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Keywords

jurisdictionstatutefelonycitizenship
jurisdictioncitizenshipnaturalization

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Lewis v. Gonzales

Facts

Kirk Washington Lewis was born in Jamaica to Hopeton Lewis and Anne Nurse, who never married. After living with his mother until age 13, he moved to the U.S. to live with his father, who became a naturalized citizen in 1985. Lewis was later convicted of felony marijuana possession, which led to removal proceedings. He argued that he derived citizenship through his father, but the IJ ruled against him, stating that his parents never achieved a legal separation as required by law.

Petitioner was born to Hopeton Lewis and Anne Nurse in Jamaica in September of 1972. His parents never married, but lived together in Jamaica. Hopeton Lewis's name appears on petitioner's birth registration form and, according to petitioner, both parents 'duly registered' him as their child. Sometime during petitioner's youth, his father and mother ceased their relationship. Petitioner's father then came to the United States, married a U.S. citizen, and was naturalized in March of 1985.

Issue

Did Kirk Washington Lewis derive citizenship from his naturalized father under 8 U.S.C. 1432(a)(3), and did the court have jurisdiction to review the IJ's denial of cancellation of removal?

The IJ and BIA reasoned that Lewis did not derive citizenship from his father because his parents, who never married, never effected the 'legal separation' that 8 U.S.C. 1432(a)(3) (repealed 2000) requires before a legitimated alien child may derive citizenship through a single parent.

Rule

Under 8 U.S.C. 1432(a)(3), a child born to never-married parents can derive citizenship through a naturalized parent only if the parents have achieved a legal separation.

In relevant part, 1432(a) provides that a child who is under 18 years old and was 'born outside of the United States of alien parents . . . becomes a citizen of the United States upon' the following: (1) The naturalization of both parents; or (2) The naturalization of the surviving parent if one of the parents is deceased; or (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 . . . .

Analysis

The court analyzed whether Lewis's parents had achieved a legal separation as required by 1432(a)(3). It concluded that since they were never married, the requirement for legal separation could not be satisfied. The court emphasized that the statute's language is clear and does not allow for exceptions based on the parents' marital status. Additionally, the court noted that it lacked jurisdiction to review the IJ's discretionary decision regarding cancellation of removal.

The IJ and BIA ruled that Lewis was not a citizen because 1432(a)(3) requires that his never-married parents be legally separated before Lewis may derive citizenship from either one individually, and that his parents had not achieved such a separation.

Conclusion

The court denied Lewis's petition regarding his citizenship claim and dismissed the challenge to the cancellation of removal. The court held that it lacked jurisdiction to review the IJ's discretionary denial.

The court denied the petition to the extent the alien claimed that he was a citizen and that his conviction was not for a controlled substance offense. The court dismissed the petition to the extent that the alien challenged the denial of cancellation of removal.

Who won?

The government prevailed in the case because the court upheld the BIA's decision that Lewis did not derive citizenship and that the IJ's denial of cancellation of removal was not subject to review.

The court lacked jurisdiction to review the IJ's denial of cancellation of removal. As the IJ and BIA made clear by balancing the positive and negative aspects of the alien's case, the agency's decision was an exercise of its discretion–the type of decision the court could not review unless it raised a constitutional or legal question, which the instant case did not.

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