Daniel Burgos Rodriguez v. Eric Holder, Jr. , 495 F. App'x 456 ( 2012 )

Case: 11-60878 Document: 00512030617 Page: 1 Date Filed: 10/24/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2012
No. 11-60878
Summary Calendar Lyle W. Cayce
Clerk
DANIEL BURGOS RODRIGUEZ,
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. A036 664 115
Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Daniel Burgos Rodriguez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
the immigration judge’s order of removal. He argues that, pursuant to the
derivative citizenship statutes now in effect, he is a United States citizen. He
also argues that, if his citizenship is determined by the derivative citizenship
statutes in effect at the time of his birth in 1967, those statutes violate his
constitutional rights.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60878 Document: 00512030617 Page: 2 Date Filed: 10/24/2012
No. 11-60878
We have jurisdiction to review “constitutional claims or questions of law
raised upon a petition for review,” 8 U.S.C. § 1252(a)(2)(D), so long as “the alien
has exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). Rodriguez did not raise in his appeal to the BIA an
argument that, under the current law now in effect, he is eligible for derivative
citizenship based upon his United States citizen mother. We lack jurisdiction
to review that unexhausted claim. See Omari v. Holder, 562 F.3d 314, 318-19,
321-22 (5th Cir. 2009).
The applicable law for transmitting citizenship to a legitimate child born
abroad when one parent is a United States citizen is the statute that was in
effect at the time of the child’s birth. See United States v. Cervantes-Nava, 281
F.3d 501, 503 n.2 (5th Cir. 2002) (citing United States v. Gomez-Orozco, 188 F.3d
422, 426-27 (7th Cir. 1999)). Rodriguez argues that the derivative citizenship
statues in effect at the time of his birth, see former 8 U.S.C. §§ 1401(a)(7),
1409(c) (1952), violate his due process right to equal protection under the law
because, as a child born to a married United States citizen living abroad, he
faces a more onerous hurdle in establishing derivative citizenship than similarly
situated children born to unwed citizen mothers.
Assuming, for argument purposes only, that the relevant derivative
citizenship statutes violate equal protection guarantees, we cannot grant
Rodriguez any relief regarding his status as an alien. To cure the alleged equal
protection problems, we would have to either “sever the more lenient residency
requirement for citizen mothers of illegitimate children or [] strike down the
[Immigration and Nationality Act] [] in its entirety.” Cervantes-Nava, 281 F.3d
at 504. “Neither remedy would result in [Rodriguez] being granted citizenship.”
Id.Finally, we note that, although Rodriguez argues that the derivative
citizenship statutes in effect at the time of his birth violate his mother’s First
Amendment rights, he lacks standing to raise that claim. See Nehme v. INS, 252
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Case: 11-60878 Document: 00512030617 Page: 3 Date Filed: 10/24/2012
No. 11-60878
F.3d 415, 430 n.18 (5th Cir. 2001). Rodriguez’s petition for review is DENIED.
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