Asbert Joseph v. Eric Holder, Jr.
2013 U.S. App. LEXIS 11109
5th Cir.2013Background
- Asbert Fitzgerald Joseph, a Saint Vincent and the Grenadines national, challenges a BIA denial of his motion to reopen/reconsider removal proceedings.
- Joseph asserts he derived U.S. citizenship under 8 U.S.C. § 1432(a)(3) through his mother, claiming she had sole legal custody and that the parents were legally separated when she naturalized in Oct. 1988.
- In Jan. 1988, Joseph’s father filed for divorce; a default divorce and custody order granted mother legal custody of Joseph, later vacated by order May 24, 1988.
- Joseph argues the May 1988 vacatur meant the parties remained legally separated at the time of mother’s naturalization, rendering him a citizen under § 1432(a)(3).
- New York law, however, treats the divorce order as effective between spouses even before final judgment; thus Joseph’s separation claim fails as a matter of law.
- The court reviews citizenship claims de novo as essential jurisdictional facts, and defers to the BIA on discretionary rulings like motions to reopen; the filing was untimely and other issues limit review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Citizenship via § 1432(a)(3) is proven? | Joseph derived citizenship through his mother under § 1432(a)(3) while they were legally separated. | Mother was not legally separated at her naturalization; claim fails. | Claim fails as a matter of law. |
| Whether the BIA properly denied reopening/reconsideration? | BIA should have tolled or considered sua sponte reopening due to ineffective assistance. | Court lacks jurisdiction to review sua sponte reopening; untimely filing bars review. | Petition denied in part and dismissed in part for lack of jurisdiction; untimely and non-reviewable issues prevail. |
Key Cases Cited
- Duarte-Ceri v. Holder, 630 F.3d 83 (5th Cir. 2010) (de novo review of citizenship claims; essential jurisdictional facts)
- Ng Fung Ho v. White, 259 U.S. 276 (U.S. 1922) (citizenship denial as essential jurisdictional fact; review standard)
- Marquez-Marquez v. Gonzalez, 455 F.3d 548 (5th Cir. 2006) (nationality claims reviewed de novo)
- Lopez v. Holder, 563 F.3d 107 (5th Cir. 2009) (de novo review framework; jurisdictional considerations)
- Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006) (resolve doubts in favor of United States in citizenship cases)