Filed: Mar. 22, 2011
Latest Update: Feb. 21, 2020
Summary: 10-454-ag Nanez Holguin v. Holder BIA Sagerman, IJ A044 464 204 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (
Summary: 10-454-ag Nanez Holguin v. Holder BIA Sagerman, IJ A044 464 204 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W..
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10-454-ag
Nanez Holguin v. Holder
BIA
Sagerman, IJ
A044 464 204
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of March, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 LUIS FERNANDO NANEZ HOLGUIN,
14 Petitioner,
15
16 10-454-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONER: Alexander Arandia, Forest Hills, New
26 York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Emily Anne Radford,
30 Assistant Director; Craig A. Newell,
31 Jr., Trial Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Luis Fernando Nanez Holguin, a native and
6 citizen of Colombia, seeks review of a January 13, 2010
7 decision of the BIA affirming the October 22, 2009 decision
8 of Immigration Judge (“IJ”) Roger Sagerman, finding him
9 removable as an aggravated felon, denying relief from
10 removal, and concluding that he was not a derivative
11 citizen. In re Nanez Holguin, No. A044 464 204 (B.I.A. Jan.
12 13, 2010), aff’g No. A044 464 204 (Immig. Ct. N.Y. City Oct.
13 22, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as the final agency determination. See Shunfu
17 Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
20
562 F.3d 510, 513 (2d Cir. 2009).
21 Because Nanez Holguin does not challenge the agency’s
22 findings that he was convicted of an aggravated felony or
23 that he did not establish his eligibility for relief from
2
1 removal, we review only the agency’s determination that
2 Nanez Holguin is not entitled to derivative citizenship.
3 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545
4 n.7 (2d Cir. 2005).
5 Because Nanez Holguin was more than eighteen years of
6 age at the time the Child Citizenship Act (“CCA”) took
7 effect in February 2001, and because the CCA does not apply
8 retroactively, Nanez Holguin is subject to the derivative
9 citizenship statute as written prior to the CCA, namely
10 Immigration and Nationality Act (“INA”) § 321(a). See
11 Langhorne v. Ashcroft,
377 F.3d 175, 178-79 (2d Cir. 2004).
12 In relevant part, INA § 321(a) provided that “[a] child born
13 outside of the United States of alien parents . . . becomes
14 a citizen of the United States upon . . . [t]he
15 naturalization of the parent having legal custody of the
16 child when there has been a legal separation of the parents
17 . . . if [that] naturalization takes place while such child
18 is under the age of eighteen years . . . [and] is residing
19 in the United States pursuant to a lawful admission for
20 permanent residence.” 8 U.S.C. § 1432(a), repealed by Child
21 Citizenship Act of 2000, Title I, § 103(a), 114 Stat. 1632;
22
Langhorne, 377 F.3d at 177-78.
23
3
1 Although Nanez Holguin claims derivative citizenship
2 under § 321(a)(3), alleging that his parents had a de facto
3 legal separation and that he was in the legal custody of his
4 father at the time that his father naturalized in 1995, he
5 does not allege that his parents undertook any formal act
6 that altered their marital relationship. See Brissett v.
7 Ashcroft, 363 F.3d 130, 132 (2d Cir. 2004) (holding that INA
8 § 321’s requirement of legal separation “is satisfied only
9 by a formal act which, under the laws of the state or nation
10 having jurisdiction of the marriage, alters the marital
11 relationship either by terminating the marriage (as by
12 divorce), or by mandating or recognizing the separate
13 existence of the marital parties”). Thus, his parents were
14 not legally separated for purposes of former INA § 321 and
15 he did not acquire derivative citizenship. See
id. at 133-
16 37; see also Lewis v. Gonzales,
481 F.3d 125, 131 (2d Cir.
17 2007).
18 Although Nanez Holguin contends that the formal legal
19 separation requirement infringes on his parents’ First
20 Amendment rights to freely practice their Roman Catholic
21 religion, which does not recognize legal separations, he
22 does not have standing to raise a claim of a violation of
23 his parents’ constitutional rights, and his naturalization
4
1 was not dependent on his parents obtaining a legal
2 separation, as his father could have submitted a
3 naturalization petition on his behalf while he was a minor.
4 See Nehme v. INS, 252 F.3d 415, 430 n.18 (2d Cir. 2001).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
5
