ZAVALA, DAVID M {A020-683-429) 15850 EXPORT PLAZA DRIVE HOUSTON, TX 77032

Name: ZAVALA, DAVID M

U.S. Department of Justice

Executive Office for Immigration Review

Board of lmmigratio11 Appeals Office of the Clerk

5107 Leesburg l'ike, Suite 2000 Falls Churc/1, l'irgi11ia 2204 /

OHS/ICE Office of Chief Counsel • HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

A020-683-429

Date of this notice: 4/30/2012

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Adkins-Blanch, Charles K.

Sincerely,

Donna Carr Chief Clerk

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: David M. Zavala, A020 683 429 (BIA Apr. 30, 2012)

...

' U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A020 683 429 - Houston, TX

Decision of the Board of Immigration Appeals

Date: APR 3 0 2012

In re: DAVID M. ZAVALA a.k.a. David Martin Zavala a.k.a. David Martin Mora a.k.a. David Zavala a.k.a. Martin David Zavala a.k.a. David Zavala a.k.a. Martin David Zavala

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

The respondent, a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on or about July 13, 1977, appeals the decision of the Immigration Judge, dated January 24, 2012, ordering his removal from this country. The record will be remanded.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i}, (ii).

Even though the respondent was born in Mexico in 1966, he believes that he may have a claim to United States citizenship.1 A person born abroad who claims to be a citizen of the United States has the burden to establish such claims. 2 See Matter of Leyva, 16 l&N Dec. 118, 119 (BIA 1977); see also Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 164 (BIA 2001).

Before the Immigration Judge, the pro se respondent informed the Immigration Judge that his grandparents were citizens of the United States and that "it's your law book that says 8 U.S.C. § 1432 it says that I can apply since they raised me." However, the Immigration Judge told the respondent that he "didn't ask about your grandparents because it's not important to your case," that he was "not familiar with that law," and that the respondent would "get a chance to make that argument to the Board" (Tr. at 121-22). In his decision, the Immigration Judge analyzed the respondent's United States citizenship claim by simply stating that "the Court does not share [the respondent's] opinion" (I.J. at 4).

1 Aside from the United States citizenship claim, the respondent does not dispute that he is subject to removal from the United States as a result of his criminal history and does not allege that he is eligible for any form of relief from removal that can be granted by an Immigration Judge or this Board.

2 The citizenship and nationality laws of this country, which are generally found at Title III of the Immigration and Nationality Act, are complex, numerous, and have changed significantly over time. As such, specific and thorough fact finding is required by an Immigration Judge in order for this Board to determine which laws are applicable in any given matter concerning such claims. See 8 C.F.R. § 1003 .1 ( d)(3 )(iv) (providing that, subject to certain exceptions not applicable to the present case, "the Board will not engage in fact-finding in the course of deciding appeals").

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: David M. Zavala, A020 683 429 (BIA Apr. 30, 2012)

A.020 683 429 . .

Contrary to the Immigration Judge's statements, the fact that the respondent's grandparents may be citizens of the United States is important. First, it is not impossible that the respondent may be a citizen of the United States on a derivative basis. Under certain circumstances, an alien born abroad may be a citizen of the United States by virtue of having a parent who is a citizen of the United States. Even if an alien's parent was also born abroad, it is possible that the alien's parent was nonetheless a derivative citizen of the United States by virtue of having been born to a citizen of the United States. In other words, the Act does not absolutely foreclose a chain of derivative citizenship claims over several generations.

Second, under certain circumstances an alien may "automatically" obtain United States citizenship upon the naturalization of his parent. For example, former section 321 of the Immigration and Nationality Act, 8 U.S.C. § 1432, set forth certain conditions upon which an alien under the age of 18 may have automatically acquired United States citizenship upon the naturalization of a parent. Even though section 321 of the Act generally applied to only natural children of aliens who naturalized, section 321(b) of the Act also provided certain provisions which allowed adopted children to automatically acquire United States citizenship. This Board is well aware of numerous instances where a grandparent has adopted a grandchild. Thus, it is not impossible that an alien may have automatically acquired United States citizenship under section 321 of the Act upon the naturalization of a grandparent (who also adopted the alien).

At the present time, we express no opinion as to the ultimate question of whether the respondent is a citizen of the United States. However, we are precluded from fact finding on appeal, and considering that the respondent has made a significant claim, i.e., that he is a citizen of the United States, the Immigration Judge should have made further inquiry into the validity of the respondent's claim. We observe that a determination of alienage is a jurisdictional issue, and neither an Immigration Judge or this Board has jurisdiction to enter an order of removal against a citizen of the United States. In short, remanded proceedings are required to provide the respondent with a meaningful opportunity to present his claim that he is a citizen of the United States. Accordingly, the following order is entered.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

2

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: David M. Zavala, A020 683 429 (BIA Apr. 30, 2012)