Eric H. Holder, Jr., is automatically substituted as the respondent in this case pursuant 1

to Federal Rule of Appellate Procedure 43(c)(2).

08-4862-ag

Poole v. Holder

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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 

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.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 29 day of January, two thousand and ten. th

Present: RALPH K. WINTER,

JOHN M. WALKER, JR.,

ROSEMARY S. POOLER,

Circuit Judges.

_____________________________________________________

RODWELL ARLIE ANTHONY POOLE,

Petitioner,

 -v- (08-4862-ag)

ERIC H. HOLDER, JR., ATTORNEY GENERAL,1

Respondent.

 

Appearing for Petitioner: Jennifer Oltarsh, Oltarsh & Associates, P.C., New York, NY

 

Appearing for Respondent: Jem Sponzo, Office of Immigration Litigation, United States

Department of Justice, Washington D.C.

Petition for review of an order of the Board of Immigration Appeals (“BIA”).
 The government has presented a naturalization application that purports to establish that 2

petitioner’s mother applied for naturalization after petitioner’s eighteenth birthday, making him

ineligible for derivative citizenship even were the BIA to possess nunc pro tunc power to grant it. 

As the naturalization application is not in the administrative record, we do not consider it. See 8

U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the petition only on the

administrative record on which the order of removal is based.”). 

2

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

Petitioner Rodwell Poole (“petitioner” or “Poole”) files this petition for review of a

September 16, 2008 decision and order of the Board of Immigration Appeals (“BIA”) that

dismissed his claim of derivative United States citizenship. The BIA issued its decision and

order on remand from the Second Circuit, which previously found Poole’s petition for review

time-barred except with respect to his claim of derivative citizenship. See Poole v. Mukasey,

522 F.3d 259 (2d Cir. 2008).

Petitioner argues that the BIA incorrectly held that it does not have the power to grant

derivative citizenship nunc pro tunc. Even assuming arguendo that the BIA does have this power,

however, petitioner has presented no evidence that the delay in processing his mother’s

naturalization application was “untoward” or that his mother took any action to expedite the

application in light of petitioner’s age. See also Calix-Chavarria v. Att’y General, 182 Fed.

Appx. 72, 76 (3d Cir. 2006) (noting circumstances in which it might be appropriate to grant

derivative citizenship nunc pro tunc). We therefore DENY the petition for review. The 2

previously granted stay of deportation is VACATED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk