FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
F. Gelfman, with whom The Law Offices of Rhonda F. Gelfman,
P.A., were on brief, for petitioner.
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.
Kayatta, Barron, and Stahl, Circuit Judges.
BARRON, Circuit Judge.
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.
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.
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. 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.
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.
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
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.
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).
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