Marissa Rosqueta v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARISSA MONTE ROSQUETA, No. 16-70047
Petitioner, Agency No. A043-022-178
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Petitioner Marissa Monte Rosqueta petitions for review of the Board of
Immigration Appeals’s (BIA) final order of removal. We have jurisdiction over
Rosqueta’s claim to derivative citizenship through her adoptive parents, who are
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
naturalized United States citizens, pursuant to 8 U.S.C. § 1252(a)(5). We have
jurisdiction over Rosqueta’s other legal and constitutional challenges to the BIA’s
decision pursuant to 8 U.S.C. § 1252(a)(2)(D). We review the BIA’s legal
conclusions de novo, see Saldivar v. Sessions, 877 F.3d 812, 814 (9th Cir. 2017),
and we deny Rosqueta’s petition for review.1
1. The BIA did not err as a matter of law in denying Rosqueta’s claim to
derivative United States citizenship. Preliminarily, in the absence of any
supporting legal authority, we reject her contention that her adoption was final
prior to her eighteenth birthday. Likewise, we cannot agree that Rosqueta gained
automatic citizenship through her admission to the United States on an immediate
relative immigrant visa.
We also discern no error in the BIA’s application of former 8 U.S.C. §
1432(b) (repealed 2000) (which the parties refer to as INA § 321) to Rosqueta’s
derivative citizenship claim. Even if Rosqueta’s adoption was final prior to her
eighteenth birthday, this section could only confer citizenship on an adopted child
if the “child [was] residing in the United States at the time of naturalization of such
adoptive parents . . . pursuant to a lawful admission for permanent residence.” Id.
1
The parties are familiar with the facts and procedural background, so
we recite it only as necessary to decide Rosqueta’s petition.
2
It is undisputed that Rosqueta was not a permanent resident at the time of her
parents’ naturalizations in 1980, and that Rosqueta entered the United States as a
permanent resident for the first time in 1991. The BIA correctly concluded that
Rosqueta is ineligible for derivative citizenship through her adoptive parents.
2. The BIA did not err as a matter of law in its application of 8 U.S.C.
§ 1182(h). Because Rosqueta entered the United States as a permanent resident,
then committed an aggravated felony, she is ineligible for a waiver of
inadmissability. Rosqueta asserts that this statutory scheme is “arbitrary and
capricious” because non-immigrants who subsequently adjust status may seek
waivers even if they have convictions for aggravated felonies, but aliens who
initially enter as immigrants cannot.
We have already addressed this issue, holding that the difference in
treatment is supported by a plain reading of the statutory text and “does not lead to
the type of result that permits invocation of the absurdity doctrine.” See Negrete-
Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014). A three-judge panel does
not have the ability to revisit that holding.
3. Rosqueta’s removal does not violate the Eighth Amendment. The sole
authority cited in support of this claim is a 1958 Supreme Court case addressing
forfeiture of preexisting citizenship as a statutory consequence of a wartime
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desertion conviction. See Trop v. Dulles, 356 U.S. 86, 88 (1958). Trop does not
support Rosqueta’s claim of cruel and unusual punishment.
Ninth Circuit law squarely addresses Rosqueta’s circumstances and holds
that “deportation is not ‘cruel and unusual punishment’ even though the ‘penalty’
may be severe,” Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999), reasoning in
part from the Supreme Court’s determination that deportation is not punishment,
even if it occurs because of a violation of underlying criminal laws. See Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
PETITION DENIED.
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