NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ILAI KANUTU KOON WAI YOU, No. 19-73310 Petitioner, Agency No. A097-735-242 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 18, 2020 Seattle, Washington Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,** District Judge. Ilai Koonwaiyou petitions for review of a Board of Immigration Appeals (“BIA”) decision affirming the denial of his motion to terminate removal proceedings. Koonwaiyou contends he is a U.S. national not subject to removal. We disagree. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. We have jurisdiction to consider Koonwaiyou’s nationality claim pursuant to 8 U.S.C. § 1252(b)(5). If the “record presents no genuine issue of material fact about the petitioner’s nationality, a reviewing court must decide the nationality claim.” Chau v. INS, 247 F.3d 1026, 1029 (9th Cir. 2001) (citing 8 U.S.C. § 1252(b)(5)(A)). If, however, a genuine issue of material fact exists, we “must transfer the proceeding to a district court for a de novo determination.” Id. (citing 8 U.S.C. § 1252(b)(5)(B)). Koonwaiyou was born in Western Samoa (now Samoa) in 1967 to a Western Samoan father and a mother who is now a U.S. national.1 Because the statutory regime in place at the time required that a child born abroad have two U.S. national parents to obtain derivative U.S. nationality at birth, Koonwaiyou did not obtain U.S. nationality at birth. See Nationality Act of 1940, Pub. L. No. 76-853, § 204(b), 54 Stat. 1137, 1139. Nearly two decades after Koonwaiyou’s birth, Congress lessened the requirements for obtaining derivative U.S. nationality for children born abroad, such that it was enough to have one U.S. national parent rather than two, so long as 1 The parties dispute whether Koonwaiyou’s mother, who obtained U.S. national status decades after Koonwaiyou’s birth, should retroactively be considered to have been a U.S. national at the time of Koonwaiyou’s birth. Because Koonwaiyou’s claim of U.S. nationality fails regardless of whether his mother’s U.S. nationality should be backdated for derivative nationality purposes, we decline to resolve this dispute. 2 the U.S. national parent could satisfy certain physical presence requirements. See Act of Aug. 27, 1986, Pub. L. No. 99-396, § 15(a), 100 Stat. 837 (codified at 8 U.S.C. § 1408(4)). Congress made this change retroactive, but for those like Koonwaiyou born under the prior regime, it imposed an additional requirement: In the case of a person born before the date of the enactment of this Act . . . the status of a national of the United States shall not be considered to be conferred upon the person until the date the person establishes to the satisfaction of the Secretary ...
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