United States Court of Appeals

For the First Circuit

No. 20-1807

JERMAINE ST. AUBYN ROBINSON,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Thompson, and Gelpí,

Circuit Judges.

James R. Tewhey on brief for petitioner.

Brian Boynton, Acting Assistant Attorney General, Civil 

Division, Paul Fiorino, Senior Litigation Counsel, and Kevin J. 

Conway, Trial Attorney, on brief for respondent.

December 28, 2022

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General 

Merrick B. Garland has been substituted for former Attorney General 

William P. Barr.
- 2 -

KAYATTA, Circuit Judge. Petitioner Jermaine St. Aubyn 

Robinson concedes that, unless he is a citizen of the United States 

through derivative citizenship, he is removable as an alien who 

has been convicted of an aggravated felony. Because we determine 

that Robinson has not generated a genuine issue of material fact 

supporting his claim of derivative citizenship, we deny his 

petition for review. 

I.

Briefly, we recite the following undisputed facts. 

Robinson was born in Jamaica in 1982 and was admitted to the United 

States in March 1994. On February 26, 2018, Robinson was convicted 

in Massachusetts state court of possession with intent to 

distribute a Class B controlled substance (cocaine). The United 

States initiated removal proceedings against Robinson in 2019 

based on this conviction. During an August 2019 hearing before an 

Immigration Judge, Robinson argued that he was a U.S. citizen 

because his mother, Novlett Robinson ("Novlett"), became a 

naturalized citizen in 1998 or 1999, before Robinson reached the 

age of eighteen. This contention conflicted with a birth 

certificate produced by the government that listed Conrad Robinson 

("Conrad"), a native of Jamaica who became a naturalized U.S. 

citizen in 2014, and Yvonne Richards ("Yvonne"), a citizen of 

Jamaica, as Robinson's parents. Robinson explained that he did 

not know Yvonne and had always believed Novlett to be his 
- 3 -

"biological mother." 1 However, Robinson was unable to provide any 

competent proof to support his claim that Novlett was his 

biological mother. 

During a second hearing in September 2019, he conceded 

through counsel that "derivative citizenship is not a 

possibility." In January 2020, Robinson accepted an order of 

removal from the Immigration Judge (IJ) and waived appeal to the 

Board of Immigration Appeals (BIA). Robinson subsequently filed 

a pro se appeal to the BIA claiming derivative U.S. citizenship 

based on his assertion that Novlett was his biological mother. 

Robinson's appeal was based on a different birth certificate that 

he obtained from the Jamaican Embassy listing his mother as 

Novlett.2 The BIA dismissed Robinson's appeal on July 16, 2020, 

after finding that the IJ's decision became administratively final 

upon Robinson's January 2020 waiver of appeal. Robinson timely 

petitioned this court for review of the BIA's decision based on 

the assertion that he is a U.S. citizen and, thus, that he cannot 

be deported. 

1 We use the term "biological mother" only because both 

Robinson and the government frame the issue here as whether Novlett 

or Yvonne was Robinson's biological mother. 

2 The government asks that we not consider the second birth 

certificate because it was not included in the administrative 

record. However, our consideration of a claim of citizenship is 

not limited to the administrative record. See, e.g., Thompson v. 

Lynch, 808 F.3d 939, 942 (1st Cir. 2015); Batista v. Ashcroft, 270 

F.3d 8, 13 (1st Cir. 2001). 
- 4 -

II.

This court has jurisdiction to determine whether there 

is a "genuine issue of material fact" that, if resolved in 

Robinson's favor, would support a finding that he is a U.S.

citizen. 8 U.S.C. § 1252(b)(5)(A), (B); Batista v. Ashcroft, 270 

F.3d 8, 12 (1st Cir. 2001). And the government does not assert 

that Robinson's failure to exhaust his claim with a timely appeal 

to the BIA precludes us from making such a determination. See

Rivera v. Ashcroft, 394 F.3d 1129, 113637 (9th Cir. 2005) 

(rejecting contention that one can relinquish citizenship by 

failing to appeal a deportation order), superseded by statute on 

other grounds, REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 

(2005), as recognized in Iasu v. Smith, 511 F.3d 881, 886 (9th 

Cir. 2007). 

Both Robinson and the government agree that 8 U.S.C. 

§ 1432, the statute in effect when Robinson was a minor, governs 

Robinson's claim to derivative U.S. citizenship. Pursuant to this 

statute and as relevant to Robinson's petition, a child born

outside of the United States automatically becomes a citizen if 

one of the below conditions is satisfied while the child is 

unmarried and under the age of eighteen: 

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if 

one of the parents is deceased; or
- 5 -

(3) 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.

8 U.S.C. § 1432(a) (1999), repealed by Child Citizenship Act of 

2000, Pub. L. No. 106-395, § 103(a), 114 Stat. 1631. Robinson 

contends that he is eligible for derivative citizenship because he 

entered the U.S. as a minor child, his biological mother (who he 

claims is Novlett) became a naturalized U.S. citizen prior to his 

eighteenth birthday, and he is (and was) unmarried. Robinson does 

not specify which provision of section 1432(a) he purports to 

satisfy. 

As the government explains, Robinson has not established 

a claim to derivative U.S. citizenship under any of the three 

provisions of section 1432(a). First, Robinson cannot be eligible 

under section 1432(a)(1) because, even if Novlett is his mother 

and even if she was naturalized before he turned eighteen, his 

father, Conrad, was not naturalized until after Robinson turned 

eighteen. Second, Robinson cannot be eligible under section 

1432(a)(2) because he has neither argued nor provided evidence 

that would support a finding that Conrad is deceased, let alone 

that he was deceased before Robinson turned eighteen. Finally, 

Robinson cannot be eligible under section 1432(a)(3) because he 

did not argue or provide evidence that would support a finding 
- 6 -

that "there has been a legal separation of [his] parents" or that 

he "was born out of wedlock and [his] paternity . . . has not been 

established by legitimation." § 1432(a)(3). Thus, Robinson fails 

to generate a genuine issue of material fact that, if resolved in 

his favor, would support a finding of derivative citizenship. 

III.

For the foregoing reasons, we deny Robinson's petition 

for review.