17-2031 

Cartagena v. Barr 

BIA 

A030 958 643

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.

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

2 for the Second Circuit, held at the Thurgood Marshall United 

3 States Courthouse, 40 Foley Square, in the City of New York, 

on the 15th 4 day of November, two thousand nineteen. 

5 

6 PRESENT: 

7 PIERRE N. LEVAL,

8 REENA RAGGI, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 JUAN ANTONIO CARTAGENA, AKA JAY 

14 GONZALES, AKA STEVEN GONZALEZ, 

15 Petitioner, 

16 

17 v. 17-2031 

18 NAC 

19 WILLIAM P. BARR, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: E. Abel Arcia, Jackson Heights, 

25 NY. 

26 

27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

28 Attorney General; Jessica A. 

29 Dawgert, Senior Litigation 

30 Counsel; Sara J. Bayram, Trial 

31 Attorney, Office of Immigration 

32 Litigation, United States 

33 Department of Justice, Washington, 

34 DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

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

4 is DENIED. 

5 Petitioner Juan Antonio Cartagena, a native and citizen 

6 of the Dominican Republic, seeks review of a BIA decision 

7 denying his motion to reopen his removal proceedings. See 

8 In re Juan Antonio Cartagena, No. A 030 958 643 (B.I.A. June 

9 6, 2017). We assume the parties’ familiarity with the 

10 underlying facts and procedural history in this case, which 

11 we reference only as relevant to Cartagena’s derivative 

12 citizenship claim. 

13 Cartagena was born in the Dominican Republic in 1968 to 

14 unmarried Dominican citizens. His father relocated to the 

15 United States and, in 1973, Cartagena entered this country as 

16 a lawful permanent resident. Cartagena’s father, his 

17 custodial parent at that time, naturalized as a U.S. citizen 

18 in 1979. His mother naturalized in 1996, well after 

19 Cartagena turned 18. 

20 We have jurisdiction to review Cartagena’s derivative 

21 citizenship claim notwithstanding that we generally lack 

22 jurisdiction to review orders of removal based on felony 

23 convictions, or the BIA’s discretionary decision to decline 
3

1 sua sponte reopening. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil 

2 v. Sessions, 851 F.3d 184, 186 n.1 (2d Cir. 2017); Ali v. 

3 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). “We review the 

4 question of derivative citizenship de novo where, as here, 

5 the petitioner claims to be a national of the United States 

6 and the record presents no genuine issue of material fact 

7 about the petitioner’s nationality.” Gil v. Sessions, 851 

8 F.3d at 186 (internal quotation marks omitted); see also 8 

9 U.S.C. § 1252(b)(5)(A). 

10 I. Derivative Citizenship 

11 Pursuant to the law of the case doctrine, we decline to 

12 revisit whether Cartagena meets the requirements for 

13 derivative citizenship under former 8 U.S.C. § 1432(a). See 

14 Cartagena v. Sessions, No. 16-3010 (2d Cir. Feb. 14, 

15 2017)(reasoning that Cartagena, “who was born out of wedlock, 

16 did not automatically derive citizenship from his father 

17 under former 8 U.S.C. § 1432(a) because his mother was not 

18 naturalized or deceased while he was under 18”); Starbucks 

19 Corp. v. Wolfe’s Borough Coffee, Inc., 736 F.3d 198, 208 (2d 

20 Cir. 2013) (explaining that, while “not binding,” law of the 

21 case doctrine forecloses relitigation of issues decided by 

22 prior panel absent “cogent and compelling reasons such as an 

23 intervening change of controlling law, the availability of 
4

1 new evidence, or the need to correct a clear error or prevent 

2 manifest injustice” (internal quotation marks omitted)). 

3 II. Equal Protection 

4 That does not end our inquiry, however, because Cartagena 

5 also challenges the constitutionality of 8 U.S.C. § 

6 1432(a)(3), under which he sought derivative citizenship. 

7 That statutory provision states, in relevant part, that a 

8 naturalized mother may automatically confer U.S. citizenship 

9 to her child “if the child was born out of wedlock and the 

10 paternity of the child has not been established by 

11 legitimation.” 8 U.S.C. § 1432(a)(3). Cartagena asserts 

12 that this provision allowing an unwed mother to confer 

13 citizenship—but not an unwed father—is a gender-based 

14 classification that violates equal protection. This court, 

15 however, has already held that § 1432(a)(3) does not violate 

16 equal protection, see Pierre v. Holder, 738 F.3d 39, 48, 50–

17 58 (2d Cir. 2013), and we are bound by that “decision until 

18 it is overruled either by this Court sitting en banc or by 

19 the Supreme Court,” Doscher v. Sea Port Grp. Sec., LLC, 832 

20 F.3d 372, 378 (2d Cir. 2016). 

21 Cartagena argues that the Supreme Court’s decision in 

22 Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), 

23 overrules Pierre. It does not. The statute at issue in 
5

1 Morales-Santana, 8 U.S.C. § 1401(a)(7), required an unwed 

2 citizen father to reside in the United States for ten years 

3 prior to the birth of his child, whereas the statute required 

4 only one year of pre-birth residency for an unwed mother to 

5 pass citizenship to her child, see Morales-Santana, 137 S. 

6 Ct. at 1686. The Supreme Court held that this difference 

7 violated equal protection because it discriminated on the 

8 basis of gender and relied on an outdated and unjustifiable 

9 understanding of gender roles. See id. at 1690-98. 

10 Section 1432(a), however, does not rely on outdated 

11 stereotypes. Rather, it distinguishes between circumstances 

12 where a minor has two known and living parents and where a 

13 minor has only one parent (either an unwed mother and no 

14 paternal legitimation or a deceased parent). See Lewis v. 

15 Gonzales, 481 F.3d 125, 131 (2d Cir. 2007); cf. Morales16 Santana, 137 S. Ct. at 1690-94 (distinguishing laws based on 

17 outdated stereotypes from those based on “the parent’s filial 

18 tie to the child”). Accordingly, Morales-Santana does not 

19 implicate § 1432(a)(3), and Pierre controls. 

20 

21 

22 

23 
6

1 For the foregoing reasons, the petition for review is 

2 DENIED. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, 

5 Clerk of Court