Gamez-Villagrana

MEMORANDUM *

Arturo Gamez-Villagrana petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order finding him removable based on a prior conviction involving a controlled substance. Gamez-Villagrana argues that he is not removable because he acquired citizenship through his mother, Simona, a United States citizen who is now deceased.

“[T]he Constitution is violated when a person with a non-frivolous claim to U.S. citizenship is deported without receiving a judicial determination of that claim.” Rivera v. Ashcroft, 394 F.3d 1129, 1140 (9th Cir.2005) (as amended). Under 8 U.S.C. § 1252 (b)(5)(B), “If [a] petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner’s nationality is presented, the court shall transfer the proceeding to the district court ... for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought” under 28 U.S.C. § 2201 (authorizing declaratory judgment action).

A petitioner’s claim to citizenship based on the…