Socorro Colin-Villavicencio, a native of Mexico, entered the U.S. lawfully in 1988. Her mother naturalized in 1998 when Socorro was fifteen. Socorro applied for adjustment of status to lawful permanent resident but missed required appointments, causing the application to be abandoned and later reopened. She was placed in removal proceedings in 2015 following criminal convictions. She claimed derivative citizenship based on her mother's naturalization, but the Immigration Judge denied the claim because she was not a lawful permanent resident at the time of naturalization, a requirement under then-existing precedent. The Board of Immigration Appeals affirmed the denial of asylum and withholding of removal, and Socorro's claim for Convention Against Torture relief. She petitioned the Ninth Circuit for review, raising the citizenship claim for the first time at the appellate level.
The Ninth Circuit addressed two primary issues: derivative citizenship and Convention Against Torture relief. Regarding citizenship, the court noted that while Socorro waived the claim by not raising it below, it could excuse the waiver to avoid the manifest injustice of deporting a U.S. citizen. The court applied the law in effect when her mother naturalized in 1998 under 8 U.S.C. § 1432(a). To qualify, Socorro had to prove her mother naturalized while she was under eighteen and that her paternity had not been established by legitimation. The court found she could not meet the first pathway of § 1432(a)(3) because her parents never married, precluding a 'legal separation.' For the second pathway, the court applied Baja California law, which allowed a father to establish paternity by voluntarily acknowledging the child on the birth record. Since Socorro's birth certificate included her father's signature, the court held paternity was established by legitimation. Consequently, no genuine issue of material fact existed, and the court decided the claim itself rather than transferring it to district court. Regarding the CAT claim, the court found substantial evidence supported the BIA's denial. Socorro failed to show a particularized risk of torture or that Mexican police would acquiesce in such torture, as she offered only speculative conclusions about her brother's treatment.
The petition for review is denied, leaving the removal order in effect. The decision clarifies that a father's signature on a birth certificate in Baja California constitutes legitimation under 8 U.S.C. § 1432(a)(3), foreclosing derivative citizenship claims for children born out of wedlock where paternity is acknowledged. It also reinforces that appellate courts may decide nationality claims without transfer if the record contains no genuine dispute of material fact, even when the claim was waived below to prevent manifest injustice.
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