Henriz Brasmin Colon-Calderon v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2425
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HENRIZ BRASMIN COLON-CALDERON,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A044-659-339)
Immigration Judge: Honorable John P. Ellington
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 8, 2018
Before: VANASKIE, COWEN and NYGAARD, Circuit Judges
(Opinion filed: March 9, 2018)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Henriz Brasmin Colon-Calderon, a citizen of the Dominican Republic, petitions
for review of a final order of removal. For the following reasons, we will deny the
petition.
Colon-Calderon was born to alien parents in the Dominican Republic in April
1990. He was admitted to the United States as a conditional resident in June 1994, and
adjusted his status to lawful permanent resident in May 2001. In 2015, Colon-Calderon
pleaded guilty to possession with intent to distribute cocaine. See 21 U.S.C. § 841(a) and
§ 841(b)(1)(C). He was sentenced to 21 months of imprisonment.
The Government charged Colon-Calderon with removability for having been
convicted of an aggravated felony as defined in Immigration and Nationality Act (INA)
§ 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B)] (illicit trafficking in a controlled substance),
INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of
a controlled substance offense, INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)]. An
Immigration Judge (IJ) concluded that Colon-Calderon was removable as charged; that
he was ineligible for asylum, withholding of removal (under both the INA and the
Convention Against Torture (CAT)), cancellation of removal, and adjustment of status;
and that he was not entitled to deferral of removal under the CAT based on his allegation
that he will be “harmed by the corrupt Dominican Police.”
On appeal to the Board of Immigration Appeals, Colon-Calderon argued that his
conviction did not constitute a “particularly serious crime” and that he obtained
derivative United States citizenship from his father, who naturalized in April 2009. The
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Board rejected these claims, holding that Colon-Calderon failed to overcome the
presumption that his drug conviction was a particularly serious crime and concluding that
he did not derive citizenship because he was over 18 years of age when his father became
a naturalized citizen. Colon-Calderon filed a pro se petition for review of the BIA’s
decision.
We generally lack jurisdiction to review a final order of removal against a criminal
alien, like Colon-Calderon, who is removable for having committed an offense covered in
§ 237(a)(2). See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review
constitutional claims, “pure questions of law,” and “issues of application of law to fact,
where the facts are undisputed and not the subject of challenge.” Kamara v. Att’y Gen.,
420 F.3d 202, 211 (3d Cir. 2005); see also 8 U.S.C. § 1252(a)(2)(D). Here, a liberal
construction of Colon-Calderon’s pro se brief leads us to conclude that we have
jurisdiction over his claim that the IJ failed to “specif[y] any basis” for concluding that he
was convicted of a particularly serious crime. 1 See Chong v. INS, 264 F.3d 378, 387 (3d
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Colon-Calderon’s informal brief does not challenge the determinations that: (1) he is
removable; (2) that he is not eligible for asylum, cancellation of removal, and adjustment
of status; and (3) that he did not qualify for deferral of removal under the CAT.
Therefore, those claims have been waived. See Bradley v. Att’y Gen., 603 F.3d 235, 243
n.8 (3d Cir. 2010) (holding that argument not raised in opening brief is waived).
Moreover, because Colon-Calderon did not raise those claims on appeal to the BIA, they
have not been exhausted administratively and we would lack jurisdiction to consider
them even if he had presented them in his opening brief. See INA § 242(d)(1) [8 U.S.C.
§ 1252(d)(1)]; Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012) (“A petitioner’s
failure to exhaust an issue by presenting it to the BIA deprives us of jurisdiction to
consider that issue.”). We also note that although Colon-Calderon argued before the
Board that the denial of his derivative citizenship claim violated equal protection, he did
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Cir. 2001). Nevertheless, for the reasons discussed below, we conclude that this claim
lacks merit.
In In re Y-L, 23 I. & N. Dec. 270 (A.G. 2002), the Attorney General held that drug
trafficking crimes presumptively constitute particularly serious crimes, but acknowledged
“the possibility of the very rare case where an alien may be able to demonstrate
extraordinary and compelling circumstances” rebutting that presumption. 2 Id. at 276. To
establish such circumstances, Colon-Calderon emphasized that his offense involved a
small amount of cocaine with a low monetary value, that no violence or weapons were
used, that he cooperated with officials, that he was sentenced to 21 months of
imprisonment, and that he had plans to rehabilitate himself through a job and education.
The IJ acknowledged these factors but concluded that Colon-Calderon’s crime was
particularly serious. In support of this determination, the IJ noted that Colon-Calderon
was prosecuted and convicted in federal court, that he faced a 20 year prison sentence,
and that he was not given any “federal first offender programs or de minimis sentencing.”
Contrary to Colon-Calderon’s assertion, this analysis sufficiently explains the IJ’s basis
not pursue that claim in his brief. See Bradley, 603 F.3d at 243 n.8.
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For this exception to apply, the alien must show, “at a minimum,” that each of the
following factors is satisfied: (1) “a very small quantity of controlled substance” was at
issue; (2) “a very modest amount of money [was] paid for the drugs in the offending
transaction”; (3) the alien had only “peripheral involvement” in the offense; (4) no
violence or threat of violence (implicit or otherwise) was associated with the offense; (5)
the offense did not involve, either directly or indirectly, “organized crime or terrorist
organization involvement”; and (6) the offense did not have “any adverse or harmful
effect” on juveniles. In re Y-L-, 23 I. & N. Dec. at 276-77.
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for concluding that the possession with intent to distribute cocaine conviction was
particularly serious. See Chong, 264 F.3d at 387 (holding that due process was satisfied
where agency engaged in an individualized determination based of the facts of the case,
“rather than blindly following a categorical rule, i.e., that all drug convictions qualify as
‘particularly serious crimes’”); cf. Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)
(explaining that the agency does not have “to write an exegesis on every contention”
raised by the movant).
We also have jurisdiction over Colon-Calderon’s claim to derivative citizenship.
See Poole v. Mukasey, 522 F.3d 259, 262 (3d Cir. 2008). Colon-Calderon argued to the
Board that he had derived citizenship through his father. Congress has “exclusive
constitutional authority” over naturalization. INS v. Pangilinan, 486 U.S. 875, 882
(1988). The INA “confers citizenship on children born outside of the United States to
alien parents when certain statutory conditions are met.” Morgan v. Att’y Gen., 432 F.3d
226, 229 (3d Cir. 2005). In particular, under INA § 320 [8 U.S.C. § 1431], derivative
citizenship is automatically granted to children born outside of the United States who
have at least one parent who is a citizen of the United States, who are under the age of 18,
and who are residing in the United States under the custody of the citizen parent. 3
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“[D]erivative citizenship is determined under the law in effect at time the critical events
giving rise to eligibility occurred.” Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.
2005). The critical events “are the date of the child’s birth, the time of the child’s entry
into the United States, and the date of the parent’s naturalization.” Morgan, 432 F.3d at
230. Here, when Colon-Calderon was born and entered the United States, the statute in
effect was INA § 321 [8 U.S.C. § 1432]. That section was repealed by the Child
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There is no dispute that Colon-Calderon was over 18 when his father naturalized. He
argues, however, that he derived citizenship because he was under 18 when his father
applied for naturalization in 2006. In support of this assertion, Colon-Calderon relies on
the Child Status Protection Act (CSPA), which provided “age-out” protection for
individuals who were children at the time a petition for specified types of relief was filed
on their behalf. See Carpio v. Holder, 592 F.3d 1091, 1100 (10th Cir. 2010) (stating that
the CSPA “applies to petitioners seeking classification (1) as an immediate relative of a
United States citizen; (2) as the child of a lawful permanent resident; (3) as the child of
an applicant for employment-based permanent residence; (4) as a diversity immigrant;
and (5) as a child accompanying or following to join a refugee or asylum parent.”
(internal citations omitted)). But the CSPA does not, by its terms, apply to aliens seeking
derivative citizenship. See Tista v. Holder, 722 F.3d 1122, 1126 (9th Cir. 2013) (“the
CSPA by its plain language applies to a limited number of provisions in the [INA]. It
covers certain types of visas (family-based, employment-based, and diversity-based), and
applications for refugee status and asylum.”). Because we cannot confer citizenship
outside the limitations established by Congress, see Pangilinan, 486 U.S. at 884-85,
Colon-Calderon’s attempt to extend the CSPA must fail.
Citizenship Act of 2000 (“CCA”), which took effect on February 27, 2001. Bagot v.
Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005). Thus, when Colon-Calderon’s father
naturalized in April 2009, another provision, INA § 320 [8 U.S.C. § 1431], applied.
Notably, both the current and former versions of the relevant statute require that a child
born outside of the United States to alien parents be under 18 years of age at the time his
or her parent or parents naturalize. § 320(a)(2); § 321(a)(4).
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To the extent that Colon-Calderon invites us to equitably estop the United States
Citizenship and Immigration Service (USCIS) from denying the derivative citizenship
claim, we decline. See Pangilinan, 486 U.S. at 885 (“[n]either by application of the
doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does
a court have the power to confer citizenship in violation of these limitations.”). Even if
we could apply the traditional requirements for estoppel in this circumstance, Colon-
Calderon has not provided a basis for exercising that authority. In particular, he has not
shown affirmative Government misconduct or any other circumstance warranting such
relief. Mudric v. Att’y Gen., 469 F.3d 94, 99 (3d Cir. 2006).
For the foregoing reasons, we will deny the petition for review.
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