No. 22-1496

SUNIL KUMAR SHARMA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE DEPARTMENT OF HOMELAND SECURITY

Before

Kayatta, Lynch, and Howard, Circuit Judges.

Pablo A. Lozano, Law Student Advocate, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Andrew Santana, Serena Hughley, Shing-Shing Cao, and Farris Peale, Law Student Advocates, were on brief, for petitioner. David Kim, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, and Matthew A. Connelly, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, were on brief, for respondent.

April 28, 2023 KAYATTA, Circuit Judge. Petitioner Sunil Sharma challenges a Final Administrative Removal Order on grounds that he derived U.S. citizenship as a child. Because we hold that he did not, we deny his petition.

I.

Sharma was born in India in 1979 to Indian-citizen parents. While he was a young child and still living in India, his mother moved to the United States and obtained lawful permanent resident status. In April 1990, after Sharma's father had died, Sharma came to the United States to live with his mother in Massachusetts. According to Sharma, he "entered as a child without lawful immigration status."

On August 24, 1995, Sharma's mother became a naturalized U.S. citizen. Then, on January 3, 1996, when Sharma was sixteen years old, Sharma's mother filed an application for lawful permanent resident status on his behalf. Sharma says that he went "to an interview with an immigration officer" at which "the officer said that [his] application could not be approved at that time because [he] had a juvenile [criminal] record and that [he] would need to come back." Sharma does not dispute that he had a juvenile record as of the date of that interview.

Subsequently, on April 16, 1996 -- while Sharma's application was still pending -- he was involved in a shooting at a restaurant that resulted in the death of a bystander. He was

- 2 - arrested later that same year and, on April 28, 1999, was convicted of second-degree murder and sentenced to life in prison by a Massachusetts state court.

Sharma's permanent residence application was denied on June 17, 1996 for "lack of prosecution," after he failed to appear for an adjustment interview scheduled for May 22, 1996 without "notify[ing] [the government] of [his] inability to appear for [the] interview." Sharma makes no allegation that he had been arrested by the date of the interview,1 but does allege that he "could not attend" -- even though he had "planned to go" -- because he "got into trouble with the law."

After serving over 20 years in prison, Sharma was granted parole in 2021. On April 7, 2022, the Department of Homeland Security (DHS) issued the Notice of Intent to Issue a Final Administrative Removal Order relevant to this petition. The notice alleged that Sharma was neither a citizen of the United States nor lawfully admitted for permanent residence, and charged him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined in 8 U.S.C § 1101(a)(43)(A). In response, Sharma asserted that he was not removable because he had derived U.S. citizenship through his

1 The date of his arrest is not clear from the record, but the earliest potential arrest date refer