771 F.3d 238
5th Cir.2014Background
- Gonzalez, born in Veracruz, Mexico, entered the U.S. illegally in 1992 at age seven; his father later naturalized and filed an I-130 petition on his behalf.
- Gonzalez did not become a lawful permanent resident until July 24, 2008, when he was 23.
- In 2011, Gonzalez pleaded guilty to criminal sexual penetration in the third degree, a felony.
- DHS initiated removal proceedings; Gonzalez argued derivative citizenship under former § 1432(a)(5) and sought a continuance to gather supporting documents.
- IJ denied the continuance and held Gonzalez did not derive citizenship because he was not an LPR before age 18; BIA affirmed.
- Gonzalez timely petitioned for review; the court expedited the appeal and denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1432(a)(5) requires LPR before 18 for derivative citizenship. | Gonzalez argues the second clause allows residency without lawful admission. | BIA and circuit interpretations require LPR before 18 (Second Circuit view as possible alternative). | Gonzalez not entitled under either interpretation; petition denied. |
| Whether Gonzalez satisfies the second clause by residing permanently in the U.S. despite unlawful entry. | Gonzalez contends the second clause applies to ongoing permanent residence. | Unlawful entry prevents the required permanent residence status. | Not entitled; unlawful entry defeats derivative citizenship. |
| Whether Gonzalez may rely on the Second Circuit’s construction given his factual history. | Argues he satisfies the second clause based on I-130 filing and residence. | Court need not adopt the Second Circuit approach to reach denial; he does not qualify under either. | Court declines to decide between circuits; Gonzalez fails under both approaches. |
Key Cases Cited
- Matter of Nwozuzu, 24 I. & N. Dec. 609 (B.I.A. 2008) (BIA held §1432(a)(5) requires LPR before age eighteen)
- Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) (Second Circuit: ‘reside permanently’ may differ from ‘lawfully admitted for permanent residence’; supports derivative analysis)
- Kaplan v. Tod, 267 U.S. 228 (1925) (derivative citizenship requires lawful entry)
- Zartarian v. Billings, 204 U.S. 170 (1907) (early authority on residency requirements for derivative citizenship)
- Ashton v. Gonzales, 431 F.3d 95 (2d Cir. 2005) (interpreting ‘permanent’ and residence concepts in derivative citizenship context)
- United States v. Juarez, 672 F.3d 381 (5th Cir. 2012) (addressed derivative citizenship issue in limited context; recognized unsettled landscape)
- Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) (context for statutory interpretation of derivative citizenship)
- United States v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010) (courts’ treatment of ‘reside permanently’ in §1432)