claim under the Convention Against Torture before the
agency, he explicitly abandoned the claim in his appellate brief.
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Section 1432 was repealed by the Child Citizenship Act of 2000 (CCA), Pub. L. No.
106–395, which took effect on February 27, 2001. See 8 U.S.C. § 1431. The CCA is not
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should apply version of statute in effect at certain specified times), we will focus on the
1978 version, which is the only version that permits adopted children to derive
citizenship. Compare § 1432(b) (1952), with § 1432(b) (1978). (Neither version extends
derivative-citizenship rights to stepchildren. See United States v. Sarwari, 669 F.3d 401,
408-09 (4th Cir. 2012).) However, only legally recognized adoptions qualify under the
statute: “[F]or an adoption to be valid for immigration purposes, it first must be shown
that the adoption conformed with and is recognized by the applicable law of the
jurisdiction where it occurred.” In re Khatoon, 19 I. & N. Dec. 153, 154 (BIA 1984); see
also Kaho v. Ilchert, 765 F.2d 877, 881 (9th Cir. 1985).
Here, Kranwinkel did not produce any official records establishing that he had
been adopted. Rather, he provided present-day affidavits from his biological mother,
stating that she “g[a]ve” Kranwinkel to his father and stepmother when he was five years
old, and his stepmother, stating that since 1968, Kranwinkel had been in her custody as if
he were her biological son, and that she “adopted” him. These affidavits do not refer to
any legal or administrative proceeding; rather, they plainly show, as the BIA found, that
there was an informal agreement between Kranwinkel’s biological mother and Celeste
that the latter would raise him. This does not qualify as a legal adoption under the laws
of New York (where Kranwinkel resided with Celeste). See N.Y. Domestic Relations
Law §§ 114, 116. Kranwinkel suggests that this type of informal arrangement constitutes
a legal adoption in the Dominican Republic, but he has produced no evidence to that
retroactive, and thus does not apply here. See Morgan, 432 F.3d at 230 n.1.
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effect, and the burden was on him to do so. See Abdille v. Ashcroft, 242 F.3d 477, 490-
91 (3d Cir. 2001). His mere assertion, like his stepmother’s conclusory use of the legal
term “adopt,” does not suffice to create a dispute of fact. See, e.g., Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009). Therefore, Kranwinkel
has failed to present evidence to establish that his stepmother effectuated a legally
recognized adoption, which is fatal to his claim of derivative citizenship under § 1432.3
Accordingly, we will deny the petition for review.
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It appears that Kranwinkel is also unable to satisfy the other requirements of
§ 1432(a)(3), which is the only subsection of § 1432(a) that he has relied on here. See
Catwell v. Att’y Gen., 623 F.3d 199, 210 (3d Cir. 2010). However, in denying
Kranwinkel’s claim, the BIA did not rely on these deficiencies, and we are limited to
reviewing the BIA’s actual reasoning. See Li v. Att’y Gen., 400 F.3d 157, 163 (3d Cir.
2005).
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