17-2565 

Spaulding v. Sessions 

BIA 

Straus, IJ 

A041 353 795 

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.

At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

5th day of October, two thousand eighteen. 

PRESENT: 

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON, 

Circuit Judges,

GEOFFREY W. CRAWFORD,*

District Judge. 

_____________________________________ 

MARLON DONOVAN SPAULDING, 

Petitioner, 

v. 17-2565 

 

JEFFERSON B. SESSIONS III, UNITED 

STATES ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER: Justin Conlon, Hartford, CT. 

 

 

* Chief Judge Geoffrey W. Crawford, of the United States District 

Court for the District of Vermont, sitting by designation.
2

FOR RESPONDENT: Marina C. Stevenson, Trial Attorney (Chad 

A. Readler, Acting Assistant Attorney 

General; Douglas E. Ginsburg, Assistant 

Director; Paul Fiorino, Senior Litigation 

Counsel, on the brief), Office of 

Immigration Litigation, United States 

Department of Justice, Washington, DC. 

 

 UPON DUE CONSIDERATION of this petition for review of a 

decision of the Board of Immigration Appeals (“BIA”), it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review is 

DENIED. 

 Petitioner Marlon Donovan Spaulding (“Marlon”1) seeks review 

of a July 27, 2017, decision of the BIA affirming the September 

28, 2016, decision of an Immigration Judge (“IJ”) denying Marlon’s 

motion to terminate removal proceedings. The IJ ruled that Marlon 

had not derived U.S. citizenship from his mother under former 

Immigration and Nationality Act (“INA”) § 321(a), 8 U.S.C. 

§ 1432(a). In re Marlon Donovan Spaulding, No. A041 353 795 

(B.I.A. July 27, 2017), aff’g No. A041 353 795 (Immig. Ct. Hartford 

Sept. 28, 2016). We assume the parties’ familiarity with the 

underlying facts and procedural history. 

 Under the circumstances of this case, we have considered both 

the IJ’s and the BIA’s opinions “for the sake of completeness.” 

 

1 We refer to petitioner by his first name, Marlon, to avoid 

confusion with his brother, who has the same last name. 
3

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006). Although our jurisdiction is limited because Marlon was 

ordered removed for an aggravated felony offense, we retain 

jurisdiction to review a claim of citizenship. See 8 U.S.C. 

§ 1252(a)(2)(C), (D); see also Duarte-Ceri v. Holder, 630 F.3d 83, 

87 (2d Cir. 2010); Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 

2005) (“If [petitioner] is a United States citizen, then 

§ 1252(a)(2)(C) cannot bar his petition.”). We consider such 

claims de novo. See Jaen v. Sessions, 899 F.3d 182, 185-86 (2d 

Cir. 2018); see also Pierre v. Holder, 738 F.3d 39, 47 (2d Cir. 

2013). 

 If we “find[] from the pleadings and affidavits that no 

genuine issue of material fact about the petitioner’s nationality 

is presented, [we] . . . decide the nationality claim.” 8 U.S.C. 

§ 1252(b)(5)(A). But, if we “find[] that a genuine issue of 

material fact about the petitioner’s nationality is presented,” we 

must transfer the proceeding to the appropriate district court for 

a new hearing on the claim. Id. § 1252(b)(5)(B). 

 In determining whether an alien has obtained derivative 

citizenship, we apply the law in effect at the time the last 

requirement for derivative citizenship is purportedly fulfilled. 

See Ashton, 431 F.3d at 97. Therefore, because Marlon turned 18 
4

in 1994, he could only derive citizenship under former INA 

§ 321(a), 8 U.S.C. § 1432(a), which was in effect until 2001. See 

Immigration and Nationality (McCarran-Walter) Act, Pub. L. No. 

82-414, ch. 477, 66 Stat. 163 (1952) (codified as amended at 8 

U.S.C. § 1101 et seq.); see also Child Citizenship Act of 2000, 

Pub. L. No. 106-395, § 103, 114 Stat. 1631 (repealing § 321 of the 

INA). Prior to its repeal, § 1432 provided that: 

(a) A child born outside of the United States of alien 

parents . . . becomes a citizen of the United States 

upon fulfillment of the following conditions: 

(1) The naturalization of both parents; or 

(2) The naturalization of the surviving parent if one 

of the parents is deceased; or 

(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; and if 

(4) Such naturalization takes place while such child is 

under the age of eighteen years; and 

(5) 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 eighteen years. 

“[F]or a child to have qualified for automatic citizenship under 
5

§ 1432(a), the conditions listed in one of the first three 

subsections must have been fulfilled, and both the conditions 

listed in the last two subsections must have been 

fulfilled . . . .” Pierre, 738 F.3d at 45. 

 It is uncontested that Marlon satisfied subsections (4) and 

(5): his mother naturalized while he was under the age of 18 and 

he was residing lawfully in the United States at that time. 

Subsections (1) and (2) do not apply to Marlon because his father 

is living and naturalized after Marlon turned 18. Thus, the only 

issue is whether Marlon satisfies subsection (3). 

 Subsection (3) has two clauses, only one of which must be 

satisfied. The first requires the “naturalization of the parent 

having legal custody of the child when there has been a legal 

separation of the parents.” The second requires “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.” Only the second “legitimation” clause is relevant 

here because Marlon does not contend that his parents legally 

separated.2

 

2 The BIA noted in its opinion that Marlon may have made some 

argument in his district court case (seeking review of the denial 

of his citizenship claim) that his parents were legally separated 

at the time of his mother’s naturalization, which would bring him 

within the first prong of subsection (3). CAR 4 (BIA Decision); 
6

 For purposes of derivative citizenship, whether an alien 

father has legitimated a child born out of wedlock is determined 

by looking to the domestic relations laws of the child’s native 

country. See Poole v. Mukasey, 522 F.3d 259, 265 n.2 (2d Cir. 

2008) (“Legitimacy is determined by the law of the country in which 

[petitioner] was born . . . .”). “[A] child born out of wedlock 

in Jamaica . . . [claiming derivative citizenship under former 

§ 1432(a) is] the ‘legitimated’ child of his biological father 

only upon proof that the [father] was married to the child’s 

biological mother at some point after the child’s birth.” In re 

Hines, 24 I. & N. Dec. 544, 548 (B.I.A. 2008), overruled on other 

grounds by In re Cross, 26 I. & N. Dec. 485, 490–91 (B.I.A. 2015); 

see also Legitimation Act of Jamaica § 2 (June 3, 1909), available 

at http://moj.gov.jm/laws/legitimation-act. 

 Marlon argues that, under BIA precedent, he was not required 

to satisfy in any particular order the relevant factors——i.e., his 

mother’s naturalization, his birth out of wedlock, and his lack of 

legitimation——so long as he satisfied them all at any point before 

 

see Spaulding v. Mayorkas, 725 F. Supp. 2d 303, 310-11 (D. Conn. 

2010). However, Marlon did not make any such representations 

before the IJ or BIA, nor has he done so before this Court. 

Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (“To 

preserve an issue for judicial review, the petitioner must first 

raise it with specificity before the BIA.”). 
7

he turned 18. As support, he cites In re Douglas, 26 I. & N. Dec. 

197 (B.I.A. 2013), In re Baires-Larios, 24 I. & N. Dec. 467 (B.I.A. 

2008), and In re Fuentes-Martinez, 21 I. & N. Dec. 893 (B.I.A. 

1997). Marlon’s reliance on these cases is misplaced, because 

they all concern the first clause of subsection (3); his case is 

governed by the second clause. And, unlike the first clause, 

which uses the ambiguous “when,” the second clause uses the word 

“if,” which is commonly used to introduce a conditional clause. 

See Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 

324, 327 (2d Cir. 2007) (“[S]tatutory analysis necessarily begins 

with the plain meaning of a law’s text and, absent ambiguity, will 

generally end there.”) (internal quotation marks omitted); see

also Merriam Webster (online ed.) (defining “if” as “in the event 

that” and “on condition that”). Further, we have previously read 

the legitimation clause to require that petitioners born out of 

wedlock have not been legitimated at the time of the mother’s 

naturalization, rather than at any time before age 18, in order to 

derive citizenship. See, e.g., Grant v. Dep’t of Homeland Sec., 

534 F.3d 102, 105 (2d Cir. 2008) (recognizing that the statute 

states “that the mother’s naturalization triggers derivative 

citizenship for a child born out of wedlock provided that the 

father has not legitimated the child”). Accordingly, the issue 
8

in this case is whether Marlon, who was born out of wedlock, was 

legitimated by his father before his mother naturalized. If so, 

then Marlon did not derive citizenship from his mother’s 

naturalization. See Grant, 534 F.3d at 105. 

 Marlon was legitimated under Jamaican law when his father 

married his mother 13 years after his birth. See Hines, 24 I. & 

N. Dec. at 548. Marlon acknowledges that his parents married but 

argues that the marriage did not legitimate him because neither 

his 1976 nor his 2005 Jamaican birth registration forms list his 

father. In this regard, he notes that the 2005 form was issued 

after his parents’ 1989 marriage. This argument fails because, 

under Jamaican law, the affirmative act of his parents’ marriage 

legitimated him from the date of the marriage. See Legitimation 

Act § 2; Hines, 24 I. & N. Dec. at 548. The 2005 form is simply 

a printed version of the earlier handwritten form issued in 1976 

before his parents’ marriage, and it does not contain updated 

information from 2005. 

 Contrary to Marlon’s contention, it is unnecessary to 

transfer his case to the district court to determine the status of 

Jamaican law on legitimation. The status of Jamaican law is not 

in doubt; the record includes a copy of the Jamaican Legitimation 

Act, and under all relevant Jamaican statutes, a child is 
9

legitimated by the marriage of his or her parents. See Hines, 24 

I. & N. Dec. at 547–48. The absence of his father’s name on his 

birth registration form is insufficient to raise a genuine issue 

of material fact regarding his legitimation. 

 Accordingly, we find no error in the agency’s determination 

that Marlon was legitimated by his parents’ marriage and thus did 

not derive citizenship from his mother’s naturalization alone. 

See Hines, 24 I. & N. Dec. at 548. 

 Marlon also argues that his removal order violates due process 

and equal protection because U.S. Citizenship and Immigration 

Services (“USCIS”) granted his brother, Omar Spaulding, a 

certificate of citizenship under identical circumstances. This 

claim is without merit. The BIA acknowledged that USCIS granted 

Marlon’s brother a certificate of citizenship under seemingly 

identical circumstances, but observed that the grant may have been 

a bureaucratic error—as the Government had argued—which could not 

serve as a basis for conferring citizenship on similarly situated 

persons. We agree. Marlon had no statutory entitlement to 

citizenship, and neither we nor the agency are empowered to confer 

it upon him, by equity or otherwise. See INS v. Pangilinan, 486 

U.S. 875, 884 (1988) (“Once it has been determined that a person 

does not qualify for citizenship, . . . the district court has no 
10

discretion to ignore the defect and grant citizenship.” (internal 

quotation marks omitted) (alteration in original)); see also Hizam 

v. Kerry, 747 F.3d 102, 110 (2d Cir. 2014) (“Courts cannot grant 

citizenship through their equitable powers.”). Because the BIA 

provided a satisfactory explanation for the “seemingly 

inconsistent treatment,” Zhang v. Gonzales, 452 F.3d 167, 174 (2d 

Cir. 2006), it did not violate Marlon’s due process or equal 

protection rights. 

 For the foregoing reasons, the petition for review is DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe 

Clerk of Court