Bernardo Lloyd Callender v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-3218
___________
BERNARDO AGUSTIN LLOYD CALLENDER,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A031-158-553)
Immigration Judge: Nelson A. Vargas-Padilla
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on August 18, 2021
Before: GREENAWAY, JR., KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: November 24, 2021)
____________________________________
___________
OPINION*
___________
PER CURIAM
Bernardo Agustin Lloyd Callender petitions pro se for review of a final order of re-
moval. For the reasons that follow, we will deny the petition.
I.
Lloyd Callender is a citizen of Panama. Although Lloyd Callender and his family re-
sided in the Canal Zone in Panama when he was a child, he was born in a hospital in Pan-
ama outside of the Canal Zone, in 1967. Lloyd Callender’s parents were not married when
he was born but got married soon after. His father became a U.S. citizen in 1970 while he
was serving in the U.S. military.
Lloyd Callender came to the United States with his parents as a lawful permanent resi-
dent in 1971, when he was four years old. His parents physically separated after they
arrived in the United States. After the separation, Lloyd Callender lived with his father,
but there was no formal custody decree or legal separation in place. His parents legally
divorced in 1996, when he was 29 years old. Lloyd Callender’s mother became a U.S.
citizen in 2000, when he was 33 years old.
In 2004, Lloyd Callender was convicted of drug, weapons, and assault offenses in the
United States District Court for the District of Columbia. In 2019, he was served with a
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Notice to Appear and was charged as removable based on several criminal convictions,
including two aggravated felonies. Lloyd Callender sought to terminate his removal pro-
ceedings, arguing that he had derived U.S. citizenship from his father and that he was a
citizen based on his contention that he was born in the Canal Zone in Panama.
At a hearing where Lloyd Callender was represented by counsel, he conceded that he
had committed the criminal offenses listed in his Notice to Appear and conceded that he
was born in Panama, outside of the Canal Zone. However, he presented arguments about
derivative citizenship. An Immigration Judge (“IJ”) concluded that Lloyd Callender was
removable as charged and rejected his claim of citizenship. The Board of Immigration
Appeals (“BIA”) affirmed that ruling. Lloyd Callender timely petitioned for review.
II.
Our jurisdiction is limited when, as here, a petitioner is removable due to a conviction
for an aggravated felony. See 8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii); see also 8
U.S.C. § 1101(a)(43)(B), (F). However, we retain jurisdiction to review a petitioner’s col-
orable constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); see also
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). We generally have jurisdic-
tion to review nationality claims, including those asserting derivative citizenship. 8 U.S.C.
§ 1252(b)(5)(A). Because the parties dispute only the legal significance of the facts under-
lying Lloyd Callender’s arguments and not the facts themselves, we can decide his argu-
ments as a matter of law. Cf. Joseph v. Att’y Gen., 421 F.3d 224, 229-30 (3d Cir. 2005).
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III.
On review, Lloyd Callender argues that he derived citizenship from his U.S. citizen
father as a child because he lived with his father while his parents were physically sepa-
rated.
Under 8 U.S.C. § 1432(a), the law in effect before Lloyd Callender turned 18, “a child
born outside the United States automatically acquires United States citizenship if, while
the child is under the age of eighteen, the parent with legal custody of the child is natural-
ized while that child’s parents are legally separated.”1 Morgan v. Att’y Gen., 432 F.3d
226, 228 (3d Cir. 2005). That section also provides for other ways of deriving U.S. citi-
zenship from a parent, but Lloyd Callender has not argued that any of those other circum-
stances apply here.
The BIA rejected this claim because Lloyd Callender’s parents did not legally separate
before he turned 18. He argues that no formal judicial decree was necessary. We disagree.
Even assuming that a child could automatically naturalize under § 1432(a) after his
parents legally separate if the custodial parent naturalized prior to the separation, we have
held that “a legal separation for purposes of § 1432(a) occurs only upon a formal govern-
mental action, such as a decree issued by a court of competent jurisdiction that, under the
1
“The law applicable is that in effect at the time the critical events giving rise to the claim
for derivative citizenship occurred.” Morgan v. Att’y Gen., 432 F.3d 226, 230 (3d Cir.
2005). Since 2001, children born abroad automatically naturalize if a custodial parent nat-
uralizes, even if there has been no legal separation between the parents, but Lloyd Callen-
der was already over the age of 18 in 2001 and the law is not retroactive. See id. at 230
n.1.
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laws of a state or nation having jurisdiction over the marriage, alters the marital relationship
of the parties.” See Morgan, 432 F.3d at 234. An individual cannot derive citizenship
from a custodial U.S. citizen parent under § 1432(a), even where that individual’s parents
have informally lived apart for decades, if there was no “formal government action” before
the separation, as described in Morgan. Dessouki v. Att’y Gen., 915 F.3d 964, 967 (3d Cir.
2019). Lloyd Callender argues in his brief that Black’s Law Dictionary’s definition of a
“separation” includes an agreement to live apart by mutual consent, but that does not con-
stitute formal governmental action as required by § 1432(a). See Morgan, 432 F.3d at 234.
The only formal governmental action identified by Lloyd Callender was his parents’ di-
vorce in 1996, which occurred well after he turned 18. Accordingly, the agency appropri-
ately determined that Lloyd Callender could not establish derivative citizenship through
his father under § 1432(a).
Lloyd Callender raises several other claims in his brief, all of which were either not
raised or were explicitly conceded during his counseled hearing on his motion to terminate
before the IJ. He did raise these claims before the BIA. Presumably, the BIA could have
either deemed these claims waived for Lloyd Callender’s failure to raise them before the
IJ, see Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir. 2015) (per curiam), or excused the
waiver and addressed them on the merits, thus rendering them administratively exhausted,
cf. Lin v. Att’y Gen., 543 F.3d 114, 124-25 (3d Cir. 2008) (discussing Sidabutar v. Gon-
zalez, 503 F.3d 1116, 1119-20 (10th Cir. 2007)). Instead, the BIA did not address these
claims.
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However, even if the BIA erred by not discussing these claims, remand to the agency
would be futile. See Ricketts v. Att’y Gen., 955 F.3d 348, 351-52 (3d Cir. 2020); Yuan v.
Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011). Lloyd Callender argues that he is a U.S.
national because he has pledged his allegiance to the U.S. and has lived here most of his
life, but we have held that for “a citizen of another country, nothing less than citizenship
will show permanent allegiance to the United States.” See Salim v. Ashcroft, 350 F.3d
307, 310 (3d Cir. 2003) (per curiam) (internal quotation marks omitted).
Lloyd Callender also maintains that one of his criminal offenses, a drug offense, is not
an aggravated felony and should not have been a basis for his removal. However, Lloyd
Callender was convicted of several other offenses that were a basis for his removability,
including another aggravated felony, see 8 U.S.C. § 1101(a)(43)(F), and he does not contest
that his other convictions would render him removable if he is not a U.S. citizen. See Yuan,
642 F.3d at 427.
Finally, Lloyd Callender contends that there is a “statute of limitations” on deportations
and that DHS waited too long after his convictions in 2004 to begin his removal proceed-
ings in 2019. Although there is a time-bar on the initiation of removal proceedings from
improperly granted lawful permanent resident status, see Malik v. Att’y Gen., 659 F.3d
253, 257 (3d Cir. 2011), there is no specific time-bar that applies generally to deportation
proceedings stemming from an underlying criminal offense, see Restrepo v. Att’y Gen.,
617 F.3d 787, 801 (3d Cir. 2010).
Accordingly, we will deny Lloyd Callender’s petition.
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