964 F.3d 313
5th Cir.2020Background
- Born in Romania in 1985; admitted to the U.S. as a refugee in 1986 in his parents’ care; mother naturalized in 1999.
- Nastase applied for adjustment to lawful permanent resident (LPR) status under 8 U.S.C. § 1159(a); an earlier application (filed 2006) was denied in 2012 as he was found inadmissible due to a 2007 conviction for delivery of a simulated controlled substance.
- He committed additional offenses (misdemeanors and a later felony meth possession) and was placed in removal proceedings; he claimed derivative citizenship from his mother’s 1999 naturalization under 8 U.S.C. § 1431(a).
- The Immigration Judge (IJ) held refugee admission did not satisfy § 1431(a)(3)’s requirement of being "lawfully admitted for permanent residence," found him inadmissible, and denied a discretionary waiver under § 1159(c).
- The Board of Immigration Appeals (BIA) affirmed the IJ on citizenship and waiver; Nastase petitioned for review: one petition challenging derivative citizenship and a second challenging the BIA’s denial of reconsideration of the waiver decision.
- The Fifth Circuit denied the citizenship claim and denied/dismissed the waiver challenge in part (no jurisdiction over discretionary factual determinations; no ultra vires action or heightened standard used by the BIA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether refugee admission equals "lawful admission for permanent residence" for derivative citizenship under 8 U.S.C. § 1431(a)(3) | Nastase: refugee admission is effectively permanent and thus satisfies the statute, so he derived citizenship when his mother naturalized | Government: refugee admission is distinct from LPR status; statutory scheme treats refugees and LPRs separately; refugees must apply for adjustment under § 1159(a) | Court: Refugee admission is not LPR admission; Nastase did not meet § 1431(a)(3); petition denied |
| Whether the BIA acted ultra vires or applied a heightened standard / failed to consider humanitarian factors in denying a § 1159(c) waiver | Nastase: BIA applied a heightened standard inappropriate here and failed to consider humanitarian factors (young age at entry, ties to U.S., inability to speak Romanian) | Government: BIA applied the ordinary § 1159(c) balancing; denial of discretionary waiver is generally unreviewable except for legal questions or ultra vires action | Court: No heightened standard was applied; BIA’s discretionary balancing is not reviewable here (petition denied in part and dismissed in part for lack of jurisdiction) |
Key Cases Cited
- Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006) (applicant bears burden for derivative citizenship; strict compliance required)
- Berenyi v. Dist. Dir., I.N.S., 385 U.S. 630 (1967) (resolve doubts against those seeking citizenship)
- I.N.S. v. Pangilinan, 486 U.S. 875 (1988) (naturalization statutes require strict compliance)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (give weight to agency decisions based on persuasiveness when Chevron inapplicable)
- Ali v. Lynch, 814 F.3d 306 (5th Cir. 2016) (interpreting § 1159(a) and the separate treatment of refugees and LPRs)
- Jean v. Gonzales, 452 F.3d 392 (5th Cir. 2006) (Attorney General may impose heightened waiver standards for violent criminals)
- Kucana v. Holder, 558 U.S. 233 (2010) (jurisdictional limits on review of discretionary immigration decisions)
- Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (distinguishing reviewable legal questions from factual determinations)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (abuse-of-discretion standard for BIA denials of reconsideration)
- Dhuka v. Holder, 716 F.3d 149 (5th Cir. 2013) (Chevron deference does not apply to non-precedential BIA decisions)