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 he derived United States citizenship through his mother, alleging

that at the time his mother became a United States citizen, she had sole legal

custody of him 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

Clerk
No. 11-60856

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

in the custody 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U.S.C. § 1432 (repealed 2000).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. Duarte-Ceri v. Holder, 630

F.3d 83, 87 (2d Cir. 2010) (reviewing citizenship claim raised in petition for

review from 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

States and against’those seeking 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 The
No. 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 the judgment of divorce, which was granted by an order dated

May 24, 1988.

Joseph maintains that although a New York state court judge 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 of judgment 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 of judgment “constituted nothing more than a

mere formality or ministerial act”); see also 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.” Zhao v.

Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s ruling will stand “so long

as it is not capricious, racially invidious, 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 no dispute that Joseph’s motion to reopen and reconsider was filed more
No. 11-60856

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than 90 days 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 for review is DENIED IN PART and

DISMISSED IN PART for lack of jurisdiction.