CESAR HARLEY ROBLETO, AKA Cesar Robleto v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR HARLEY ROBLETO, AKA
Cesar Robleto,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71651
Agency No. A025-413-274
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 5, 2013
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM,
Senior District Judge.**
Petitioner Cesar Harley Robleto, a native of Nicaragua, petitions for review
of the BIA order denying his claim of derivative citizenship and ordering his
FILED
AUG 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Miriam Goldman Cedarbaum, Senior District Judge
for the U.S. District Court for the Southern District of New York, sitting by
designation.

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removal to Nicaragua. We have jurisdiction over this appeal pursuant to 8 U.S.C.
§ 1252(a)(1), and we grant the petition for review.
The BIA erred when it held that Robleto had not received derivative
citizenship. Under 8 U.S.C. § 1432, the statute in effect in 1999, Robleto received
derivative citizenship when his mother was naturalized and his father, who was not
a U.S. citizen, did not legitimate him.
We look to California law to determine if legitimation occurred. Minasyan
v. Gonzales, 401 F.3d 1069, 1076-77 (9th Cir. 2005). Under California Family
Code § 7611, a child is legitimated if the father “receives the child into his home
and openly holds out the child as his natural child.” Cal. Fam. Code § 7611. The
BIA, relying in part on the IJ’s reasoning, erred in its application of § 7611 when it
concluded that Robleto’s father had received Robleto into his home. The
testimony of Robleto and his mother, which the IJ found credible, as well as the
documents produced to the IJ, demonstrate that Robleto’s father was only an
occasional visitor at Robleto’s mother’s house. The father never received Robleto
into his home. See In re Spencer W., 56 Cal. Rptr. 2d 524, 527 (Cal. Ct. App.
1996) (affirming the trial court’s determination that the alleged father did not
legitimate the child because, while the father lived with the mother and sometimes

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took care of the child, he was a guest in the mother’s home). Thus, Robleto’s
father did not legitimate him under California law.
Because Robleto was under 18 when his mother became a naturalized
citizen, his father never legitimated him, and the other conditions of 8 U.S.C. §
1432 were satisfied, Robleto acquired derivative citizenship when his mother
naturalized. Therefore, he was not subject to removal.
We GRANT the petition for review.

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