19-2505 Francisco Alberto Calero v. Attorney General of the United States of America

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 19-1260 & 19-2505
___________
FRANCISCO ALBERTO CALERO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A042-600-923)
Immigration Judge: Honorable Mirlande Tadal
________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2019
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed October 3, 2019)
___________
OPINION*
___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Francisco Calero failed to persuade the Board of Immigration Appeals (“BIA”), in
two separate proceedings, that he had acquired derivative United States citizenship as a
result of his mother’s naturalization in 1997. As Calero has offered no basis to disturb
either decision of the BIA, we will deny his consolidated petitions for review.
I.
Calero is a citizen of the Dominican Republic. He entered the United States in
1991 at age 12, and adjusted status to that of a lawful permanent resident. Years later,
Calero was convicted of drug offenses in both Virginia and New Jersey.
Based on Calero’s criminal convictions, the Department of Homeland Security
(“DHS”) issued a Notice to Appear charging him with removability under certain
provisions of the Immigration and Nationality Act: 8 U.S.C. §§ 1227(a)(2)(B)(i)
(providing for removability based on drug convictions), and 1227(a)(2)(A)(iii) (providing
for removability based on aggravated felonies).1 Although at various hearings before the
immigration judge (“IJ”), Calero refused to admit or deny the allegations in the Notice to
Appear, the allegations were eventually sustained.
Calero, at the time represented by counsel, presented only one argument to defend
against removal. He claimed entitlement to derivative citizenship based on his mother’s
1997 naturalization, her purported legal custody of Calero when he was a child, and her
purported separation from Calero’s father (who by 2007 was himself a naturalized United
1 Calero was also charged as removable under 8 U.S.C. § 1227(a)(2)(C) (providing for
removability based on firearms convictions), but DHS later withdrew that charge.

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States citizen).2
Applying Morgan v. Attorney General, 432 F.3d 226 (3d Cir. 2005), the IJ
rejected Calero’s theory of the case and denied his application for derivative citizenship.
In Morgan, we explained that “a child born outside the United States automatically
acquires United States citizenship if, while the child is under the age of eighteen, the
parent with legal custody of the child is naturalized while that child’s parents are legally
separated.” Id. at 228 (citing 8 U.S.C. § 1432(a)(3)).3
The IJ identified the only contested issue in Calero’s case as whether he had
“satisfied the requirements of [§ 1432(a)(3)]: that his mother had ‘legal custody’ of him
and that there was a ‘legal separation’ of his parents at the time of his mother’s
naturalization.” Relevant to that issue, the IJ acknowledged Calero’s March 25, 2018
affidavit signed by seven individuals who apparently were neighbors of Calero’s mother
in the Dominican Republic. The neighbors averred that Calero’s mother was, to their
knowledge, “an adult, single, person” before her death in 2008; they “did not know of her
getting married nor that she lived in union . . . with any person [sic].”4
The IJ was not persuaded by the affidavit. The IJ relied instead on DHS’s records
2 Both parents had died by the time of Calero’s removal hearing.
3 Section 1432 was repealed by the Child Citizenship Act of 2000, which eliminated the
need for aliens in Calero’s position—with only one naturalized parent during their
minority-age years—to show that their parents had legally separated. The Child
Citizenship Act, however, “does not apply retroactively to persons, like [Calero], who
turned eighteen before Congress passed” that law. Morgan, 432 F.3d at 230 n.1.
4 Calero did not testify at the merits hearing, other than to say that he did not fear
returning to the Dominican Republic.

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of the Form N-400 Application for Naturalization (“N-400”) that had been submitted by
each of Calero’s parents during their respective naturalization proceedings. The N-400s
indicated that Calero’s parents were “married”—both in 1997 (when Calero’s mother
naturalized) and in 2007 (when Calero’s father naturalized)—and that they lived at the
same address. Separate from the N-400s, the IJ observed that Calero “has not submitted
any evidence demonstrating that his mother had legal custody of him.” The IJ thus
denied Calero’s application for derivative citizenship and ordered him removed to the
Dominican Republic. Calero appealed.
In a January 2019 decision, the BIA adopted and affirmed the opinion of the IJ.
The BIA noted that Calero had failed to challenge the IJ’s aggravated felony and other
conviction-related removability determinations. The BIA observed as well that Calero’s
appellate brief did not “meaningfully address or rebut the [IJ’s] decision.” The BIA
acknowledged a newly presented July 28, 2018 affidavit signed by seven more
individuals who apparently also were neighbors of Calero’s mother in the Dominican
Republic. These neighbors collectively averred that Calero’s parents “were married and
together since the [year] of 1978 until the year of 1995, [when] they decided to separate,
a situation that lasted until the day of their death [sic].” The BIA treated the new
submission as a motion to remand, and denied it because the evidence was merely
cumulative, and because it could have (and thus should have) been obtained in advance
of the merits hearing.
Calero then filed in this Court a pro se petition for review of the BIA’s January
2019 decision. That petition for review was docketed at C.A. No. 19-1260.

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Calero subsequently filed with the BIA a motion to reopen removal proceedings
based on Pereira v. Sessions, 138 S. Ct. 2105, 2113-14 (2018) (holding that Notice to
Appear served on alien did not trigger stop-time rule, for purposes of eligibility for
cancellation of removal, because 8 U.S.C. § 1229(a) requires Notice to Appear to contain
date and time of hearing), and on purportedly new evidence. The purportedly new
evidence, however, consisted of the previously submitted July 28, 2018 affidavit of the
neighbors and a substantively identical affidavit signed by different persons on March 5,
2019, plus ‘good character’ letters and various documents reflecting accomplishments in
prison.5
In a June 2019 decision, the BIA denied Calero’s motion to reopen. The BIA
rejected Calero’s Pereira argument because Calero had not applied (nor was he eligible)
for cancellation of removal, and because Calero’s apparent argument in favor of
extending Pereira beyond its holding was foreclosed by BIA precedent.6 Regarding
Calero’s “new” evidence, the BIA determined that the affidavits, specifically, “describe
facts that predated [Calero’s] previous hearing” and thus “do not describe ‘new facts.’”
The BIA determined further that Calero failed to show that the affidavits could not have
been obtained and presented prior to the last hearing. Cutting to the heart of the matter,
the BIA concluded that, regardless of the technical problems with the affidavits, they “do
5 One of the letters was written by Calero’s sister, who said nothing about her late
parents’ marital status or any child custody arrangement they may have had.
6 The Pereira-extension argument was recently rejected by this Court as well. See
generally Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019).

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not show that [Calero] has acquired derivative United States citizenship, as they do not
establish that his mother had acquired legal custody of [him] at the time of the purported
separation [of his parents].”
Calero then filed in this Court a pro se petition for review of the BIA’s June 2019
decision. That petition for review was docketed at C.A. No. 19-2505, and was
consolidated, for purposes of disposition, with the petition for review docketed at C.A.
No. 19-1260.
II.
C.A. No. 19-1260
Even liberally construing Calero’s pro se brief, we conclude that almost all of the
arguments raised therein are unexhausted, see Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003), or are irrelevant to the BIA decision under review; indeed, it is
apparent that Calero has copied and pasted the majority of his argument section from a
brief in a case that, unlike here, presents a question about a bond determination. To the
extent, however, that Calero presents a coherent challenge to the agency’s rejection of his
derivative-citizenship claim, we must reject that challenge.7
As the IJ and BIA properly concluded, Calero submitted no evidence establishing
7 We have jurisdiction to review Calero’s nationality claim, 8 U.S.C. § 1252(b)(5)(A),
and because the facts underlying the claim themselves are not genuinely in dispute (only
the legal significance of those facts), cf. Joseph v. Att’y Gen., 421 F.3d 224, 229-30 (3d
Cir. 2005), we can decide his claim as a matter of law. Furthermore, the Government
rightly acknowledges that we have jurisdiction to review questions of law under 8 U.S.C.
§ 1252(a)(2)(D), notwithstanding Calero’s status as an alien with criminal convictions, cf.
8 U.S.C. § 1252(a)(2)(C).

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either his mother’s sole “custody” while Calero was a minor, or her “legal separation”
from Calero’s father. Cf. Dessouki v. Att’y Gen., 915 F.3d 964, 967 (3d Cir. 2019) (“A
legal separation ‘occurs only upon a formal governmental action . . . under the laws of a
state or nation having jurisdiction over the marriage.’”) (quoting Morgan, 432 F.3d at
234). To the contrary, Calero—at the time proceeding pro se—conceded at a preliminary
hearing that his parents had never even separated:
DHS: Well, sir did – were your parents ever – were they married?
CALERO: Yes.
DHS: Did they ever divorce or separate?
CALERO: No.
AR 84.
Ultimately, it was Calero’s burden to prove his eligibility for derivative
citizenship, and the IJ and BIA did not err as a matter of law in concluding that he did not
carry that burden.
The BIA, moreover, did not abuse its discretion in refusing to remand to the IJ
based on the July 29, 2018 affidavit. The BIA properly determined that there was no
good reason for belated production of the new affidavit. See Huang v. Att’y Gen., 620
F.3d 372, 389 (3d Cir. 2010) (providing that an alien seeking to reopen or remand
proceedings based on new evidence “must show that the ‘evidence sought to be offered is
material and was not available and could not have been discovered or presented at the
former hearing’”) (quoting 8 C.F.R. § 1003.2(c)(1)).
For those reasons, we will deny the petition for review at C.A. No. 19-1260.
C.A. No. 19-2505

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Calero’s brief in support of this petition for review should have raised challenges
to the BIA’s June 2019 decision denying remand. But instead it only raised, at best,
challenges to the BIA’s January 2019 decision. Accordingly, Calero has waived his right
to challenge the June 2019 decision, see Garza v. Citigroup Inc., 881 F.3d 277, 284-85
(3d Cir. 2018), and his petition for review at C.A. No. 19-2505 will be denied.8
8 Even assuming, arguendo, that we were to ignore Calero’s deficient briefing, we would
not be able to discern from independent examination of the record any meritorious issues
pertaining to this petition for review. For instance, the BIA appears to have rightly
determined that Calero’s “new evidence” did not as a matter of law establish either his
mother’s sole “custody” while Calero was a minor, or her “legal separation” from
Calero’s father.

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