Martinez vs Gonzales [Summ. Ord.], (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL

REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS

OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS

OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A

RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL

OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New

York, on the 26th day of May, Two thousand and six.

PRESENT:

HO N . THOMAS J. MESKILL,

HO N . CHESTER J. STRAUB,

HO N . ROBERT A. KATZMANN,

Circuit Judges.

x

Fredy Martinez,

Petitioner,

-v.- 05-4112-ag

Alberto R. Gonzales,* Attorney General,

Respondent.

-x

For the Petitioner: FR E D Y MARTINEZ, pro se, Bronx, New York.

For the Respondent: MICHAEL J. GARCIA, United States Attorney for the Southern District of New York, SUE CHEN, Special Assistant United States Attorney, KATHY S. MARKS, Assistant United States Attorney, Of Counsel.

UPON DUE CONSIDERATION of this petition for review, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition is denied in part, granted in part, and remanded for further proceedings consistent with this order.

Fredy Martinez (A 44-179-828), pro se, filed a petition in district court under 28U.S.C. § 2241, asserting that the Board of Immigration Appeals ("BIA") had erred in failing to recognize that he had obtained United States citizenship derivatively through his mother and in ordering his removal to the Dominican Republic. In the alternative, Martinez requested that he be afforded a hearing to determine his eligibility for relief from removal under Matter of Gabryelsky, 20 I. & N. Dec. 750, 752-57, 1993 WL 495142 (BIA 1993). We assume the parties' familiarity with the facts, the procedural history, and the scope of the issues presented in the petition for review, which we reference only as necessary to explain our decision.

In June 2004, Martinez was deported to the Dominican Republic, which does not moot his petition for relief. See Swaby v. Ashcroft, 357 F.3d 156, 160-61 (2d Cir. 2004). Following Martinez's deportation, the district court transferred his case to our Court as a petition for review, pursuant to the REAL ID Act of 2005, which eliminated that court's jurisdiction over Martinez's petition. Section 106(a) of the new law, 119 Stat. 231, 310-11 (May 11, 2005), amends several provisions of the United States Code to foreclose the use of 28U.S.C. § 2241 to obtain review of removal orders and their implementation.

We have jurisdiction to review Martinez's final order of removal under 8U.S.C. § 1252(a)(1), and his citizenship claim under 8U.S.C. § 1252(b)(5). Our review of the BIA's decis ion on a citizenship claim is the same as that which would be employed in reviewing a district court's decision on summary judgment. See Agosto v. INS, 436 U.S. 748, 754-57 (1978).

As explained below, because the evidence presented in support of Martinez's citizenship claim would be insufficient to survive a summary judgment motion, we affirm the BIA's determination that Martinez is not a United States citizen.

"`[T]he applicable law for transmitting citizenship to a child born abroad when one parent is a [United States] citizen is the statute that was in effect at the time of the child's birth.'" Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998) (quoting Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990) (second alteration in original)). Because Martinez was born in 1966, the applicable statute is section 301(a)(7) of the INA, 8U.S.C. § 1401(a)(7) (1952) (recodified as amended at 8U.S.C. § 1401(g)). Because Martinez's mother failed to satisfy the then-applicable statutory residency requirements, Martinez has not demonstrated that he is a U.S. citizen under 8U.S.C. § 1401. Nor does the record support Martinez's claim that he acquired citizenship derivatively under INA section 321(a), as neither of Martinez's parents naturalized. Finally, Martinez has not established that he had derived U.S. citizenship under INA section 322, 8U.S.C. § 1433 (1988 & 2002), which permits "[a] parent who is a citizen of the United States" to apply for citizenship for a child born outside the United States when the child, inter alia, "is under the age of 18 years and in the legal custody of the citizen parent," as the record does not suggest that Martinez's mo th er applied for citizenship on Martinez's behalf prior to his eighteenth birthday.

We now turn to Martinez's request for relief from removal.1 In Drax v. Reno, 338 F.3d 98, 111 (2d Cir. 2003), we explained that relief from removal is available to an alien who: "(i) on his drug conviction, is eligible for § 212(c) relief from deportation but ineligible for § 245(a) adjustment of status; yet (ii) on his weapons conviction, is eligible for § 245(a) adjustment of status but ineligible for § 212(c) relief from deportation[.]" Id. (citing Gabryelsky, 20 I. & N.

Dec. at 756). Under Gabryelsky, in order to have been eligible to apply for relief before an immigration judge, a petitioner generally must be simultaneously eligible to apply for both: (i) § 212(c) relief from deportation for his drug conviction; and (ii) § 245(a) adjustment of status for his weapons conviction. Id. We agree with the Government that Martinez might fit into the category of individuals who can benefit from Gabryelsky-relief, and therefore grant the petition and remand with instructions that the agency consider on the merits Martinez's application for relief from removal. See Drax, 338 F.3d at 100.

FOR THE COURT, Roseann B. MacKechnie, Clerk By: Oliva M. George, Deputy Clerk

* Pursuant to Federal Rule of A p p e l l a t e Procedure 43(c)(2), Attorney G e n e r a l Alberto R. Gonzales is a u t o m a t i c a l l y sub s t i t u t e d for former Atto r n e y G e n e r a l John Ashcroft as the respo n d e n t in this case .

1 In considering Martinez's request, we reject the government's contention that the request is insufficiently argued in Martinez's pro se brief and therefore waived.

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