Steven Kharoufeh v. Eric Holder, Jr. , 599 F. App'x 619 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEN GEORGE KHAROUFEH, No. 11-71330
Petitioner, Agency No. A023-074-227
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2015**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.
I. Scope of the Remand
Following our remand, the Board of Immigration Appeals (BIA) again
dismissed Petitioner’s appeal in part on the ground that our prior remand was limited
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in scope to Petitioner’s claim of citizenship. Because our prior remand was not so
limited, but was a general remand, the BIA erred in failing to reach the entirely
separate due process claim.1 Accordingly, we grant the petition in part and remand
for further proceedings consistent with this disposition.2
II. Citizenship
Petitioner cannot qualify for derivative citizenship under former section 321(a)
of the INA because he “was already residing in the United States when his mother
naturalized, and was not residing pursuant to a lawful admission for permanent
residence,” Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008), “either at
the time of [his mother’s] naturalization or at some subsequent time while under the
1
The BIA held, in the alternative, that Petitioner had failed to show changed
circumstances since the initial Immigration Court decision or his motion to reopen.
This holding, however, does not in any way address Petitioner’s due process claim,
which concerns his right to counsel. “[A]n alien who shows that he has been
denied the statutory right to be represented by counsel in an immigration
proceeding need not also show that he was prejudiced by the absence of the
attorney.” Montes-Lopez v. Holder, 694 F.3d 1085, 1093–94 (9th Cir. 2012).
2
Because the BIA did not reach the merits of the Petitioner’s due process
claim, we do not reach the merits of it here. See Montes-Lopez v. Gonzales, 486
F.3d 1163, 1165 (9th Cir. 2007) (“Under the ordinary remand rule established in
INS v. Ventura and the general requirement of administrative exhaustion, we
usually decline to hear [a] claim unless the BIA does so in the first instance.”
(citation omitted)).
2
age of 18,” id. at 1062. Therefore, Petitioner’s claim that the BIA erred in holding
that he had not obtained derivative citizenship through his mother is denied.
PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED.
3