### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 11-60856 Summary Calendar

ASBERT FITZGERALD JOSEPH, also known as Joseph Albert, also known as Joseph Asbert, also known as Joseph Oskar Oskar, Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals

ON PETITION FOR REHEARING
Before DeMOSS, PRADO, and OWEN, Circuit Judges. PER CURIAM: The Petition for Rehearing is GRANTED. We withdraw the prior opinion, 2013 WL 135514 (Jan. 10, 2013), and substitute the following opinion. Asbert Fitzgerald Joseph, a native and citizen of Saint Vincent and the Grenadines, petitions this court for review of an order from the Board of Immigration Appeals (BIA) denying his motion to reopen and reconsider. He maintains that hederived United Statescitizenship through his mother, alleging that at the time his mother became a United States citizen, she had sole legal custody ofhim and was legally separated from his father. Because the question United States Court of Appeals

Fifth Circuit 

### F I L E D May 29, 2013 Lyle W. Cayce ClerkNo. 11-60856

1 Under the law in effect at the time Joseph claims to have derived citizenship, a child in the custo

dy of both parents derived citizenship only if both parents naturalized. See 8 U.S.C. § 1432 (repealed 2000). Joseph has not alleged that his father ever became a United States citizen. 2 of Joseph’s citizenship is an essential jurisdictional fact on which no court has previously passed judgment, we review it de novo. D uarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) (reviewing citizenship claim raised in petition for reviewfrom the BIA’s refusal to reopen removal proceedings sua sponte because “[a]n assertion of U.S. ‘citizenship is . . . a denial of an essential jurisdictional fact’ in a deportation proceeding” (quoting Ng Fung Ho v. White , 259 U.S. 276, 284 (1922)); see also Marquez-Marquez v. Gonzalez, 455 F.3d 548, 554 (5th Cir. 2006) (holding that nationality claims are reviewed de novo). If a petitioner’s citizenship claim presents a genuine issue of material fact, we transfer the proceeding to the district court; if not, we decide the claim ourselves. 8 U.S.C. § 1252(b)(5); see also Lopez v. Holder, 563 F.3d 107, 110 (5th Cir. 2009)

. Joseph must prove his citizenship claim by a preponderance of the evidence, Ayton v. Holder, 686 F.3d 331, 335 (5th Cir. 2012), and “must do so in the face of the Supreme Court’s mandate that we resolve all doubts ‘in favor of the United Statesand against’ thoseseeking citizenship.” Bustamante-Barrera v. Gonzalez, 447 F.3d 388, 394-95 (5th Cir. 2006) (quoting Berenyi v. Dist. Dir., INS , 385 U.S. 630, 637 (1967)). Joseph claims that he derived United States citizenship pursuant to 8 U.S.C. § 1432(a)(3), which provided, in relevant part, that a child born outside the United States of alien parents became a United States citizen upon the “naturalization of the parent having legal custody of the child when there has been a legal separation of the parents,” provided that certain other conditions
were also met. 8 U.S.C. § 1432(a)(3) (repealed 2000). The government contends that Joseph’s citizenship claim fails because at the time his mother naturalized in October of 1988, she was not legally separated from Joseph’s father. 1 TheNo. 11-60856

3 record reveals that in January of 1988, Joseph’s father filed a complaint in New York state court seeking a divorce from Joseph’s mother. At some time thereafter, the court entered a defaultjudgment granting the divorce and giving Joseph’s mother legal custody of him. Joseph’s mother subsequently filed a motion to vacate thejudgment ofdivorce, which was granted by an order dated May 24, 1988. Joseph maintains that although a NewYork state courtjudge signed the order vacating his parents divorce in May of 1988, the court did not enter final judgment until 2009. As a result, claims Joseph, his parents remained legally separated when his mother naturalized in October of 1988. The law in New York, however, is that entry ofjudgment is not required for a judge’s order in a divorce proceeding to become effective as between the spouses. See, e.g., Van Pelt v. Van Pelt, 568 N.Y.S.2d 160, 161 (N.Y. App. Div. 1991) (holding that husband’s marriage to second wife, which occurred after judge issued order granting divorce from first wife but before court entered final judgment, was nonetheless valid because entry ofjudgment “constituted nothing more than a
mere formality or ministerial act”); see al so Flythe v. Astrue , No. 10 Civ. 9069 (NM), 2012 WL 38927, at *2 (S.D.N.Y. Jan. 6, 2012) (collecting cases); cf. Musso
v. Ostashko, 468 F.3d 99, 107 (2d Cir. 2006)

. Accordingly, Joseph’s assertion that his parents were legally separated when his mother naturalized is without merit and his citizenship claim fails as a matter of law. Joseph has not otherwise established that the BIA abused its discretion in denying his motion to reopen. We review the denial of motions to reopen and reconsider “under a highly deferential abuse-of-discretion standard.” Z hao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s ruling will stand “so long
as it is not capricious, racially i nvidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id . at 304 (internal citations omitted). There is nodispute thatJoseph’s motion to reopen and reconsider wasfiled moreNo. 11-60856

4 than 90days after the BIA dismissed his appeal in November 2010. As a result, his motion was untimely filed. 8 U.S.C. § 1229a(c)(6)(B), (7)(C)(i); 8 C.F.R. § 1003.2(b)(2), (c)(2). With the benefit of liberal construction, Joseph also argues that the BIA
should have tolled the time for filing his motion to reopen and reconsider because his counsel rendered ineffective assistance. This argument amounts to the contention that the BIA should have exercised its discretion to reopen or reconsider the removal proceeding sua sponte. See Ramos-Bonilla v. Mukasey, 543 F. 3d 216, 219-20 (5th Cir. 2008). We lack jurisdiction to review the BIA’s decision declining to do so. See id. Accordingly, Joseph’s petition f or review is DENIED IN PART and DISMISSED IN PART for lack of jurisdiction.