United States Court of Appeals
For the First Circuit
No. 20-1807
JERMAINE ST. AUBYN ROBINSON,
Petitioner,
v.
MERRICK B. GARLAND,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Thompson, and Gelpí,
Circuit Judges.
James R. Tewhey on brief for petitioner.
Brian Boynton, Acting Assistant Attorney General, Civil
Division, Paul Fiorino, Senior Litigation Counsel, and Kevin J.
Conway, Trial Attorney, on brief for respondent.
December 28, 2022
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr.
KAYATTA, Circuit Judge. Petitioner Jermaine St. Aubyn
Robinson concedes that, unless he is a citizen of the United States
through derivative citizenship, he is removable as an alien who
has been convicted of an aggravated felony. Because we determine
that Robinson has not generated a genuine issue of material fact
supporting his claim of derivative citizenship, we deny his
petition for review.
I.
Briefly, we recite the following undisputed facts.
Robinson was born in Jamaica in 1982 and was admitted to the United
States in March 1994. On February 26, 2018, Robinson was convicted
in Massachusetts state court of possession with intent to
distribute a Class B controlled substance (cocaine). The United
States initiated removal proceedings against Robinson in 2019
based on this conviction. During an August 2019 hearing before an
Immigration Judge, Robinson argued that he was a U.S. citizen
because his mother, Novlett Robinson ("Novlett"), became a
naturalized citizen in 1998 or 1999, before Robinson reached the
age of eighteen. This contention conflicted with a birth
certificate produced by the government that listed Conrad Robinson
("Conrad"), a native of Jamaica who became a naturalized U.S.
citizen in 2014, and Yvonne Richards ("Yvonne"), a citizen of
Jamaica, as Robinson's parents. Robinson explained that he did
not know Yvonne and had always believed Novlett to be his
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"biological mother." 1 However, Robinson was unable to provide any
competent proof to support his claim that Novlett was his
biological mother.
During a second hearing in September 2019, he conceded
through counsel that "derivative citizenship is not a
possibility." In January 2020, Robinson accepted an order of
removal from the Immigration Judge (IJ) and waived appeal to the
Board of Immigration Appeals (BIA). Robinson subsequently filed
a pro se appeal to the BIA claiming derivative U.S. citizenship
based on his assertion that Novlett was his biological mother.
Robinson's appeal was based on a different birth certificate that
he obtained from the Jamaican Embassy listing his mother as
Novlett.2 The BIA dismissed Robinson's appeal on July 16, 2020,
after finding that the IJ's decision became administratively final
upon Robinson's January 2020 waiver of appeal. Robinson timely
petitioned this court for review of the BIA's decision based on
the assertion that he is a U.S. citizen and, thus, that he cannot
be deported.
1 We use the term "biological mother" only because both
Robinson and the government frame the issue here as whether Novlett
or Yvonne was Robinson's biological mother.
2 The government asks that we not consider the second birth
certificate because it was not included in the administrative
record. However, our consideration of a claim of citizenship is
not limited to the administrative record. See, e.g., Thompson v.
Lynch, 808 F.3d 939, 942 (1st Cir. 2015); Batista v. Ashcroft,
270
F.3d 8, 13 (1st Cir. 2001).
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II.
This court has jurisdiction to determine whether there
is a "genuine issue of material fact" that, if resolved in
Robinson's favor, would support a finding that he is a U.S.
citizen. 8 U.S.C. § 1252(b)(5)(A), (B); Batista v. Ashcroft,
270
F.3d 8, 12 (1st Cir. 2001). And the government does not assert
that Robinson's failure to exhaust his claim with a timely appeal
to the BIA precludes us from making such a determination. See
Rivera v. Ashcroft,
394 F.3d 1129, 113637 (9th Cir. 2005)
(rejecting contention that one can relinquish citizenship by
failing to appeal a deportation order), superseded by statute on
other grounds, REAL ID Act,
Pub. L. No. 109-13, 119 Stat. 231
(2005), as recognized in Iasu v. Smith,
511 F.3d 881, 886 (9th
Cir. 2007).
Both Robinson and the government agree that 8 U.S.C.
§ 1432, the statute in effect when Robinson was a minor, governs
Robinson's claim to derivative U.S. citizenship. Pursuant to this
statute and as relevant to Robinson's petition, a child born
outside of the United States automatically becomes a citizen if
one of the below conditions is satisfied while the child is
unmarried and under the age of eighteen:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if
one of the parents is deceased; or
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(3) The naturalization of the parent having legal
custody of the child when there has been a legal
separation of the parents or 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.
8 U.S.C. § 1432(a) (1999), repealed by Child Citizenship Act of
2000,
Pub. L. No. 106-395, § 103(a),
114 Stat. 1631. Robinson
contends that he is eligible for derivative citizenship because he
entered the U.S. as a minor child, his biological mother (who he
claims is Novlett) became a naturalized U.S. citizen prior to his
eighteenth birthday, and he is (and was) unmarried. Robinson does
not specify which provision of section 1432(a) he purports to
satisfy.
As the government explains, Robinson has not established
a claim to derivative U.S. citizenship under any of the three
provisions of section 1432(a). First, Robinson cannot be eligible
under section 1432(a)(1) because, even if Novlett is his mother
and even if she was naturalized before he turned eighteen, his
father, Conrad, was not naturalized until after Robinson turned
eighteen. Second, Robinson cannot be eligible under section
1432(a)(2) because he has neither argued nor provided evidence
that would support a finding that Conrad is deceased, let alone
that he was deceased before Robinson turned eighteen. Finally,
Robinson cannot be eligible under section 1432(a)(3) because he
did not argue or provide evidence that would support a finding
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that "there has been a legal separation of [his] parents" or that
he "was born out of wedlock and [his] paternity . . . has not been
established by legitimation." § 1432(a)(3). Thus, Robinson fails
to generate a genuine issue of material fact that, if resolved in
his favor, would support a finding of derivative citizenship.
III.
For the foregoing reasons, we deny Robinson's petition
for review.
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