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Click here for the full text of this decision FACTS:Born in Mexico in 1979 to Mexican nationals, Petitioner immigrated here with them in 1983. All three became LPRs of this country that same year. In 1991, Petitioner’s parents divorced in California. Their divorce decree awarded his mother “sole physical custody” of Petitioner, but awarded both his parents “joint legal custody.” Following his parents’ divorce, Petitioner resided exclusively with his mother. By virtue of his parents’ joint legal custody, however, Petitioner’s father retained visitation rights. In 1994, while Petitioner was still a minor under the age of 18, his mother became a naturalized citizen of the United States. His father never did. In 2000, the petitioner was convicted in a Texas state court of assault causing bodily injury to a family member. In 2002, a Texas court again convicted him of assault crimes, this time of aggravated assault with a deadly weapon and assault resulting in a bodily injury, repeat offender. These latter convictions led not only to a sentence of ten years’ imprisonment, but also to the initiation of removal proceedings by the Department of Homeland Security (“DHS”) in August 2002. Petitioner insisted that his citizenship flowed from his meeting the requirements for derivative citizenship under the pre-2000 version of 8 U.S.C. �1432(a), which automatically granted derivative citizenship to specified classes of children born outside of the United States to alien parents. In 2002 � after the initiation of Petitioner’s removal proceedings at a time when he was 23 years old � his mother sought to eliminate this problem by having his legal custody status changed retroactively. At her request, and without any objection from Petitioner’s father, a California court issued a nunc pro tunc amended divorce decree (“amended decree”) which purported to award Petitioner’s mother sole legal custody retroactively effective to February 4, 1991. In support of his mother’s request for the amended decree, her lawyer filed a declaration candidly stating that “[t]he purpose” for seeking the order was “to satisfy requirements of the Department of Immigration and Naturalization” in regards to Petitioner. In other words, Petitioner’s mother expressly sought the amended decree for the sole purpose of affecting the outcome of her major son’s removal proceeding. Faced with the amended decree, the IJ concluded that Petitioner met the requirements for derivative citizenship under � 1432(a). Reasoning that DHS had not carried its burden of proving that Petitioner was an alien, the IJ terminated the removal proceedings. DHS appealed the IJ’s decision to the BIA, which, in October 2003, reversed in favor of DHS. Petitioner appealed the IJ’s removal order to the BIA. In March 2005, the BIA dismissed the appeal. The petitioner seeks review. HOLDING:Denied. The court notes that the question of whether it has jurisdiction in a particular case is subject to plenary review. Statutes that operate to deprive the court of jurisdiction are reviewed de novo, without regard to an administrative agencies preferred interpretation of the statute. Nehme v. IRS, 252 F.3d 415 (5th Cir. 2001). Nehme‘s holding, however, does not control the court’s interpretation of �1432(a)(3). The inquiry here is not jurisdictional. Section 1252(a)(2)(D) grants jurisdiction to hear petitioner’s legal and constitutional claims, regardless of whether he is an alien. “For today’s purposes, however, the question of Chevron’s applicability is beside the point: As we agree with the BIA’s interpretation of � 1432(a), our conclusion in this case would be the same whether we were to interpret the statute de novo or, instead, within Chevron’s framework.” The court construes one of �1432(a)(3)’s express conditions that requires “the parent having legal custody of the child” to have been naturalized and determine whether this condition requires that parent to have had sole, as opposed to joint, legal custody. only sole legal custody satisfies � 1432(a)(3). The court reviews 1. the text of �1432(a)(3) and its relation to the overall scheme of the INA; and 2. �1432(a)’s purpose, as demonstrated by its legislative history. The court concludes that only sole legal custody satisfies �1432(a)(3). The petitioner makes three arguments, which the court rejects: 1. Petitioner automatically derived citizenship under �1432(a) when his mother was naturalized because he was, for purposes of federal immigration law, effectively in the sole legal custody of his mother prior to his 18th birthday; 2. Petitioner insists that under the Full Faith and Credit Act, the court must apply the amended decree to his naturalization claim under �1432(a); and 3. Petitioner contends that failure to recognize his derivative naturalization would violate the Equal Protection component of the Fifth Amendment’s Due Process Clause. OPINION:Jacques L. Wiener Jr., J.; Jones, CJ, Wiener and Prado, JJ.

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