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Gelson Lopes Brandao v. Attorney General of the United States

August 16, 2011

GELSON LOPES BRANDAO,
PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES
RESPONDENT



On Petition for Review of the Decision of the Board of Immigration Appeals (BIA-1: A040-144-317) Immigration Judge: Walter A. Durling

The opinion of the court was delivered by: Nygaard, Circuit Judge.

PRECEDENTIAL

ARGUED May 24, 2011

BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

Gelson Lopes Brandao petitions this Court to review the Board of Immigration Appeals' decision to affirm the immigration judge's removal order. Brandao specifically challenges the ruling that a Cape Verde statute legitimated him, making him ineligible for derivative citizenship pursuant to 8 U.S.C. § 1432(a)(3). We will deny the petition.

I.

Brandao was born in Cape Verde on January 24, 1979, and admitted into the United States as a legal permanent resident on August 23, 1985, when his mother immigrated. His mother became a United States citizen on July 11, 1996. The Department of Homeland Security placed him in removal proceedings in 2008 for a 2005 conviction on an aggravated felony. Brandao sought to terminate the removal proceedings pursuant to former Section 321(a) of the Immigration and Nationality Act (8 U.S.C. § 1432(a)(3) (repealed 2000)), contending that he derived United States citizenship through his mother, who was unwed when he was born and who naturalized prior to his eighteenth birthday.*fn1 Brandao did not provide any information on his biological father, claiming he did not know him.

The immigration judge ordered Brandao's removal, accepting the reasoning of the United States Citizenship and Immigration Service in denying Brandao's application for derivative citizenship.*fn2 The Board of Immigration Appeals affirmed the immigration judge's order.

II.

While we generally do not have jurisdiction to review an aggravated felon's removal order (8 U.S.C. § 1252(a)(2)(C)), we do have jurisdiction to determine our jurisdiction, particularly in cases such as this where the petitioner claims to be a national of the United States, and no material issues of fact are presented. 8 U.S.C. § 1252(b)(5)(A). We also have jurisdiction to review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D).

Under the REAL ID Act of May 11, 2005, Pub. L. No. 109-13, "factual or discretionary determinations are outside of our scope of review." Pierre v. Attorney General of United States, 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (citing Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006)). We give plenary review to statutory questions presented in petitions for review on derivative citizenship. Jordon v. Attorney General of the United States, 424 F.3d 320, 328 (3d Cir. 2005).

We are mindful that, because there are dual sources of jurisdiction applicable here, a split exists among courts of appeals on whether the BIA's interpretation of section 1432(a) is subject to the deferential review specified in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984).*fn3 We have not addressed this issue. However, deference to the BIA ...


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