Henry v. Quarantillo

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Leroy Anthony HENRY, Plaintiff-Appellant, v. Andrea QUARANTILLO, District Director, New York District Office of the U.S. Citizenship & Immigration Services, Robert P. Weimann, Chief, Administrative Appeals Office, U.S. Citizenship and Immigration Services, U.S. Citizenship and Immigration Services, Defendants-Appellees.

No. 10-1264.

United States Court of Appeals, Second Circuit.

March 4, 2011.

633 F.3d 363

Present: ROBERT A. KATZMANN, REENA RAGGI and RAYMOND J. LOHIER, JR., Circuit Judges.

throughout the country. Moreover, we find no error in the IJ‘s determination that Xia failed to demonstrate that officials in China were aware of her Christian beliefs or that they would inflict harm on her rising to the level of persecution on account of those beliefs. See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008). Substantial evidence supports the agency‘s finding that Xia failed to demonstrate a well-founded fear of persecution based on her Christian beliefs and activities, and the agency reasonably denied her application based on that claim. See

id.; see also

Paul, 444 F.3d at 156.

III. Motion to Remand

Xia argues that the BIA‘s denial of her motion to remand was legally erroneous because the sole ground upon which the BIA relied was Xia‘s failure to provide her own affidavit in support of the motion. The record does not support this argument.

The BIA is without jurisdiction to consider new evidence not in the record before the IJ. A party wishing to present new evidence in support of her claim must file a motion to remand. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion to remand.“). A motion to remand that relies on new evidence is held to the substantive standard of a motion to reopen. See

Li Yong Cao, 421 F.3d at 156. The agency may deny a motion to remand or reopen when a prima facie case for the relief sought is not established.

INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); see also

Matter of Coelho, 20 I. & N. Dec. 464, 472 (B.I.A. 1992).

The BIA did not abuse its discretion in denying Xia‘s motion to remand. It reasonably determined that Jin Fu Chen‘s statement failed to establish Xia‘s prima facie eligibility for relief because Chen was not similarly situated to Xia insofar as his purportedly forced sterilization occurred seven years prior to Xia‘s motion to remand, his children were from Japan and not the United States, and he voluntarily registered his children in his household registry. See

See Jian Hui Shao, 546 F.3d at 159-61.

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

Scott E. Bratton, Margaret Wong & Associates Co., LPA, Cleveland, OH, for Plaintiff-Appellant.

Margaret M. Kolbe, Assistant United States, Attorney (Varuni Nelson and Scott Dunn, Assistant United States Attorneys, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Defendants-Appellees.

SUMMARY ORDER

Plaintiff-Appellant Leroy Henry appeals from the February 2, 2010,

684 F.Supp.2d 298, order of the district court granting the defendants’ motion for summary judgment dismissing the complaint. On appeal, Henry argues that the district court erred in granting summary judgment on the ground that Henry failed to demonstrate that he derived citizenship through his father‘s 1972 naturalization pursuant to 8 U.S.C. § 1432(a)(3). We assume the parties’ familiarity with the facts and procedural history of this case.

As an initial matter, we assume for purposes of this appeal that Henry has satisfied the requirements of 8 U.S.C. § 1503(a) and, accordingly, that we have jurisdiction over the action. We review the district court‘s grant of summary judgment de novo. See, e.g.,

Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). “It is beyond cavil that [we] may affirm the judgment of the district court on any ground appearing in the record.”

Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997).

Henry claims that he became a citizen of the United States through his father‘s 1972 naturalization pursuant to section 321 of the Immigration and Nationality Act, the former 8 U.S.C. § 1432.¹ Section 1432(a) provided that a child born outside of the United States to alien parents becomes a citizen of the United States upon “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents ... and if ... [s]uch naturalization takes place while such child is under the age of eighteen years.” 8 U.S.C. § 1432(a)(3), (4) (1999). Under § 1432, “derivative citizenship is automatic; that is, when certain conditions exist, a child becomes a U.S. citizen even though neither parent, nor the child, has requested it and regardless of whether any of them actually desires it.”

Lewis v. Gonzales, 481 F.3d 125, 131 (2d Cir. 2007) (per curiam). We have held that ”§ 1432(a)(3) requires a formal act which, under the laws of the state or nation having jurisdiction of the marriage, alters the marital relationship either by terminating the marriage (as by divorce), or by mandating or recognizing the separate existence of the marital parties.”

Brissett v. Ashcroft, 363 F.3d 130, 134 (2d Cir. 2004).

Here, there is no dispute that Henry‘s parents have never been married. Henry nevertheless argues that his parents were legally separated under Jamaican law prior to his eighteenth birthday. He presents as evidence an order of the Supreme Court of Judicature of Jamaica, High Court Civil Division, dated July 29, 2008 (the “2008 Order“), which provides in pertinent part that Henry‘s parents “were common law spouses for the period 1953-1966” and “are separated and having been so separated from and since 1966.” App‘x 216. The 2008 Order, however, does not purport to apply retroactively, or nunc pro tunc, as of 1966. Nor does it purport to effect a legal separation of Henry‘s parents. Henry indeed relies upon a letter of Deborah Dowding of Chambers, Bunny & Steer, which acknowledges that “[Jamaican] courts can not issue a decree of judicial separation,” but can issue a declaration, based upon evidence, of the date of “the inception of the union” and “the date of separation which is a question of fact.” Id. at 219 (emphasis added). Dowding‘s letter therefore suggests that the 2008 Order declares that Henry‘s parents were separated as a factual matter only. Accordingly, Henry has not borne his burden of demonstrating a “legal separation” of his parents prior to his eighteenth birthday, as required by 8 U.S.C. § 1432(a).

We conclude that the district court did not err in granting summary judgment dismissing the complaint on the ground that Henry failed to establish derivative citizenship pursuant to 8 U.S.C. § 1432. We have considered Henry‘s remaining arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

Notes

1

Section 1432 was repealed by the Child Citizenship Act of 2000 (“CCA“), Pub.L. No. 106-395, § 103, 114 Stat. 1631, 1632. The CCA does not apply retroactively, see

Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003) (per curiam), and thus is inapplicable here.

Case Details

Case Name: Henry v. Quarantillo

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 4, 2011

Citation: 414 F. App'x 363

Docket Number: 10-1264

Court Abbreviation: 2d Cir.