Opinion
No. 3:02-CV-01012-L
August 22, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE UPON RECOMMITMENT
The District Court recommitted this proceeding to the United States Magistrate Judge for findings, conclusions and a recommendation taking into consideration Respondents' Supplemental Motion to Dismiss.
Procedural History
Petitioner, a purported naturalized United States citizen, filed this proceeding for a writ of habeas corpus permanently restraining Respondents from seeking to detain, deport, or exclude him from the United States. Petitioner also seeks a writ of mandamus to the Immigration and Naturalization Service (INS) ordering them to issue him a certificate of United States citizenship. Additionally, he seeks a declaratory judgment establishing that he is a United States citizen. Petitioner claims the District Court has habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241, federal question jurisdiction under 28 U.S.C. § 1331, and mandamus jurisdiction under 28 U.S.C. § 1651 (the All Writs Act).
Respondents filed a motion to dismiss on August 15, 2002. This Court entered its findings, conclusions and recommendation on February 12, 2003. No objections were filed. Before the District Court considered whether to accept the recommendation, Respondents filed a Supplemental Motion to Dismiss. The District Court recommitted the proceeding to this Court. On March 19, 2003, Petitioner filed a response to the Supplemental Motion to Dismiss.
The Court has reconsidered its previous findings, conclusions and recommendation in light of the supplemental pleadings. The Clerk of Court is directed to vacate the February 12, 2003, recommendation. This Court's findings, conclusions and recommendation follow:
FINDINGS AND CONCLUSIONS Statement of Facts
The following undisputed facts are taken from the petition, its attachments, and the Appendix to Response, filed August 15, 2002.
Petitioner was born on June 21, 1967, in Georgetown, Guyana. He became a lawful permanent resident of the United States on January 23, 1991. Petitioner was found guilty of possession with the intent to deliver a controlled substance in the 204th Judicial District court of Dallas County, Texas on August 1, 1995. He was sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ-ID) for eight years. Petitioner appealed his criminal conviction.
While Petitioner's appeal was pending, he filed an application for naturalization with the INS in Dallas, Texas. He disclosed his conviction and its pending appeal in his application. Pursuant to an INS notice, he appeared for his naturalization interview and examination on August 13, 1996. Petitioner claims that (1) the examiner administered the citizenship test, (2) Petitioner passed the test, (3) the examiner administered the "Sworn Oath of Allegiance," (4) Petitioner then signed the oath form, and (5) the examiner completed a post-interview form from which to prepare Petitioner's certificate of United States citizenship. Petitioner never received a citizenship certificate.
The court notes that the form, Exhibit 4 to the Petition, contains a number of blanks which were not filled in, such as "Oath Location" and whether it would be "Administrative" or "Judicial."
Petitioner does not allege that the oath of citizenship was administered to him in a public ceremony or that he was excused from a public ceremony, as required by 8 C.F.R. § 337.2. Moreover, he does not allege that the oath was administered by one of the officers authorized by law to administer the oath or that one of those officers delegated their authority to someone else. See 8 C.F.R. § 337.2.
Officials who may administer the oath are the Attorney General, the Commissioner, a District Director, a Deputy District Director, an Officer-In-Charge, or an Assistant Officer-In-Charge. See 8 C.F.R. § 337.2.
On June 27, 1997, Petitioner's criminal conviction was affirmed on appeal. On January 10, 2000, the INS initiated removal proceedings pursuant to 8 U.S.C. § 1229a by issuing a "Notice to Appear." The notice alleges that (1) Petitioner is not a citizen or national of the United States, (2) is a native of and citizen of Guyana, (3) was admitted to the United States as a Permanent Resident, (4) was convicted for the offense of Possession with Intent to Deliver a Controlled Substance, Cocaine, in Dallas County, Texas and (5) was sentenced to eight years in the custody of TDCJ-ID. By an order dated February 29, 2000, an Immigration Judge ("IJ") found Petitioner removable based upon his admissions and the evidence in the record. The IJ further found that Petitioner declined to apply for relief and ordered his removal from the United States. Petitioner waived an appeal of the removal order.
For three and one-half years after Petitioner's purported naturalization, he made no claim to United States citizenship. Two months after he was ordered removed, he initiated Freedom of Information Act requests to try to prove that he is a United States citizen. He wrote a number of letters to the INS and to the IJ concerning his new claim. In a writing of June 2, 2000, Petitioner states,
Petitioner attaches copies of letters dated April 19, 2000; April 21, 2000; May 3, 2000; June 2. 2000; June 8, 2000; and June 13, 2000.
Exhibit 7 to the Petition at 2.
"I have done everything in my power to help in affecting [sic] my removal in a timely fashion. I have not appealed my case. I am not seeking review, or relief. I even have a citizenship which is being kept under the table, anyhow I am not claiming citizenship. And [I] have fully cooperated with your officers. . . ."
Petitioner's application for citizenship was sent to the Examinations Unit on June 15, 2000. In a "Superseding Decision," the INS determined that Petitioner was not eligible for citizenship because of lack of good moral character resulting from his criminal conviction. Petitioner was notified he had thirty days to appeal the decision by filing a request for hearing and that in the absence of such a request, the decision would be final. Petitioner again failed to appeal.
On July 13, 2000, Petitioner filed a Motion to Reopen the removal proceeding, alleging that he was a naturalized citizen of the United States. Respondent opposed the motion. The IJ found that the motion to reopen was not supported by sufficient evidence and denied it. Petitioner appealed to the Board of Immigration Appeals (BIA). His appeal was denied in December of 2000. Petitioner did not appeal to the Fifth Circuit Court of Appeals. See 28 U.S.C. § 252(b)(1) (requiring that the petition for review be filed not later than thirty days after the date of the final order of removal).
The Court is unable to determine the exact date of the BIA's decision because the stamped date is not clear. (Respondent's Appendix at 14.)
Petitioner claims that he should not be removed because he is a United States citizen. He urges that the INS cannot deny that he became a citizen in 1996 by taking an Oath of Allegiance before an examining officer who was conducting his interview and examination on his application for citizenship.
Issues
Respondents contend in their "Supplemental Motion to Dismiss" that this Court lacks jurisdiction to consider Petitioner's claim of United States citizenship because the terms of 8 U.S.C. § 1252(b)(9) act as an "unmistakable zipper," channeling review of questions of citizenship arising in the context of a removal proceeding to the appropriate Circuit Court of Appeals. Petitioner, the party seeking to invoke federal jurisdiction, bears the burden of demonstrating that the exercise of that jurisdiction is proper. See Rivera-Sanchez v. Reno, 198 F.3d 545, 546 (5th Cir. 1999). Petitioner acknowledges that the Circuit Court is the proper forum for determination of the question of whether a foreign-born person, alleged by the Government to be an "alien," may be a United States citizen and therefore not subject to deportation. (Response at 2.) Petitioner, in fact, requests that this Court transfer this case to the Fifth Circuit Court of Appeals if this Court determines that it lacks jurisdiction. (Id.)
Petitioner contends that, despite the statutory language to the contrary in 28 U.S.C. § 1252, the District Court has jurisdiction to consider whether or not a foreign-born person, alleged to be an alien by the Government, may be deported. Petitioner relies upon two United States Supreme Court decisions, Ng Fung Ho v. White, 259 U.S. 276 (1922) and Trap v. Dulles, 356 U.S. 86(1958).
Analysis I.
Under the Immigration and Nationality Act ("INA"), only aliens may be deported from the United States. See 8 U.S.C. § 1227. An "alien" is defined as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). Under the INA, a "national" is "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). Petitioner claims that he is a United States national because on August 13, 1996, pursuant to an application for citizenship, an INS examiner interviewed him and administered the "Sworn Oath of Allegiance to the United States" to him at the interview.
This Court does not have jurisdiction to consider Petitioner's claim that he is a United States national; that question can be decided only by the court of appeals. See Baeta v. Sonchik, 273 F.3d 1261, 1263 (9th Cir. 2001); Batista v. Ascroft, 270 F.3d 8, 11-12 (1st Cir. 2001); Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001); Hajjoui v. Estrada, No. 3:02-CV-1650-P at 2 (N.D. Tex. Feb. 18, 2003) (unpublished); Rivas v. Ashcroft, No. 01-CV-5871, 2002 WL 2005797, at * 4 (S.D.N.Y. Aug.29, 2002) (unpublished); Clark v. I.N.S., 00-CV-1906, 2000 WL 1456944 (N.D.Cal. Sept.20, 2000) (unpublished).
"[O]nce removal proceedings have been initiated, a petition for review under 8 U.S.C. § 1252(b)(5) is the only avenue by which a person may seek a judicial determination of his or her status as a national of the United States." Chau v. I.N.S., 247 F.3d 1026, 1028 n. 2 (9th Cir. 2001). In Baeta, the Ninth Circuit concluded that § 1252(b)(5) "vests jurisdiction in the court of appeals" "for entertaining assertions of American citizenship [or national status] made in the context of removal proceedings." 273 F.3d at 1263; see Hughes, 255 F.3d at 755 ("In the context of an order of removal . . . the INA explicitly places the determination of nationality claims solely in the hands of the courts of appeals and (if there are questions of fact to resolve) the district courts."). The terms of 8 U.S.C. § 1252(b)(5) provide:
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
(B) Transfer if issue of fact
If the 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 of the United States 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 in the district court under section 2201 of Title 28 [providing for declaratory judgments].
(C) Limitation on determination
The petitioner may have such nationality claim decided only as provided in this paragraph.8 U.S.C. § 1252(b)(5) (emphasis added). The plain language of § 1252(b)(5) precludes a district court from considering a petitioner's claim of entitlement to United States national status in the first instance. As expressly provided, the claim must be presented to the court of appeals, which "shall transfer the proceeding to the district court" only if it finds "that a genuine issue of material fact about the petitioner's nationality is presented." 8 U.S.C. § 1252(b)(5)(B).
When a petitioner improperly brings such a claim in the district court, the appropriate procedure is to transfer the claim to the court of appeals pursuant to 28 U.S.C. § 1631, if it is in the interests of justice to do so. In this case, Petitioner failed to assert his claim of United States national status in the Fifth Circuit Court of Appeals within thirty days of the final order of removal. See 8 U.S.C. § 1252(b)(1). The thirty-day deadline for filing a petition for review of a final order of removal is jurisdictional. 8 U.S.C. § 1252(b)(1); Navarro-Miranda v. Ashcroft, 323 F.3d 325, 329 (5th Cir. 2003); Guirguis v. INS, 993 F.2d 508, 509 (5th Cir. 1993). The interests of justice do not require the District Court to transfer to the Circuit Court an untimely claim that is barred on jurisdictional grounds.
The terms of Section 1631 provide:
Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.28 U.S.C. § 1631.
II.
Petitioner claims that the District Court has habeas corpus jurisdiction to consider his nationality claim even if he failed to file a timely petition for judicial review in the Fifth Circuit Court of Appeals pursuant to 8 U.S.C. § 1252. Petitioner relies upon Ng Fung Ho v. White, 259 U.S. 276 (1922) and Trap v. Douglas, 356 U.S. 86 (1958). In Ng Fung Ho, the United States Supreme Court considered the construction of the Chinese Exclusion Acts to determine whether a resident of the United States who claims to be a citizen may be deported upon executive order. Ng Fung Ho, 259 U.S. at 282. The Court determined the claimants were entitled to a judicial determination of their claims that they were citizens of the United States. Ng Fung Ho, 259 U.S. at 285. Petitioner admits that no judicial review procedure was in place when Ng Fung Ho was decided and also admits that such a procedure is available today pursuant to 8 U.S.C. § 1252. The United States Supreme Court's decision in Ng Fung Ho does not afford Petitioner relief. A judicial determination was available to Petitioner in the Fifth Circuit Court of Appeals.
The other case on which Petitioner relies, Trop, 356 U.S. at 88, also fails to demonstrate that the District Court has habeas corpus or declaratory judgment jurisdiction to decide Petitioner's claim that he should not be removed because he is a United States citizen, In Trop, the plaintiff sought a declaratory judgment that he had not lost his United States nationality because he had been convicted by a military court of desertion from the United States Army during wartime and dishonorably discharged. The United States Supreme Court held unconstitutional (as beyond the war powers of Congress) a statute authorizing expatriation of a citizen even though that citizen had made no attempt to give allegiance to a foreign power. A purely legal question was before the Court, i.e., the constitutionality of a particular statute that had been applied to the plaintiff. This case is both factually and legally distinguishable from Trop. The United States Supreme Court's decision in Trop simply does not stand for the proposition Petitioner asserts, i.e., that habeas corpus jurisdiction remains in the District Court to decide a claim of United States nationality in order to block a final order of removal issued by the INS when a full panoply of judicial review was available. Petitioner's reliance on Trap is not well founded.
Finally, Petitioner argues that the United States Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001) entitles him to bring a habeas corpus action in District Court at any time to determine citizenship, irrespective of the requirements of the IIRIRA. Petitioner claims that the facts with respect to his claim of citizenship are in dispute and that discovery is needed to resolve these questions.
In the immigration context, judicial review and habeas corpus have historically distinct meanings. St. Cyr, 533 U.S. at 311. This Court has jurisdiction pursuant to 28 U.S.C. § 2241 only to review "pure" questions of law with respect to whether a petitioner's statutory or constitutional rights have been violated. St. Cyr., 121 S.Ct. at 2287. Petitioner's claims to habeas corpus relief are unavailing. He makes no colorable claims that his statutory or constitutional rights have been violated. Petitioner alleges that his deportation would constitute cruel and unusual punishment in violation of the Eighth Amendment. Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1951). Therefore, deportation is not "punishment." Cortez v. Immigration and Naturalization Service, 395 F.2d 965, 967 (5th Cir. 1968). Petitioner does not state a colorable Eighth Amendment claim.
An alien has no constitutional right to become a naturalized citizen. Rather, "[naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the alien may claim as of right only upon compliance with the terms which Congress imposes." United States v. Macintosh, 238 U.S. 605, 615 (1931), overruled on other grounds by Girouard v. U.S., 328 U.S. 61, 66 (1946).
Finally, Petitioner claims in his response to the Supplemental Motion to Dismiss that the expulsion of a United States citizen would implicate a fundamental Fifth Amendment liberty interest. The Fifth Amendment prohibits the government from depriving an individual of life, liberty, or property without due process of law. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976). Due process is a flexible concept which calls for such protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Petitioner received notice and the opportunity to be heard on more than one occasion. This is not a case where the administrative procedures denied Petitioner judicial review. Petitioner's first opportunity for judicial review was an appeal from the order of removal. Petitioner waived that appeal. He alleges that he missed that opportunity for judicial review because he failed to discover that he had become a United States citizen until after he had admitted in removal proceedings that he is a citizen of Guyana. However, Petitioner was given the opportunity for judicial review again after he made his claim of citizenship. He could have appealed to the Fifth Circuit from the denial of his motion to reopen the proceedings. This Court does not have jurisdiction pursuant to § 2241 to review or to retry that proceeding.
Petitioner does not present a pure question of law that would give this Court jurisdiction pursuant to 28 U.S.C. § 2241. Similarly, Petitioner's allegations do not give this Court's jurisdiction to issue a declaratory judgment or a writ of mandamus.
RECOMMENDATION
The District Court lacks subject matter jurisdiction because only a Circuit Court of Appeals has initial jurisdiction to consider Petitioner's claim to be a citizen of the United States in connection with his removal proceedings. Additionally, this Court lacks jurisdiction to determine Petitioner's citizenship pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1331, and 28 U.S.C. § 1651. The Court recommends that Respondent's Supplemental Motion to
Dismiss be GRANTED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).