14-2791-ag Dussard v. Lynch UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 1 st day of October, tw o thousand fifteen.
PRESENT: JOHN M. WALKER, JR., REENA RAGGI, Circuit Judges , KIYO A. MATSUMOTO, District Judge.*

---------------------------- ---------------------------- -------------- JERMAINE HORATIO DUSSARD, A.K.A. KEVIN DUSSARD, A.K.A. KEVIN ADAMS, A.K.A. JERMAINE HENRY, A.K.A. JERMAINE K. DUSSARD, A.K.A KEVIN ADAM, A.K.A. DAVID KEVIN YOUNGER, A.K. A. MICHAEL JAMEL GASTON, Petitioner , v. No. 14-2791-ag LORETTA E. LYNCH, United St ates Attorney General, Respondent

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* The Honorable Kiyo A. Matsumoto, of the Un ited States District Court for the Eastern District of New York , sitting by designation.2 FOR PETITIONER: Naresh M. Ge hi, Gehi & Associates, Forest Hills, New York. FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; John S. Hogan, Assistant Director; David H. Wetmore, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the order of the Board of Immigration Appeals (“BIA”) dated June 5, 2014, is DENIED. Jermaine Horatio Dussard, a citizen of Jamaica, petitions for review of a BIA order affirming the January 31, 2014 decisi on of an Immigration Judge (“IJ”) ordering Dussard’s removal to Jamaica. S ee In re Jermaine Horatio Dussard, No. A037 332 033 (B.I.A. June 5, 2014), aff’g No. A037 332 033 (Immig. Ct. N.Y.C. Jan. 31, 2014). Dussard contends that the agen cy erred in concluding that he failed to establish United States citizenship derived fr om his mother’s naturalizati on in 1990. We assume the parties’ familiarity with the underlying facts a nd procedural history in this case, which we reference only as necessary to expl ain our decision to deny the petition.
1. Standard of Review Despite Dussard’s convictio n for an aggravated felony and a controlled substance offense, we retain jurisdiction to review de novo questions of law, such as Dussard’s claim to derivative citizenship. See 8 U.S.C. § 1252(a)(2)(D); Morales-Santana v. Lynch, 792 F.3d 256, 260 (2d Cir. 2015 ). “If the petitioner claims to be a national of the United3 States and the court of appeals finds from th e pleadings and affidavits that no genuine issue of material fact about the petitioner’s na tionality is presented, the court shall decide the nationality claim.” 8 U.S. C. § 1252(b)(5)(A). Here, the BIA’s opinion closely tracks the IJ’s opinion and, accordingly, in co nsidering Dussard’s claim for derivative citizenship we have consider ed both opinions “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2 d Cir. 2006).
2. Dussard Has Failed To Estab lish Derivative Citizenship Jamaican-born Dussard argu es that he acquired deri vative citizenship upon his mother’s naturalization pursuant to 8 U.S.C. § 1432(a), which, as relevant here, affords foreign-born children automatic U.S. citizen ship upon: (1) “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,” (2) “if . . . [s]u ch naturalization takes place while such child is under the age of eighteen years,” and (3) “[ s]uch child is residing in the United States pursuant to a lawful admission for permanent re sidence at the time of the naturalization of the parent.” 8 U.S.C. § 1432(a)(3)–(5) (repealed 2000). 1 The only dispute under these statutory requirements is whether Dussard ’s paternity has been established by

1 Although former § 1432(a) was repealed by the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat . 1631 (2000), it nonetheless gove rns this petition because, in determining whether an alien has obtained derivative citizen ship, we apply the law in effect at the time the petitioner “fulfilled the last requirement for derivative citizenship. ” Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). Here, Dussard’s claim of derivative citizenship is based on his mother’s natura lization in 1990, at wh ich time he was under the age of eighteen.4 legitimation under Jamaican law. See Poole v. Mukasey, 522 F.3d 259, 265 n.3 (2d Cir. 2008) (“Legitimacy is determin ed by the law of the countr y in which [petitioner] was born.”). The IJ and BIA correctly concluded that Dussard’s paternity was established by legitimation when his mother married Roy Dussard. As the BIA has previously explained, under Jamaican law, “a child born out of wedlock in Jamaica . . . [is] the ‘legitimated’ child of his biologi cal father . . . upon proof th at the [father] was married to the child’s biological mother at some point afte r 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 (B.I.A. 2015) (m aintaining Hines’s holding that “for derivative citizenship purposes [under former § 1432 ], paternity could be estab lished by legitimation only through the affirmative act of parental marriage” ). It is undisputed that Dussard’s mother married Roy Dussard in 1980, five years after Dussard was born. Although Dussard contends that this marriage could not legitimate his paternity because it was too remote in time from his birth, he provides no basi s under Jamaican law for distinguishing legitimation based on the timing of the marri age. Accordingly, Dussard has failed to demonstrate that his paternity has not been es tablished by legitimation, as required under former § 1432(a)(3). In urging otherwise, Dussard argues that th ere is a genuine issue of material fact as to his paternity because Roy Dussard was not listed as petitioner’s father on his birth certificate. We are not persua ded. It is undisputed that Dussard’s birth certificate5 indicates that he shares Roy Dussard’s last na me, rather than the last name of his mother, Juliet Tyrell. Moreover, Dussa rd does not dispute that Roy Dussard is the father of Dussard’s older and younger sibl ings although Roy Dussard is not listed as the father on their birth certificates. Thus, the fact that Roy Dussard is not listed as Dussard’s father on his birth certificate is insuffi cient to raise a genuine issu e of material fact as to Dussard’s paternity. This conclusion is only re inforced by other record support of Dussard’s paternity: (1) Dussard, his siblings, and his paternal gra ndmother (as well as the preparer of his visa application and his U.S. high school tran script) believed that Roy Dussard was petitioner’s father for the first thirty-eight ye ars of Dussard’s life, (2) Dussard lived with Roy Dussard and/or Roy Dussard’s mother fo r six years in Jamaica, (3) Dussard moved to the United States with Ro y Dussard, (4) Dussard lived w ith Roy Dussard in the United States for at least six months, and (5) Dussa rd’s mother remains ma rried to Roy Dussard and purchased a house with him in 2009. To the extent Dussard’s mo ther asserts that she informed petitioner, for the firs t time in 2013, that a man na med Franklin might be his father, the IJ acted within his discretion in finding Dussa rd’s mother not credible, particularly given her admission to having lie d under oath regarding the termination of the relationship with Roy Dussard to assist her son in his attempt to naturalize. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“ We have frequently . . . held [that] an IJ’s application of the maxi m falsus in uno, falsus in om nibus [false in one thing, false6 in everything] may at times be appropri ate.” (internal quotation marks and citation omitted)). Accordingly, because Dussard was legitimated under Jamaican law by the marriage of his mother and Roy Dussard, a nd Dussard has otherwise failed to raise a genuine issue of material fact regarding pa ternity, we identify no legal error in the agency’s conclusion that Dussard did not qualify for c itizenship under 8 U.S.C. § 1432(a)(3)–(5).
3. Conclusion We have considered Dussard’s remaini ng arguments and conclude that they are without merit. The petition for review of the BIA’s June 5, 2014 order of removal is therefore DENIED. As we have completed our review, any stay of removal that the court previously granted in this petition is VACATED, and any pe nding motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT: CATHERINE O’HAGA N WOLFE, Clerk of Court