Nguyen v. Immigration and Naturalization Serv.

• Decision Date: 01 April 2000
• Docket Number: No. 98-60418,98-60418
• Citation: 208 F.3d 528
• Parties: (5th Cir. 2000) TUAN ANH NGUYEN; JOSEPH ALFRED BOULAIS, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 528

208 F.3d 528 (5th Cir. 2000)

TUAN ANH NGUYEN; JOSEPH ALFRED BOULAIS, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-60418

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 1, 2000

[Copyrighted Material Omitted]

Petition For Review of an Order of the Board of Immigration Appeals

Before POLITZ and STEWART, Circuit Judges, and LITTLE ^*, District Judge.

CARL E. STEWART, Circuit Judge:

Tuan Anh Nguyen ("Nguyen") and Joseph Alfred Boulais ("Boulais") appeal the Board of Immigration Appeals ("BIA") order of deportation entered against Nguyen. For the following reasons we grant the Immigration and Naturalization Service's motion to dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Nguyen was born September 11, 1969 in Vietnam. His mother is a Vietnamese citizen. The co-petitioner, Boulais, is Nguyen's natural father. ¹ Nguyen's mother abandoned him at birth. In June 1975, Nguyen was brought to the United States as a refugee becoming a lawful permanent resident pursuant to the Indochinese Refugee Act. Nguyen settled in Texas where he was raised by Boulais. Nguyen never had any subsequent contact with his natural mother.

On August 28, 1992, Nguyen plead guilty in Texas state court to two felony charges of sexual assault on a child. He was sentenced to eight years in prison for each crime. While confined in state prison in Huntsville, Texas, Nguyen was interviewed by an INS agent. He told the agent he was a native and citizen of Vietnam as well as the circumstances surrounding his entry in the United States. Based on this information, the INS began deportation proceedings against Nguyen on April 4, 1995. The INS argued that Nguyen was subject to deportation as an alien who had been convicted of two crimes involving moral turpitude and an aggravated felony under INA 241(a)(2)(A)(ii)and (iii) (codified at 8 U.S.C. 1251 (a)(2)(A)(ii)-(iii) (1994)).

While in state prison in Huntsville, Texas Nguyen appeared at two hearings before an immigration judge. At the first hearing, in November 1996, Nguyen indicated that he wished to challenge the show cause order on the ground that he was a United States citizen. The judge continued the hearing to allow Nguyen time to present proof of his citizenship. At the second hearing in January 1997, his attorney withdrew, and the immigration judge went forward and advised Nguyen of his procedural rights and conducted the hearing. During the colloquy conducted by the immigration judge, Nguyen testified under oath that he was not a citizen of the United States and that he was a citizen of Vietnam. He also admitted that he was convicted of the aforementioned crimes. On the basis of this testimony the immigration judge found that Nguyen was deportable. Nguyen timely appealed the immigration judge's order to the BIA.

While his appeal was pending, Mr. Boulais instituted a paternity proceeding in a Texas district court. In February 1998, based on DNA testing results Boulais obtained an "Order of Parentage" adjudging that he is the father of Nguyen. Since the BIA's briefing schedule called for submission of Nguyen's brief prior to the completion of DNA testing and the issuance of the paternity decree, Nguyen submitted an initial brief to the BIA outlining his United States' citizenship argument, but did not include the DNA evidence to support his claim. On April 15, 1998 he filed a supplemental brief which included the relevant evidence. On June 2, 1998, the BIA dismissed Nguyen's appeal.

On June 26, 1998 Nguyen filed a Motion to Reconsider with the BIA which has not to date been adjudicated. On July 2, 1998 Mr. Boulais and Nguyen filed a habeas petition in the United States District Court, challenging the BIA's deportation order and denial of relief from deportation. The petitioners also filed a request for declaratory judgment as to the citizenship issue. Because of the multi-layered requests in the district court action, the magistrate judge agreed to hold that matter in abeyance pending this court's decision. ² The INS has filed a motion to dismiss this appeal for lack of jurisdiction, and this court ruled that the motion should be carried with the case.

DISCUSSION

The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, Pub. L. No. 104-208, 309(c)(4)(G), 110 Stat. 3009, 626-27, contains the standards for criminal deportees whose deportation proceedings commence before IIRIRA's general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996. Section 309(c)(4)(G) provides that

there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(I) of such Act (as so in effect).

It has been established that this language "completely forecloses our jurisdiction to review decisions of the BIA." Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1999) (quoting Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997)). The petitioners do not contest that Nguyen was convicted of a crime specified in INA 241(a)(2)(A)(ii), namely crimes involving moral turpitude, and an aggravated felony.

If Nguyen is found to be an alien, this court will not have jurisdiction to review the BIA's decision. See Terrell v. INS, 157 F.3d 806, 809 (10th Cir. 1998) (concluding that petitioner who was being deported under IIRIRA 309(c)(4)(g) was not a citizen and therefore the court lacked jurisdiction to review BIA deportation order). Thus, it is a threshold question in the determination of our jurisdiction for this court to determine whether Nguyen is a citizen. See Okoro v. INS, 125 F.3d 920, 925 n. 10 (5th Cir. 1997) ("when judicial review depends on a particular fact or legal conclusion, then a court may determine whether that condition exists. The doctrine that a court has jurisdiction to determine its jurisdiction rests on this understanding") (quoting Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997)).

INA 106(a)(5) states:

[W]henever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim...

8 U.S.C. 1105a (5) (1994). ³ The petitioners argue that because the immigration judge and the BIA did not consider the proof regarding Nguyen's parentage this case should be transferred to the district court for de novo determination of these issue. However, the statute does not require that the BIA or immigration judge have heard this evidence, instead it only requires that no genuine issue of material fact exist. In February 1998, a Texas court entered an "Order of Parentage" which establishes that Boulais is Nguyen's biological father. Therefore, there are no genuine issues of material fact regarding Nguyen's nationality leaving this court to determine whether Nguyen is a citizen of the United States.

I. Citizenship

It has been recognized that there are only two sources of citizenship, birth and naturalization. Miller v. Albright, 523 U.S. 420, 423, 118 S.Ct. 1428, 1432, 140 L.Ed. 2d 575 (1998) (citing United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 477, 42 L.Ed. 890 (1898)). Those persons not born in the United States may only acquire citizenship by birth as provided by Acts of Congress. Miller, 523 U.S. at 423. Nguyen claims that although born in Vietnam he acquired citizenship at birth under INA 301. The provision states that:

The following shall be nationals and citizens of the United States at birth:...(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

8 U.S.C. 1401. However, there is an exception to this general provision for children born out of wedlock. INA 309 states that the aforementioned INA 301 applies to children born out of wedlock if:

(a)(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality at the time of the person's birth

(3) the father (unless deceased) has agreed in writing to provide financial support until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years-

(A) the person is legitimated under the law of the person's residence or domicile,

(B) the father acknowledges paternity of the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court...

(c) Notwithstanding the provisions of subsection (a) of this section, a person born...outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of said persons birth, and if the mother had been physically...