Steven Bennett v. HHS

United States Court of Appeals
For the Eighth Circuit
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No. 23-3286
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Philip Myers,
lllllllllllllllllllllPetitioner,
v.
Pamela Bondi, Attorney General of the United States,
lllllllllllllllllllllRespondent.*
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 19, 2025
Filed: September 8, 2025
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Before COLLOTON, Chief Judge, ERICKSON and GRASZ, Circuit Judges.
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COLLOTON, Chief Judge.
Philip Myers petitions for review of an order of the Board of Immigration
Appeals denying his motion to reopen removal proceedings. We conclude that the
*Attorney General Bondi is substituted for her predecessor under Federal Rule
of Appellate Procedure 43(c)(2).

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agency did not abuse its discretion, so we deny the petition. Insofar as Myers claims
that he is a national of the United States, we reject his argument that one of the
requirements for automatic citizenship is unconstitutional.
I.
Myers, a native and citizen of Liberia born in August 1988, was adopted by
Felicia Myers in November 1995. Myers entered the United States in September
1996 as a derivative beneficiary of his adoptive mother’s visa. His adoptive mother
became a naturalized United States citizen in July 2004. Myers claims that his
adoptive mother sexually abused him for many years, both in Africa and in the United
States.
Since his admission to the United States, Myers has sustained criminal
convictions for attempted receipt of stolen property and attempted financial
transaction card fraud in Minnesota, second degree burglary in Minnesota, and
interference with commerce by robbery under the Hobbs Act. In 2021, the
Department of Homeland Security initiated removal proceedings against Myers based
on conviction of an aggravated felony and conviction of two or more crimes
involving moral turpitude. See 8 U.S.C. §§ 1227(a)(2)(A)(ii), (iii), 1101(a)(43)(M),
(G), (F), (U) (2021); Dat v. United States, 920 F.3d 1192, 1194 (8th Cir. 2019). An
immigration judge sustained the charges of removability.
Myers appeared pro se before an immigration judge the following week. At
the hearing, Myers said that he wanted to pursue a claim of derivative citizenship
from his adoptive mother. The immigration judge explained that he did not have
authority to grant Myers citizenship, that such authority resides exclusively with the
United States Citizenship and Immigration Services (USCIS), and that the USCIS
already had determined that Myers was not eligible for derivative citizenship. In
2010, the USCIS rejected Myers’s claim because he failed to adduce evidence that he
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was in his adoptive mother’s legal and physical custody when she was naturalized.
See 8 U.S.C. § 1431(a)(3) (2004); see also id. §§ 1431(b), 1101(b)(1)(E)(i).
The immigration judge next made an “initial determination” that Myers was
mentally competent to undergo removal proceedings pro se without safeguards. The
judge found that Myers was oriented to time and place, understood why he was in
immigration court, and comprehended the nature of the proceedings. See In re M-A-
M-, 25 I. & N. Dec. 474, 479 (B.I.A. 2011). The judge then granted Myers a two-
week continuance to complete an application for relief from removal.
When Myers appeared at his next hearing pro se without a completed
application, the immigration judge granted a continuance. At the next hearing, Myers
was represented by counsel. Myers then secured several continuances to investigate
and pursue his derivative citizenship claim. In December 2021, Myers’s attorney
withdrew due to “a fundamental disagreement about the viability” of a renewed
application for derivative citizenship. The immigration judge granted Myers two
more continuances to seek another attorney and to complete an application for relief
from removal. In January 2022, Myers filed a pro se application for asylum,
withholding of removal, and protection under the Convention Against Torture.
In February 2022, the immigration judge decided that Myers was competent to
proceed without counsel. The judge explained that he considered medical
documentation submitted by the Department, his observations of Myers’s conduct
during the course of removal proceedings, and his observations of Myers’s
interactions with his counsel. The immigration judge then denied Myers’s application
for relief from removal, and ordered him removed to Liberia.
Myers filed a pro se notice of appeal to the Board. He argued that the
immigration judge’s assessment of his competency was procedurally inadequate and
that the judge erred in determining that he was competent to proceed pro se without
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safeguards. In a subsequent letter to the Board, Myers reiterated that he should have
been found incompetent to proceed without counsel based on his medical record, his
statements during removal proceedings, and a determination of a federal district court
in 2012 that he was incompetent to stand trial on federal robbery charges due to his
“diminished mental capacity.”
The Board determined that the immigration judge’s competency finding was
not clearly erroneous and dismissed the appeal. The Board concluded that Myers had
a rational and factual understanding of the nature and object of the proceedings, was
able to consult with an attorney, and had the opportunity to present evidence and ask
questions. See In re M-A-M-, 25 I. & N. Dec. at 479. The Board also observed that
Myers did not challenge his removability or the immigration judge’s denial of his
application for relief from removal.
Myers then obtained counsel and moved to reopen removal proceedings on four
grounds: (1) he had a pending motion with the USCIS to reopen and reconsider the
denial of his application for derivative citizenship; (2) the agency erroneously
concluded that he was competent to undergo removal proceedings without an
attorney; (3) the agency erred by denying his application for relief from removal
because Myers is homosexual and could be persecuted in Liberia, and Myers had
submitted an amended application for asylum and withholding of removal; and (4)
he had a pending application with the USCIS for a T-visa for victims of sex
trafficking based on the claim that he was a victim of sex trafficking by his adoptive
mother.
Myers moved to stay removal pending adjudication of his motion to reopen
removal proceedings and his applications with the USCIS. The Board denied the
motion, and Myers was removed to Liberia in March 2023. The Board then denied
Myers’s motion to reopen, and Myers petitions for review.
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II.
Before addressing Myers’s challenges to the Board’s decision, we observe that
he appears to claim within those challenges that he is a citizen of the United States.
Myers maintains that he derived citizenship from his adoptive mother’s naturalization
in July 2004. See 8 U.S.C. § 1431 (2004). Even where the USCIS has previously
rejected a claim of citizenship, a petitioner may assert citizenship defensively in
response to removal proceedings, and may challenge a denial in the court of appeals.
Garza-Flores v. Mayorkas, 38 F.4th 440, 443 (5th Cir. 2022); Anderson v. Holder,
673 F.3d 1089, 1096 & n.6 (9th Cir. 2012). When a petitioner claims to be a national
of the United States, the court of appeals must determine de novo whether there is a
genuine issue of material fact about the petitioner’s nationality, and either decide the
claim or transfer the proceeding to a district court. 8 U.S.C. § 1252(b)(5) (2025); see
Moussa v. Immigr. & Naturalization Serv., 302 F.3d 823, 827 (8th Cir. 2002);
Shepherd v. Holder, 678 F.3d 1171, 1182 (10th Cir. 2012).
A “child” born outside the United States automatically becomes a citizen of the
United States “when all of the following conditions have been fulfilled: (1) At least
one parent of the child is a citizen of the United States, whether by birth or
naturalization[;] (2) The child is under the age of eighteen years[;] (3) The child is
residing in the United States in the legal and physical custody of the citizen parent
pursuant to a lawful admission for permanent residence.” 8 U.S.C. § 1431(a) (2004).
Myers asserts that he satisfies these requirements because his adoptive mother
became a citizen on July 7, 2004, when he was under the age of eighteen, and he
resided in the legal and physical custody of his mother when she was naturalized.
Although the USCIS concluded that Myers presented insufficient evidence that he
lived with his mother on July 7, 2004, Myers testified in the removal proceeding that
“I was living with my mom when she got her citizenship.” A.R. 808. Myers’s
testimony thus may create a genuine issue of material fact about whether he satisfies
the requirements of § 1431(a).
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The provisions of § 1431(a), however, apply to a “child” adopted by a United
States citizen parent only in specified circumstances—i.e., “if the child satisfies the
requirements applicable to adopted children under [8 U.S.C. § 1101(b)(1)].” 8 U.S.C.
§ 1431(b) (2004). As of 2004, when Myers’s adoptive mother became a naturalized
citizen, § 1101(b)(1) defined “child” to include “a child adopted while under the age
of sixteen years if the child has been in the legal custody of, and resided with, the
adopting parent or parents for at least two years.” Id. § 1101(b)(1)(E)(i) (emphasis
added).
Myers does not argue that he had been in the legal custody of, and resided with,
his adopting parent for at least two years. He contends, rather, that the two-year
custody and residency requirement is unconstitutional as applied to a child who was
abused by the adoptive parent. He observes that Congress in 2006 created an
exception to the two-year requirement “if the child has been battered or subject to
extreme cruelty by the adopting parent . . . residing in the same household.” Id.
§ 1101(b)(1)(E)(i) (2006); Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, § 805(d), 119 Stat. 2960, 3056-57
(2006). Myers contends that it would be unconstitutional to deny him a comparable
exception as of 2004.
The Constitution vests Congress with the “Power . . . [t]o establish an uniform
Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, and the “scope of judicial
inquiry into immigration legislation” is “limited.” Fiallo v. Bell, 430 U.S. 787, 792
(1977). The 2004 version of § 1101(b)(1)(E)(i) reflects a legislative policy decision
to distinguish between adopted children who have lived in the custody of their
adopting parents for at least two years and those who have not, without inquiry into
the conditions of life in the home. Although “it could be argued that the line should
have been drawn at a different point,” id. at 798, it is not the proper role of the courts
“to probe and test the justifications for the legislative decision” and “substitute our
political judgment for that of the Congress.” Id. at 798-99. As with the distinction
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between natural mothers and natural fathers in Fiallo, we conclude that the applicable
definition of “child” and its two-year custody requirement is not unconstitutional.
For these reasons, Myers has not presented a genuine issue of material fact on
the question whether he derived citizenship from his adoptive mother’s naturalization.
His implicit nationality claim is therefore denied. See 8 U.S.C. § 1252(b)(5)(A)
(2025).
III.
We review the Board’s denial of motions to reopen or reconsider for abuse of
discretion. Mshihiri v. Holder, 753 F.3d 785, 789 (8th Cir. 2014). Because Myers
is an alien convicted of crimes covered in § 1227(a)(2)(A)(ii) & (iii), we have
jurisdiction to consider only constitutional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(C)-(D) (2025).
A.
Myers first contends that the Board should have granted his motion to reopen
removal proceedings based on his pending motion with the USCIS to reopen and
reconsider its previous denial of his application for derivative citizenship. To justify
reopening, Myers was required to adduce new evidence that was neither available nor
discoverable before the previous hearing and would be material to the outcome of the
proceeding. 8 C.F.R. § 1003.2(c)(1) (2021); see also Xiu Ling Chen v. Holder, 751
F.3d 876, 878 (8th Cir. 2014).
The immigration judge found that the USCIS previously rejected Myers’s
application for derivative citizenship because he failed to adduce evidence showing
he was in his adoptive mother’s physical and legal custody at some point between her
naturalization in July 2004 and his eighteenth birthday in August 2006. As the Board
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observed, Myers did not identify new evidence on this issue in his November 2022
motion to reopen with the USCIS or his November 2022 motion to reopen with the
Board. Accordingly, the Board did not abuse its discretion by denying his motion to
reopen on this point.
B.
Myers next seeks review of the agency’s determination that he was mentally
competent to participate in removal proceedings pro se without safeguards. In his
motion of November 2022, Myers argued that the Board should reopen his removal
proceedings because he was not competent during the hearing and required the
safeguard of an attorney. The Board construed the filing as a motion to reconsider
the Board’s decision of August 12, 2022, which affirmed the immigration judge’s
competency determination, because Myers raised the same factual and legal
arguments as the filings that the Board addressed in its August decision. Compare
8 C.F.R. § 1003.2(c)(1) (2021) (a motion to reopen must state new facts), with id.
§ 1003.2(b)(1) (a motion to reconsider must specify factual or legal errors in the prior
Board decision); In re O-S-G-, 24 I. & N. Dec. 56, 58 (B.I.A. 2006) (a petitioner
cannot just resubmit, in essence, the same brief and seek reconsideration by generally
alleging error in prior decision). The Board denied Myers’s motion regarding the
agency’s competency determination because he failed to meet the thirty-day filing
deadline for motions to reconsider. See 8 C.F.R. § 1003.2(b)(2) (2021).
In his opening brief, Myers does not challenge the Board’s construction of his
November 2022 filing as a motion to reconsider. He addresses only the underlying
merits of the agency’s competency determination. Myers thus waived any challenge
to a dispositive basis for the Board’s denial of his November 2022 motion, and we
need not address the Board’s alternative rationale. See Chay-Velasquez v. Ashcroft,
367 F.3d 751, 756 (8th Cir. 2004).
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C.
Myers next complains that the agency erroneously denied his request for relief
from removal based on fear of persecution in Liberia on account of his sexual
orientation. As the Board concluded, however, Myers failed to address the
immigration judge’s conclusion that he is ineligible for asylum and withholding of
removal because he has been convicted of a “particularly serious crime” and
sentenced to at least five years’ imprisonment. See 8 U.S.C. §§ 1158(b)(2)(A)(ii),
(B)(i); 1231(b)(3)(B)(ii), (iv) (2021); 8 C.F.R. § 1208.16(d)(2) (2021). Myers did not
properly exhaust a claim under the Convention Against Torture before the Board in
August 2022 and November 2022, so we do not consider that issue on review. See
8 U.S.C. § 1252(d)(1) (2025); Abdi Omar v. Barr, 962 F.3d 1061, 1063 (8th Cir.
2020).
D.
Myers argues finally that the Board abused its discretion by denying his motion
to reopen removal proceedings on the basis of his pending application for a T-visa.
To be eligible for a T-visa, an applicant must be physically present in the United
States or certain of its territories. 8 U.S.C. § 1101(a)(15)(T)(i)(II) (2021); 8 C.F.R.
§ 214.11(b)(2) (2021). As Myers acknowledges, however, the USCIS denied his
application for a T-visa in June 2024 because he was removed to Liberia in March
2023. Because Myers is no longer physically present in the United States, and his
application for the visa has been denied, his challenge to the Board’s denial of his
motion to reopen on this ground is moot. See Mendoza-Flores v. Rosen, 983 F.3d
845, 847 (5th Cir. 2020).
* * *
The petition for review is denied.
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