Case: 13-60054       Document: 00512453798         Page: 1     Date Filed: 11/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 26, 2013
                                     No. 13-60054
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JENNSEY JOSUE ZARZUELA,

                                                  Petitioner

v.

ERIC H. HOLDER. JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A044 821 167


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       On September 13, 1994, at the age of 17, Jennsey Josue Zarzuela, a native
and citizen of the Dominican Republic, entered the United States as a lawful
permanent resident. After he pleaded guilty to conspiracy to possess MDMA
with intent to distribute and possession of MDMA with intent to distribute in
May 2004, the Department of Homeland Security charged that Zarzuela was
removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i). Zarzuela seeks
review of the Board of Immigration Appeals’ decision dismissing his appeal of an

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 13-60054

Immigration Judge’s denial of his claim to derivative citizenship through his
adoptive father, Santos Martinez. Absent derivative citizenship, Zarzuela does
not dispute that he is removable.
      Although we generally have jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal, Section 1252(a)(2)(C) deprives us of jurisdiction to review
a final order of removal entered against an alien convicted of certain criminal
offenses, including aggravated felonies such as Zarzuela’s offenses.            See
Ogunfuye v. Holder, 

, 307 (5th Cir. 2010). However, in such cases,
we retain limited jurisdiction to review our own jurisdiction, constitutional
claims, or questions of law. § 1252(a)(2)(D); see Marquez-Marquez v. Gonzales,

, 554, 560-61 (5th Cir. 2006). The question of derivative citizenship
is a legal issue that we review de novo. 

.
      Currently, claims of derivative citizenship are governed by the Child
Citizenship Act of 2000 (CCA), Pub. L. No. 106-395, 114 Stat. 1631, which took
effect on February 27, 2001. ( codified as 8 U.S.C. § 1431); see 

n.3. The CCA does not apply in this case because Zarzuela was
over the age of eighteen when it took effect and it does not apply retroactively.
See 

n.3. Zarzuela must establish his claim
of derivative citizenship under the immigration statutes in effect at the time he
allegedly fulfilled the last requirement for derivative citizenship. See Matter of
Nwozuzu, 24 I. & N. Dec. 609, 611 n.3 (BIA 2008).
      Under the immigration statute applicable to Zarzuela, he cannot qualify
for derivative citizenship unless he “[wa]s residing in the United States at the
time of naturalization of [his] adoptive parent or parents, in the custody of his
adoptive parent or parents, pursuant to a lawful admission for permanent
residence.” 8 U.S.C. § 1432(b) (West 1990). The undisputed evidence shows that
Martinez became a naturalized citizen on May 7, 1993, prior to Zarzuela’s
admission to the United States for permanent residence. Zarzuela has not met
his burden of showing that he meets the statutory requirements for derivative

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                               No. 13-60054

citizenship. Bustamante-Barrera v. Gonzales, 

, 394-95 (5th Cir.
2006).
     Accordingly, the petition for review is DENIED.




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