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Thomas v. Lynch

United States Court of Appeals, First Circuit

July 5, 2016

PIERRE THOMAS, Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Rhonda F. Gelfman, with whom The Law Offices of Rhonda F. Gelfman, P.A., were on brief, for petitioner.

          Linda Y. Cheng, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Acting Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

          Before Kayatta, Barron, and Stahl, Circuit Judges.

          BARRON, Circuit Judge.

         We must decide in this case whether petitioner Pierre Thomas satisfied the applicable statutory criteria for obtaining derivative citizenship in consequence of his mother's naturalization. Those criteria were set forth in the derivative citizenship statute that was in effect at the time that Thomas was still a minor. Thomas concedes that he is removable as an alien who has been convicted of an aggravated felony if he did not satisfy those criteria. Because we conclude that he did not satisfy them, we deny his petition.

         I.

         The following facts are not in dispute. Thomas was born in Haiti and was lawfully admitted to the United States in 1986, at the age of five, as a nonimmigrant visitor. He was authorized to remain in the United States for six months, but he and his parents remained in the country beyond that date. After his father died in 1993, Thomas continued to live in the United States with his mother for the remainder of his childhood.

         At some point while Thomas was a child, his mother obtained lawful permanent resident status. On July 31, 1995, when Thomas was fourteen years old, Thomas's mother filed an I-817 Application for Voluntary Departure on Thomas's behalf under the Family Unity Program.[1] That application was approved on August 25, 1995, giving Thomas authorization to remain in the United States for two years. Then, in 1997, Thomas's mother filed a Form I-130 petition, pursuant to 8 U.S.C. § 1154(a)(1)(B)(i)(I), to classify Thomas as the child of an alien lawfully admitted for permanent residence. That petition was approved on October 7, 1997.

         On May 18, 1999, Thomas's mother became a naturalized United States citizen. Three days later, Thomas turned eighteen years old. Thomas did not apply to become a lawful permanent resident during that three-day period that followed his mother's naturalization or at any other point. Instead, he continued living in the United States without a lawful admission for permanent residence.

         In 2003, Thomas was convicted in Massachusetts state court for armed robbery. Then, in 2012, the United States initiated removal proceedings against Thomas pursuant to section 237(a)(2)(A)(iii) of the INA (8 U.S.C. § 1227(a)(2)(A)(iii)), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Thomas contested removal on the ground that he became a United States citizen in 1999, by operation of the derivative citizenship statute then in effect. The Immigration Judge ("IJ") assigned to Thomas's case rejected that contention and, on October 17, 2012, ordered him removed. The Board of Immigration Appeals ("BIA") affirmed that decision on February 25, 2013, and Thomas was removed to Haiti in April of that year.

         Thomas's current petition is for review of the denial by the BIA of his motion to reopen the proceedings against him. Thomas made that motion after he was arrested on a charge of illegal reentry upon his return to the United States in April 2015.

         Because the motion was filed more than 90 days after the BIA's 2013 removal order, the BIA denied his motion to reopen on timeliness grounds. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing that, subject to limited exceptions, a "motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal"). On appeal, however, the government has expressly disavowed reliance on the time bar in this case and has urged us to reach the merits. We thus deem the government to have waived any timeliness argument and will proceed to the merits of Thomas's citizenship claim. See 8 U.S.C. § 1252(b)(5)(A).

         II.

         Thomas's petition hinges on the proper construction of the derivative citizenship law that was in effect before Thomas turned eighteen years old. That law, former section 321(a) of the INA, provided that:

A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon . . .
(2) The naturalization of the surviving parent if one of the parents is deceased;
. . . if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of . . . the parent naturalized under clause (2) . . . of this subsection, or thereafter begins to reside ...

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