Aldo Pena v. Eric Holder, Jr. ( 2013 )

Case: 12-60090 Document: 00512259085 Page: 1 Date Filed: 05/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 31, 2013
No. 12-60090
Summary Calendar Lyle W. Cayce
Clerk
ALDO JAVIER PENA,
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. A074 652 177
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Aldo Javier Pena, a native and citizen of Mexico born on October 17, 1983,
illegally entered the United States sometime before to April 30, 2001. He did not
obtain lawful permanent resident status until November 7, 2003, when he was
twenty years old. On July 29, 2009, he possessed a firearm, in violation of
Section 39-17-1307 of the Tennessee Code, and he committed two controlled
substance offenses—possession of marijuana and possession of
dihydrocodeinone—in violation of Section 39-17-418. He seeks review of the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60090
Board of Immigration Appeals (“the Board’s”) decision dismissing his appeal of
the Immigration Judge’s (“IJ’s”) denial of his application for cancellation of
removal and his claim to derivative citizenship through his mother.
This court reviews the Board’s factual findings for substantial evidence.
Khalid v. Holder, 655 F.3d 363, 366 (5th Cir. 2011). Applying Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), this court
subjects the Board’] construction of the immigration statutes “to a deferential
review.” Deus v. Holder, 591 F.3d 807, 809 (5th Cir. 2009). This deferential
review asks (1) whether Congress has directly spoken to the precise issue
involved, and if not, (2) whether the Board’s answer is based on a permissible
construction of the statute. See id.Eligibility for cancellation of removal requires seven years of continuous
residence in the United States “after having been admitted in any status.”
8 U.S.C. § 1229b(a)(2). “Admitted,” in this context, means that the alien lawfully
entered the United States “‘after inspection and authorization by an immigration
officer.’” Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2015 n.1 (2012) (quoting
8 U.S.C. § 1101(a)(13)(A)). Thus, Pena began to accrue time as a lawful resident
in November 2003, when he obtained lawful resident status. See id. However,
an alien stops accruing time of residence in the United States upon commission
of a crime that makes him inadmissible. 8 U.S.C. § 1229b(d)(1); see also
Martinez Gutierrez, 132 S. Ct. at 2015 n.2. Therefore, Pena stopped accruing
time of residence in the United States on the date he committed the controlled
substances offenses, July 29, 2009. Id. Since less than seven years had elapsed
since he obtained legal resident status, the IJ and the Board correctly found him
ineligible for cancellation of removal.
Pena argues that under the Child Status Protection Act (“CSPA”), his age
was “frozen” when his mother, after becoming a naturalized citizen, filed a
petition on his behalf for lawful resident status when he was thirteen years old.
He argues that his derivative citizen status should have been automatic on the
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No. 12-60090
date his mother became a naturalized citizen. See 8 U.S.C. § 1431(a). Pena also
suggests that he was lawfully admitted as an infant by virtue of his mother’s
naming him as a joint applicant on all of her applications.
Under the version of the derivative citizenship statute applicable to Pena,
a child born outside of the United States automatically becomes a citizen of the
United States when “(1) At least one parent of the child is a citizen of the United
States, whether by birth or naturalization[,]” (2) The child is less than eighteen
years old, and “(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.” Id. § 1431(a)(1)–(3) (emphasis added). Pena was twenty
when he first obtained legal status. Since Pena failed to establish that he was
admitted for lawful permanent residence while under the age of eighteen, the
Board did not err in finding that he did not satisfy the statutory requirements
for derivative citizenship. Id. § 1431(a)(3). This was a permissible construction
of the statute. See Marquez–Marquez v. Gonzales, 455 F.3d 548, 550 n.3 (5th
Cir. 2006); Walker v. Holder, 589 F.3d 12, 19–21 (1st Cir. 2009). Nor is there
merit to Pena’s arguments that under the CSPA, he automatically became a
citizen when his mother was naturalized in May 1997 or that he retained his
“child” status until the time he was admitted for permanent residence in 2003.
The CSPA, 8 U.S.C. § 1153(h)(1)(A), is not applicable to the facts of this petition.
Nor may Pena claim that his mother’s lawful status was imputed to him prior
to November 2003, or under the prior version of the derivative citizenship
statute, 8 U.S.C. § 1432, for purposes of cancellation of removal. Martinez
Gutierrez, 132 S. Ct. at 2014–15; see Marquez-Marquez, 455 F.3d at 550 n.3.
Accordingly, Pena’s petition for review is DENIED.
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