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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 15 th**  **day of November, two thousand nineteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **REENA RAGGI,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JUAN ANTONIO CARTAGENA, AKA JAY** 13 **GONZALES, AKA STEVEN GONZALEZ,** 14 Petitioner **,** 15 16 **v. 17-2031** 17 **NAC** 18 **WILLIAM P. BARR, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** E. Abel Arcia, Jackson Heights, 24 NY. 25 26 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 27 Attorney General; Jessica A. 28 Dawgert, Senior Litigation 29 Counsel; Sara J. Bayram, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 342 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Juan Antonio Cartagena, a native and citizen 5 of the Dominican Republic, seeks review of a BIA decision 6 denying his motion to reopen his removal proceedings. See 7 In re Juan Antonio Cartagena, No. A 030 958 643 (B.I.A. June 8 6, 2017). We assume the parties’ familiarity with the 9 underlying facts and procedural history in this case, which 10 we reference only as relevant to Cartagena’s derivative 11 citizenship claim. 12 Cartagena was born in the Do minican Republic in 1968 to 13 unmarried Dominican citizens. His father relocated to the 14 United States and, in 1973, Cartagena entered this country as 15 a lawful permanent resident. Cartagena’s father, his 16 custodial parent at that time, naturalized as a U.S. citizen 17 in 1979. His mother nat uralized in 1996, well after 18 Cartagena turned 18. 19 We have jurisdiction to review Cartagena’s derivative 20 citizenship claim notwithstanding that we generally lack 21 jurisdiction to review orders of removal based on felony 22 convictions, or the BIA’s di scretionary decision to decline 233 sua sponte reopening. See 8 U.S.C. § 1252(a)(2)(C), (D); Gil 1 v. Sessions , 851 F.3d 184, 186 n.1 (2d Cir. 2017); Ali v. 2 Gonzales , 448 F.3d 515, 518 (2d Cir. 2006). “We review the 3 question of derivative citizenship de novo where, as here, 4 the petitioner claims to be a national of the United States 5 and the record presents no genuine issue of material fact 6 about the petitioner’s nationality.” Gil v. Sessions , 851 7 F.3d at 186 (internal quotation marks omitted); see also 8 8 U.S.C. § 1252(b)(5)(A). 9 **I. Derivative Citizenship** 10 Pursuant to the law of the case doctrine, we decline to 11 revisit whether Cartagena meets the requirements for 12 derivative citizenship under former 8 U.S.C. § 1432(a). See 13 Cartagena v. Sessions , No. 16-3010 (2d Cir. Feb. 14, 14 2017)(reasoning that Cartagena, “who was born out of wedlock, 15 did not automatically derive citizenship from his father 16 under former 8 U.S.C. § 1432(a) because his mother was not 17 naturalized or deceased while he was under 18”); Starbucks 18 Corp. v. Wolfe’s Borough Coffee, Inc. , 736 F.3d 198, 208 (2d 19 Cir. 2013) (explaining that, while “not binding,” law of the 20 case doctrine forecloses relitigation of issues decided by 21 prior panel absent “cogent and compelling reasons such as an 22 intervening change of controlling law, the availability of 234 new evidence, or the need to correct a clear error or prevent 1 manifest injustice” (internal quotation marks omitted)). 2 **II. Equal Protection** 3 That does not end our inquiry, however, because Cartagena 4 also challenges the constitutionality of 8 U.S.C. § 5 1432(a)(3), under which he sought derivative citizenship. 6 That statutory provision states, in relevant part, that a 7 naturalized mother may automatically confer U.S. citizenship 8 to her child “if the child was born out of wedlock and the 9 paternity of the child has not been established by 10 legitimation.” 8 U.S.C. § 1432(a)(3). Cartagena asserts 11 that this provision allowing an unwed mother to confer 12 citizenship—but not an unwed father—is a gender-based 13 classification that violates equal protection. This court, 14 however, has already held that § 1432(a)(3) does not violate 15 equal protection, see Pierre v. Holder , 738 F.3d 39, 48, 50– 16 58 (2d Cir. 2013), and we are bound by that “decision until 17 it is overruled either by this Court sitting en banc or by 18 the Supreme Court,” Doscher v. Sea Port Grp. Sec., LLC , 832 19 F.3d 372, 378 (2d Cir. 2016). 20 Cartagena argues that the Supreme Court’s decision in 21 Sessions v. Morales-Santana , 137 S. Ct. 1678 (2017), 22 overrules Pierre . It does not. The statute at issue in 235 Morales-Santana , 8 U.S.C. § 1401(a)(7), required an unwed 1 citizen father to reside in the United States for ten years 2 prior to the birth of his child, whereas the statute required 3 only one year of pre-birth residency for an unwed mother to 4 pass citizenship to her child, see Morales-Santana, 137 S. 5 Ct. at 1686. The Supreme Court held that this difference 6 violated equal protection because it discriminated on the 7 basis of gender and relied on an outdated and unjustifiable 8 understanding of gender roles. See id. at 1690-98. 9 Section 1432(a), however, does not rely on outdated 10 stereotypes. Rather, it distinguishes between circumstances 11 where a minor has two known and living parents and where a 12 minor has only one parent (either an unwed mother and no 13 paternal legitimation or a deceased parent). See Lewis v. 14 Gonzales , 481 F.3d 125, 131 (2d Cir. 2007); cf. Morales15
Santana , 137 S. Ct. at 1690-94 (distinguishing laws based on 16 outdated stereotypes from those based on “the parent’s filial 17 tie to the child”). Accordingly, Morales-Santana does not 18 implicate § 1432(a)(3), and Pierre controls. 19 20
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22 236 For the foregoing reasons, the petition for review is 1

DENIED. 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, 4 Clerk of Court 5