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Walker v. Holder

BIA

A018 566 067



### 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 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 22 nd day of October, two thousand

fourteen.

PRESENT:

CHESTER J. STRAUB,

RICHARD C. WESLEY,

DEBRA ANN LIVINGSTON,

Circuit Judges

.

_______________________________________

JEFFREY A. WALKER, AKA PETER WALKER

BROWN,

Petitioner

,

v. 13

‐ 712

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,Respondent

.

_______________________________________

FOR PETITIONER: Jeffrey A. Walker, Pro Se, Kingston, Jamaica.

1

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; 2

Cindy S. Ferrier, Assistant Director; Timothy G. 3

Hayes, Trial Attorney, Office of Immigration 4

Litigation, United States Department of Justice, 5

Washington, D.C. 6

7

UPON DUE CONSIDERATION of this petition for review of a Board of 8

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 9

AND DECREED that the petition for review is DENIED. 10

Jeffrey A. Walker, pro se, a native and citizen of Jamaica, seeks review of a 11

January 16, 2013 order of the BIA denying his fifth motion to reopen his 12

deportation proceedings. In re Jeffrey A. Walker

, No. A018 566 067 (B.I.A. Jan. 16, 13

2013). We assume the parties’ familiarity with the underlying facts and 14

procedural history in this case. 15

Despite Walker’s conviction for a firearms offense, we retain jurisdiction to 16

review questions of law, such as his claim to derivative citizenship. 8 U.S.C. 17

§ 1252(a)(2)(D); Duarte

‐ Ceri v. Holder

, 630 F.3d 83, 87 (2d Cir. 2010). Where a 18

petition presents a claim to citizenship, we determine whether material issues of 19

2fact exist regarding citizenship, applying the same standards applied to summary 1

judgment motions. Agosto v. INS

, 436 U.S. 748, 754 (1978). Walker has the 2

burden of establishing a prima facie case for derivative citizenship. See id. at 756. 3

Walker’s claim is governed by former 8 U.S.C. § 1432(a), the derivative 4

citizenship statute in effect in 1979, when his mother apparently naturalized. In 5

dispute here is the statute’s requirement that a parent naturalize before the 6

child’s eighteenth birthday. Walker argues that his case is analogous to Poole v. 7

Mukasey

, 522 F.3d 259 (2d Cir. 2008), in which we remanded for the BIA to 8

consider a derivative citizenship claim because it appeared that the alien’s 9

mother applied for naturalization when Poole was sixteen, but the application 10

was not processed until after he turned eighteen. Id

. at 265

‐ 66. 11

However, Poole did not announce a rule that an alien is entitled to 12

derivative citizenship if there was a delay in processing a naturalization 13

application. Further, Walker did not establish that his mother applied for 14

naturalization prior to his eighteenth birthday. His evidence consisted of a pre

‐ 15

sentence report stating that he was a U.S. citizen, which has no bearing on his 16

actual citizenship status since it was prepared by the Probation Office; his prison 17

identification card, which contains no information about his citizenship; and his 18

3own uncorroborated affidavit. He thus failed to meet his burden of proof. 1

Nwozuzu v. Holder

, 726 F.3d 323, 332 (2d Cir. 2013). 2

Walker submitted additional evidence to this Court, but we are precluded 3

from reviewing it. 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide 4

the petition only on the administrative record on which the order of removal is 5

based

. . . .”). Even if we were to consider the new evidence, it would not 6

establish a prima facie case for derivative citizenship. 7

We have considered the remaining arguments and find them to be without 8

merit. Accordingly, for the foregoing reasons, the petition is DENIED. 9

10

FOR THE COURT: 11

Catherine O’Hagan Wolfe, Clerk 12

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