Filed: Nov. 15, 2019
Latest Update: Mar. 03, 2020
Summary: 17-2031 Cartagena v. Barr BIA A030 958 643 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 “SU
Summary: 17-2031 Cartagena v. Barr BIA A030 958 643 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 “SUM..
More
17-2031
Cartagena v. Barr
BIA
A030 958 643
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 TO 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of November, two thousand nineteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 REENA RAGGI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JUAN ANTONIO CARTAGENA, AKA JAY
14 GONZALES, AKA STEVEN GONZALEZ,
15 Petitioner,
16
17 v. 17-2031
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: E. Abel Arcia, Jackson Heights,
25 NY.
26
27 FOR RESPONDENT: Chad A. Readler, Acting Assistant
28 Attorney General; Jessica A.
29 Dawgert, Senior Litigation
30 Counsel; Sara J. Bayram, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
33 Department of Justice, Washington,
34 DC.
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 Juan Antonio Cartagena, a native and citizen
6 of the Dominican Republic, seeks review of a BIA decision
7 denying his motion to reopen his removal proceedings. See
8 In re Juan Antonio Cartagena, No. A 030 958 643 (B.I.A. June
9 6, 2017). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case, which
11 we reference only as relevant to Cartagena’s derivative
12 citizenship claim.
13 Cartagena was born in the Dominican Republic in 1968 to
14 unmarried Dominican citizens. His father relocated to the
15 United States and, in 1973, Cartagena entered this country as
16 a lawful permanent resident. Cartagena’s father, his
17 custodial parent at that time, naturalized as a U.S. citizen
18 in 1979. His mother naturalized in 1996, well after
19 Cartagena turned 18.
20 We have jurisdiction to review Cartagena’s derivative
21 citizenship claim notwithstanding that we generally lack
22 jurisdiction to review orders of removal based on felony
23 convictions, or the BIA’s discretionary decision to decline
2
1 sua sponte reopening. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil
2 v. Sessions, 851 F.3d 184, 186 n.1 (2d Cir. 2017); Ali v.
3 Gonzales,
448 F.3d 515, 518 (2d Cir. 2006). “We review the
4 question of derivative citizenship de novo where, as here,
5 the petitioner claims to be a national of the United States
6 and the record presents no genuine issue of material fact
7 about the petitioner’s nationality.” Gil v. Sessions,
851
8 F.3d at 186 (internal quotation marks omitted); see also 8
9 U.S.C. § 1252(b)(5)(A).
10 I. Derivative Citizenship
11 Pursuant to the law of the case doctrine, we decline to
12 revisit whether Cartagena meets the requirements for
13 derivative citizenship under former 8 U.S.C. § 1432(a). See
14 Cartagena v. Sessions, No. 16-3010 (2d Cir. Feb. 14,
15 2017)(reasoning that Cartagena, “who was born out of wedlock,
16 did not automatically derive citizenship from his father
17 under former 8 U.S.C. § 1432(a) because his mother was not
18 naturalized or deceased while he was under 18”); Starbucks
19 Corp. v. Wolfe’s Borough Coffee, Inc.,
736 F.3d 198, 208 (2d
20 Cir. 2013) (explaining that, while “not binding,” law of the
21 case doctrine forecloses relitigation of issues decided by
22 prior panel absent “cogent and compelling reasons such as an
23 intervening change of controlling law, the availability of
3
1 new evidence, or the need to correct a clear error or prevent
2 manifest injustice” (internal quotation marks omitted)).
3 II. Equal Protection
4 That does not end our inquiry, however, because Cartagena
5 also challenges the constitutionality of 8 U.S.C. §
6 1432(a)(3), under which he sought derivative citizenship.
7 That statutory provision states, in relevant part, that a
8 naturalized mother may automatically confer U.S. citizenship
9 to her child “if the child was born out of wedlock and the
10 paternity of the child has not been established by
11 legitimation.” 8 U.S.C. § 1432(a)(3). Cartagena asserts
12 that this provision allowing an unwed mother to confer
13 citizenship—but not an unwed father—is a gender-based
14 classification that violates equal protection. This court,
15 however, has already held that § 1432(a)(3) does not violate
16 equal protection, see Pierre v. Holder, 738 F.3d 39, 48, 50–
17 58 (2d Cir. 2013), and we are bound by that “decision until
18 it is overruled either by this Court sitting en banc or by
19 the Supreme Court,” Doscher v. Sea Port Grp. Sec., LLC, 832
20 F.3d 372, 378 (2d Cir. 2016).
21 Cartagena argues that the Supreme Court’s decision in
22 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017),
23 overrules Pierre. It does not. The statute at issue in
4
1 Morales-Santana, 8 U.S.C. § 1401(a)(7), required an unwed
2 citizen father to reside in the United States for ten years
3 prior to the birth of his child, whereas the statute required
4 only one year of pre-birth residency for an unwed mother to
5 pass citizenship to her child, see Morales-Santana, 137 S.
6 Ct. at 1686. The Supreme Court held that this difference
7 violated equal protection because it discriminated on the
8 basis of gender and relied on an outdated and unjustifiable
9 understanding of gender roles. See id. at 1690-98.
10 Section 1432(a), however, does not rely on outdated
11 stereotypes. Rather, it distinguishes between circumstances
12 where a minor has two known and living parents and where a
13 minor has only one parent (either an unwed mother and no
14 paternal legitimation or a deceased parent). See Lewis v.
15 Gonzales,
481 F.3d 125, 131 (2d Cir. 2007); cf. Morales-
16
Santana, 137 S. Ct. at 1690-94 (distinguishing laws based on
17 outdated stereotypes from those based on “the parent’s filial
18 tie to the child”). Accordingly, Morales-Santana does not
19 implicate § 1432(a)(3), and Pierre controls.
20
21
22
23
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
6
