Bueno Gil v. Sessions
OPINION, denying the petition for review, by JMW, PWH, DC, C.JJ., FILED. [15-3134]
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Gil v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
(Argued: October 31, 2016
Decided: March 17, 2017)
Docket No. 15‐3134‐ag
JULY RAFAEL BUENO GIL,
JEFFERSON B. SESSIONS III, United States Attorney General,
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
WALKER, HALL, and CHIN, Circuit Judges.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Jefferson B. Sessions III is substituted for former Attorney General Loretta E.
Lynch as respondent.
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Petition for review of a decision of the Board of Immigration
Appeals aﬃrming the decision of an Immigration Judge ﬁnding petitioner
ineligible for derivative citizenship and denying his motion to terminate removal
JOSHUA E. BARDAVID, New York, New York, for
LISA M. DAMIANO, Trial Attorney, Terri J.
Scadron, Assistant Director, Oﬃce of
Immigration Litigation, Benjamin C. Mizer,
Principal Deputy Assistant Attorney
General, Civil Division, United States
Department of Justice, Washington, D.C.,
CHIN, Circuit Judge:
Petitioner July Rafael Bueno Gil (ʺGilʺ) seeks review of a September
10, 2015 decision of the Board of Immigration Appeals (ʺBIAʺ) aﬃrming the
decision of an Immigration Judge (ʺIJʺ) ﬁnding him ineligible for derivative
citizenship and denying his motion to terminate removal proceedings. Gil was
born in the Dominican Republic and was admitted to the United States as a
lawful permanent resident. His parents never married. Gil contends that he
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became a U.S. citizen derivatively when his father was naturalized in 1980, when
Gil was eleven years old. The IJ and the BIA determined that Gil was not a
ʺchildʺ eligible for derivative citizenship because he was not ʺlegitimatedʺ within
the meaning of the Immigration and Nationality Act (the ʺINAʺ). We agree and,
accordingly, we dismiss the petition for review.
The facts are undisputed. Gil was born out of wedlock on December
6, 1968 in the Dominican Republic to two Dominican citizens. His parents never
married. In December 1974, his father appeared before a State Civil Oﬃcial of
the National District of the Dominican Republic, publicly acknowledged Gil as
his biological son, and declared paternity over him. Gilʹs mother died in January
1976. Gil entered the United States in February 1978, when he was nine years
old, as a lawful permanent resident and lived with his father.
Gilʹs father became a naturalized U.S. citizen in November 1980,
when Gil was eleven years old. Gil thereafter received a Certiﬁcate of
Citizenship on the basis that he derived citizenship as a result of his fatherʹs
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Gil was convicted in New York state court of ﬁrst‐degree robbery in
January 1987 and was convicted in federal court of a controlled substance oﬀense
in August 1995. In September 2010, U.S. Citizenship and Immigration Services
(ʺUSCISʺ) determined that Gilʹs Certiﬁcate of Citizenship was unlawfully or
fraudulently obtained because he was not a qualifying ʺchildʺ under the INAʹs
requirements for derivative citizenship and, as a result, it canceled his Certiﬁcate
of Citizenship. The Department of Homeland Security instituted removal
proceedings, served Gil with a Notice to Appear, and charged him as an alien
removable under sections 237(a)(2)(A)(iii) and (B)(i) of the INA, 8 U.S.C.
§§ 1227(a)(2)(A)(iii) and (B)(i), based on his convictions.
On November 18, 2013, the IJ rejected Gilʹs claim to derivative
citizenship through his fatherʹs naturalization on the basis that Gil did not
ʺlegitimateʺ under Dominican or New York law before reaching the age speciﬁed
in the INA. The IJ found him removable as charged, denied his motion to
terminate the removal proceedings, and ordered him removed to the Dominican
Republic. On September 10, 2015, the BIA agreed that Gil did not become a
legitimated child before turning sixteen years old, aﬃrmed the IJʹs ﬁnding that
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Gil did not derive citizenship through his father, and aﬃrmed the denial of the
motion to terminate removal proceedings.
This petition followed.
We review the question of derivative citizenship de novo where, as
here, ʺthe petitioner claims to be a national of the United Statesʺ and the record
presents ʺno genuine issue of material fact about the petitionerʹs nationality.ʺ
Morales‐Santana v. Lynch, 804 F.3d 520, 525 (2d Cir. 2015) (quoting 8 U.S.C.
To determine whether an alien obtained derivative citizenship
through a parentʹs naturalization, we look to ʺthe law in eﬀect when [petitioner]
fulﬁlled the last requirement for derivative citizenship.ʺ Poole v. Mukasey, 522
F.3d 259, 264 (2d Cir. 2008) (alteration in original) (quoting Ashton v. Gonzales, 431
F.3d 95, 97 (2d Cir. 2005)).
While we generally lack jurisdiction to review final orders of removal
against aliens who are removable due to aggravated felony convictions, 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to review constitutional claims and questions of
law, id. § 1252(a)(2)(D). Thus, we have jurisdiction to consider Gilʹs claim to derivative
citizenship in this case, where there are no disputed facts. See id. § 1252(b)(5)(A)
(requiring courts to decide a nationality claim if the petitioner claims to be a national
and there are no disputed material facts).
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In 1980, when Gilʹs father became a naturalized citizen, 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 fulfillment of the following conditions:
The naturalization of both parents; or
The naturalization of the surviving parent if one of the parents
is deceased; or
The naturalization of the parent having legal custody of the
child when there has been a legal separation of the parents or
the naturalization of the mother if the child was born out of
wedlock and the paternity of the child has not been
established by legitimation; and if
Such naturalization takes place while such child is under the
age of eighteen years; and
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 last naturalized under clause (1)
of this subsection, or the parent naturalized under clause (2)
or (3) of this subsection, or thereafter begins to reside
permanently in the United States while under the age of
8 U.S.C. § 1432(a), repealed by Child Citizenship Act of 2000, Pub. L. 106‐395,
§ 103, 114 Stat. 1631, 1632 (2000); see also Smart v. Ashcroft, 401 F.3d 119, 122 (2d
Cir. 2005). The parties agree that former § 321(a) applies here. See Smart, 401
F.3d at 122 (ʺThe CCA changes do not benefit [petitioner] because the CCA is not
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retroactive, and [petitioner] was no longer under eighteen years old upon its
enactment.ʺ (internal citation omitted)).
Section 101(c)(1) of the INA deﬁnes the term ʺchildʺ as
an unmarried person under twenty‐one years of age and includ[ing] a
child legitimated under the law of the childʹs residence or domicile, or
under the law of the fatherʹs residence or domicile, . . . if such legitimation
. . . takes place before the child reaches the age of 16 years . . . , and the
child is in the legal custody of the legitimating . . . parent . . . at the time of
such legitimation . . . .
8 U.S.C. § 1101(c)(1). The statute ʺmake[s] clear, for derivative citizenship
purposes, [that] a person born out of wedlock is considered a ʹchildʹ of his United
States citizen parent or parents only if he was ʹlegitimatedʹ under the law of his
own residence or domicile (or that of his father) before turning 16.ʺ Matter of
Cross, 26 I. & N. Dec. 485, 487 (BIA 2015) (emphasis added).
Although the INA does not deﬁne the term ʺlegitimated,ʺ the BIA
has interpreted it ʺto refer to a child born out of wedlock who has been accorded
legal rights that are identical to those enjoyed by a child born in wedlock.ʺ De
Los Santos v. Immigration & Naturalization Serv., 690 F.2d 56, 58 (2d Cir. 1982)
(citation omitted); see also In re Cabrera, 21 I. & N. Dec. 589, 591 (BIA 1996) (ʺIn
prior precedent decisions, we have deﬁned legitimation as the act of putting a
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child born out of wedlock in the same legal position as a child born in wedlock.ʺ)
(citation omitted). The BIA has also held that
a person born abroad to unmarried parents can qualify as a legitimated
ʹchildʹ under section 101(c)(1) of the Act if he or she was born in a country
or State that has eliminated all legal distinctions between children based
on the marital status of their parents or has a residence or domicile in such
a country or State.
Cross, 26 I. & N. Dec. at 485‐86.
Gilʹs claim to derivative citizenship turns on whether he qualiﬁed as
a legitimated ʺchildʺ within the meaning of § 101(c)(1). The issue on appeal is
whether, before he reached the statutory age of sixteen years old, Gil was
ʺlegitimatedʺ under the laws of the Dominican Republic or New York, i.e.,
whether in that time frame Dominican or New York law had eliminated all legal
distinctions between children born in and out of wedlock. The burden falls on
Gil to show he met this requirement. See Grant v. U.S. Depʹt of Homeland Sec., 534
F.3d 102, 105 (2d Cir. 2008) (ʺ[A]n alien born out of wedlock . . . must show, at a
minimum, that he has been legitimated in order to achieve citizenship based on
his fatherʹs citizenship.ʺ); see also Berenyi v. Dist. Dir., Immigration & Naturalization
Serv., 385 U.S. 630, 637 (1967) (ʺ[I]t has been universally accepted that the burden
is on the alien applicant to show his eligibility for citizenship in every respect.ʺ).
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Gil concedes he was not a legitimated child under Dominican law at
the time his father became a naturalized citizen in 1980. He argues instead that,
due to the retroactive application of a subsequently enacted law, the Dominican
Republic now treats him as gaining legitimating status at the time of his birth,
well before his father received naturalized citizenship. We are not persuaded.
In 1980, the Dominican law in eﬀect accorded diﬀerent succession
rights to children born out of wedlock based on whether their parents later
married each other. See De Los Santos, 690 F.2d at 58 (referring to Law 985 of
Aug. 1, 1945, art. 1). Under that law, a child born out of wedlock to unmarried
parents was entitled to only half the inheritance share attributable to a child born
in wedlock or a child born out of wedlock to subsequently married parents. See
id. (describing Law 985, art. 10).
In 1994, the Dominican Republic enacted the Code for the Protection
of Children (the ʺCodeʺ), which ʺchanged the Dominican law on parentage and
ﬁliation to eliminate all legal distinctions between children born in wedlock and
those born out of wedlock.ʺ In re Martinez‐Gonzalez, 21 I. & N. Dec. 1035, 1038
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(BIA 1997) (describing the ʺenactment of Ley No. 14‐19 que crea el Codigo para la
Proteccion de Ninos, Ninas y Adolescentes Gaceta Official, Apr. 25, 1994
(enacted Apr. 22, 1994) (hereinafter Code for the Protection of Children)ʺ
(alteration omitted)). The new law became effective on January 1, 1995 and ʺwas
intended to apply to all present and future legal situations and to legal situations
that were established and created before the promulgation of the law and
continue in existence after such promulgation.ʺ Id. (internal quotation marks,
citation, and ellipses omitted).
Gil asserts that the Code applied retroactively to legitimate all
children born out of wedlock, even those who reached adulthood prior to the
enactment of the new law. In support, he presents (1) two legal opinions by the
Central Electoral Board of the Dominican Republic, which he describes as a
judicial body in the Dominican Republic, applying the new law specifically to
him and (2) a legal opinion by an expert in Dominican law stating that, due to the
new law, the Dominican Republic has always recognized Gil as a legitimated
child. Gil therefore concludes that he was a ʺchildʺ within the meaning of
§ 101(c)(1) because he was ʺlegitimatedʺ under Dominican law at the time of his
fatherʹs naturalization, by virtue of the Codeʹs retroactive effect.
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Section 101(c)(1), however, explicitly requires that the legitimation
occur ʺbefore the child reaches the age of 16 years.ʺ 8 U.S.C. § 1101(c)(1). The
legitimizing act at issue here was the enactment of the Code, a law that became
effective well after Gilʹs sixteenth birthday. See Martinez‐Gonzalez, 21 I. & N. Dec.
at 1038 (holding, with respect to the analogous provision at § 101(b)(1)(C), that
ʺ[t]he legitimizing act in the case of Dominican law could be either the change in
the law itself or the acknowledgement of paternityʺ). Because Gil did not gain
legitimated status under the new law before he turned sixteen years old, he is not
a legitimated child within the plain meaning of § 101(c)(1). See id. at 1038‐39
(concluding that children who reached the statutory age limit ʺprior to January 1,
1995, the effective date of the Code for the Protection of Children, and who were
not legitimated under the former Dominican law,ʺ could not satisfy the
requirements in § 101(b)(1)(C) because the legitimating act ‐‐ the change in
Dominican law ‐‐ came too late); see also Anderson v. Holder, 673 F.3d 1089, 1100
(9th Cir. 2012) (ʺ[W]hen legal distinctions are eliminated between children born
to married parents and those born out of wedlock, the children born out of
wedlock are deemed to be legitimated as of the date the laws are changed.ʺ
(internal quotation marks and citation omitted)).
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Gilʹs argument, rejected by the IJ and BIA, that the new Dominican
law treats his legitimation as occurring at the time of birth is inapposite because
§ 101(c)(1) does not incorporate Dominican law in setting forth the timing
requirement. See 8 U.S.C. § 1101(c)(1) (deﬁning ʺchildʺ as including a child
legitimated under the law of the childʹs or fatherʹs residence or domicile ʺif such
legitimation . . . takes place before the child reaches the age of 16 yearsʺ). Rather,
Gilʹs legitimation took place on January 1, 1995, when the Code took eﬀect, and
when he was twenty‐six years old.
Accordingly, Gil was not a ʺchild,ʺ as defined in § 101(c)(1), based on
the Code because the elimination of legal distinctions between children born in
and out of wedlock under Dominican law did not occur before his sixteenth
New York Law
Nor did Gil qualify as a ʺchildʺ under § 101(c)(1) based on New York
law, which distinguishes between children born in and out of wedlock for
inheritance purposes. See N.Y. Est. Powers & Trusts Law § 4‐1.2(b) (McKinney
2010) (describing paternity conditions under which non‐marital children are
treated as marital children with respect to inheritance rights); see also Lalli v. Lalli,
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439 U.S. 259, 272‐73 (1978) (holding that § 4‐1.2 bars children born out of
wedlock, but not those born in wedlock, from exercising inheritance rights if they
lack proper evidence of paternity). Gil does not identify any legal authority
suggesting that New York has eliminated all legal distinctions between children
based on the marital status of their parents. See Cross, 26 I. & N. Dec. at 485‐86.
Accordingly, Gil was not a legitimated ʺchildʺ as the term is deﬁned
in § 101(c)(1) and used in former § 321(a), and he therefore was not eligible under
the INA for derivative citizenship through his fatherʹs naturalization.
For the foregoing reasons, the petition for review is DENIED.
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