Luis Gonzalez-Lupercio v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [14-60863 Affirmed ] Judge: JES , Judge: FPB , Judge: JWE Mandate pull date is 10/15/2015 [14-60863]

Case: 14-60863

Document: 00513166597

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Date Filed: 08/24/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60863
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
LUIS EDUARDO GONZALEZ-LUPERCIO,
Petitioner

August 24, 2015
Lyle W. Cayce
Clerk

v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 930 920
Before SMITH, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM: *
Luis Eduardo Gonzalez-Lupercio (Gonzalez), a native and citizen of
Mexico born on March 14, 1987, lived in this country with his father, who had
become a naturalized citizen in January 1997. Gonzalez did not obtain lawful
permanent resident status until October 6, 2005, just over six months after he
turned eighteen years old. Several years later he was convicted in federal court
of distribution of a controlled substance. Subsequently, Gonzalez was charged

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his drugtrafficking conviction was deemed an aggravated felony for purposes of 8
U.S.C. § 1101(a)(43)(B). Gonzalez admitted all of the allegations against him
except alienage; he argued that he had automatically acquired citizenship via
his naturalized father under the Child Citizenship Act of 2000, 8 U.S.C.
§ 1431(a). He also conceded, that, if he could not prove his claim to citizenship,
his prior conviction rendered him removable. Gonzalez moved to terminate the
removal proceedings based on his claim to U.S. citizenship. The immigration
judge (IJ) found that Gonzalez had not established his claim to U.S.
citizenship, denied the motion to terminate, and ordered Gonzalez removed.
Gonzalez now seeks review of the Board of Immigration Appeals (BIA) decision
dismissing his appeal from the IJ’s denial of his motion to terminate the
removal proceedings and the denial of his claim to derivative citizenship
through his father.
This court normally reviews the BIA’s legal conclusions de novo.
Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012). However the
legal issue here is the agency’s interpretation of a statute, one that Gonzalez
finds to be ambiguous and that the BIA found to be plain. Further, the BIA’s
decision in this case is an unpublished one issued by a single member, so the
weight the decision is given “‘depend[s] upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it power to persuade, if
lacking power to control.’” Dhuka v. Holder, 716 F.3d 149, 154-56 (5th Cir.
2013) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
Under the version of the derivative citizenship statute applicable to
Gonzalez, a child born outside of the United States automatically becomes a
citizen of the United States “when all of the following conditions have been

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fulfilled:” (1) one of the child’s parents is a citizen of the United States, whether
by birth or naturalization, “(2) The child is under the age of eighteen
years[,]”and “(3) The child is residing in the United States in the legal and
physical custody of the citizen parent pursuant to a lawful admission for
permanent residence.” § 1431(a)(1)-(3) (emphasis added). Gonzalez turned
eighteen just over six months before he first obtained legal status. Since
Gonzalez failed to establish that he was admitted for lawful permanent
residence while under the age of eighteen, the BIA did not err in finding that
he did not satisfy the statutory requirements for derivative citizenship. Id.
§ 1431(a)(3). We have previously addressed this issue and concluded as much
in Pena v. Holder, 521 F. App’x 347, 348 (5th Cir. 2013). Although Pena, as an
unpublished decision has no precedential value, it is persuasive authority. See
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
Accordingly, Gonzalez’s petition for review is DENIED.

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