Salmon v. Sessions, 677 F. App'x 19

Petitioner Raphael Willestly Salmon, a Jamaican national, faced removal after criminal convictions; he sought review of the BIA’s February 22, 2016 decision affirming the IJ’s denial of motions to terminate or continue proceedings and ordering removal.
Salmon argued he derived U.S. citizenship from his mother under 8 U.S.C. § 1431(a) because USCIS delay or error should have resulted in his mother’s naturalization before he turned 18.
Salmon’s mother’s naturalization application was denied (and she never naturalized); she also failed to exhaust administrative remedies in challenging that denial.
Salmon moved for a continuance of removal proceedings pending resolution of his mother’s challenge to the naturalization denial, asserting potential derivative citizenship if she were later recognized as naturalized nunc pro tunc.
The agency found derivative citizenship speculative here and denied the continuance; the BIA affirmed; Salmon sought review limited to legal and constitutional questions because of his convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Derivative citizenship under § 1431(a)	Salmon: USCIS delay/agency error should allow nunc pro tunc grant of mother’s naturalization, enabling his derivative citizenship before age 18	Government: Mother never naturalized; no agency error or undue delay warranting nunc pro tunc relief	Court: Denied — Salmon fails requirement that a parent be a U.S. citizen; no basis for nunc pro tunc relief here
Denial of continuance (due process)	Salmon: Agency violated due process by refusing continuance to await mother’s challenge, prejudicing his ability to claim derivative citizenship	Government: Relief speculative; denial within agency discretion and no prejudice because mother’s challenge failed	Court: Denied — continuance denial not a due process violation; no prejudice shown

Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (standards for reviewing IJ decisions as supplemented by BIA)
Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standards of review for immigration decisions)
Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006) (standards for reviewing removal orders)
Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) (jurisdictional limits to review when petitioner has criminal convictions)
Poole v. Mukasey, 522 F.3d 259 (2d Cir. 2008) (nunc pro tunc relief limited to exceptional agency error causing preclusion from relief)
Xue Yong Zhang v. Holder, 617 F.3d 650 (2d Cir. 2010) (limitations on nunc pro tunc relief and review)
Drakes v. Ashcroft, 323 F.3d 189 (2d Cir. 2003) (elements required for derivative citizenship under § 1431)
Garcia-Villeda v. Mukasey, 531 F.3d 141 (2d Cir. 2008) (prejudice requirement for due process challenge)