Nehme v. Immigration & Naturalization Service

• Decision Date: 05 June 2001
• Docket Number: No. 00-60111,00-60111
• Parties: (5th Cir. 2001) ERNEST ISKANDAR NEHME, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 415

252 F.3d 415 (5th Cir. 2001)

ERNEST ISKANDAR NEHME, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 00-60111

UNITED STATES COURT OF APPEALS, Fifth Circuit

June 5, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, Chief Judge, and HIGGINBOTHAM and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In this case we are called upon primarily to decide whether Congress complied with the Constitution's mandate of uniformity when it established the rules of derivative naturalization under former § 321 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1432 (2000). We hold that Congress has done so, and that Petitioner has failed to prove that he was ever naturalized under this or any other section of the INA. Petitioner is therefore an alien, and because he is removable by reason of having committed an aggravated felony, we lack jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C). Accordingly, we DISMISS his petition.

I. BACKGROUND

Petitioner Ernest Iskander Nehme ("Nehme") was born in 1963 in Lebanon to parents who were Lebanese citizens. He emigrated to the United States in 1970 as a lawful permanent resident, and resided in Pennsylvania with his parents. In 1980, when Nehme was sixteen, his father became a naturalized citizen. At that time, Nehme's parents were informally separated, and his mother lived on and off with the family. However, his parents never obtained a judicial separation or custody decree, and because of their religious beliefs, they never divorced. Throughout this time, Nehme resided continuously with his father in Pennsylvania. His mother eventually became a naturalized citizen in 1987, when Nehme was twenty-three years old.

In 1999, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Nehme, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony.¹ Before the Immigration Judge ("IJ"), Nehme argued that he had automatically become a naturalized citizen under former 8 U.S.C. § 1432 when his father was naturalized, and therefore he was not subject to deportation. Section 1432 provided in pertinent part:

(a) A child born outside of the United States of alien parents . . . becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

* * *

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents . . . ; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause . . . (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

Nehme conceded to the IJ that by the time his father became a naturalized citizen, Pennsylvania had abolished the judicial mechanism known as "legal separation" of married persons. However, a couple could obtain a divorce in Pennsylvania if they lived apart with the intent to cease cohabitation as husband and wife. Nehme argued that because a formal process of "legal separation" did not exist in Pennsylvania in1980, and because his parents had actually separated and met the prerequisite for divorce, his parents were "legally separated" under Pennsylvania law. Consequently, he had been automatically naturalized under § 1432 when his father naturalized, because at that time he was (1) in the actual, uncontested custody of his father, (2) under eighteen and (3) residing in the United States as a permanent resident.²

The IJ rejected Nehme's argument, finding that his parents had never obtained a legal separation when that process existed under Pennsylvania law, and that at the time of his father's naturalization in 1980, legal separation was no longer possible in that state. The IJ then ordered that Nehme be deported, and he appealed his case to the Board of Immigration Appeals ("BIA"). The BIA adopted the IJ's decision and dismissed the appeal.

Nehme now petitions this court to review the BIA's decision. He argues that the decision of the IJ and the BIA that Nehme's citizenship should be determined by reference to Pennsylvania law rather than federal standards was arbitrary, capricious, and contrary to INS precedent. He also contends that the legal separation requirement in former 8 U.S.C. § 1432(a)(3) is not a "uniform Rule of Naturalization" as required by Article I, Section 8, Clause 4 of the Constitution. Finally, he argues that the Child Citizenship Act of 2000, which repealed § 1432 and removed the "legal separation" requirement from the rules of derivative naturalization, should be applied to him retroactively.

II. ANALYSIS

A. Jurisdictional Requirements and Standard of Review

We must begin by determining whether we have jurisdiction to review the BIA's decision. We review our jurisdiction de novo. Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 121 S. Ct. 757, 148 L. Ed. 2d 660 (2001). Congress has specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court has jurisdiction to review deportation orders for aliens who are removable because they were convicted of aggravated felonies. Nonetheless, we always have jurisdiction to consider whether the specific conditions exist that bar our jurisdiction over the merits, namely, whether the petitioner is (1) an alien, (2) who is deportable, (3) for committing the type of crime that bars our review. Max-George v. Reno, 205 F.3d 194, 199 (5th Cir. 2000) (quoting Richardson v. Reno, 180 F.3d 1311, 1315 (11th Cir. 1999)). Moreover, we "must determine whether the particular provisions classifying the petitioner under the jurisdiction-stripping provision . . . are being constitutionally applied." Id. at 199-200. Therefore, for jurisdictional purposes only, we may determine whether Nehme may be properly classified as an alien.

However, the INS argues that Nehme must overcome a second jurisdictional hurdle imposed by Congress in 8 U.S.C. § 1252(d)(1). That section provides that a court may review a final order of removal only if the alien has exhausted all his administrative remedies. We have stated that when exhaustion is statutorily mandated, it is a jurisdictional requirement. Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986). See also Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997) ("We have no jurisdiction to consider issues that were not presented to or considered at the administrative level on appeal."). The INS correctly points out that before the IJ and the BIA, Nehme did not challenge the application of Pennsylvania law to his case, in fact, he assumed Pennsylvania law should govern. Likewise, he never challenged the constitutionality of the derivative naturalization rules in 8 U.S.C. § 1432. Therefore, he should not be permitted to object to the application of state law or to the validity of § 1432 on appeal.

The exhaustion requirement in 8 U.S.C. § 1252(d)(1) appears to be triggered only when we would otherwise have jurisdiction over the merits of Nehme's petition for review. However, we need not decide that issue for several reasons. First, our determination whether we have jurisdiction under the bar in 8 U.S.C. § 1252(a)(2)(C) will effectively decide the merits of this case. If Nehme is not an alien, then we must conclude both that we have jurisdiction, and that Nehme is not deportable. And, as we have already stated, in order to make this determination we may examine, de novo, (1) whether Nehme is an alien under the terms of INA, and (2) whether "the particular provisions classifying [him] under the jurisdiction-stripping provision . . . are being constitutionally applied." Max-George, 205 F.3d at 199-200. Under that formulation, we may consider Nehme's arguments that he became a citizen under § 1432, and if he did not, whether that provision is unconstitutional. However, we may not consider his specific claim that the decision of the BIA was arbitrary, capricious and contrary to INS precedent because that claim addresses the merits of the BIA's decision.

Second, even if the statutory exhaustion requirement applies, we would reach the same result. The BIA does not have jurisdiction to decide the constitutionality of acts of Congress. See Johnson v. Robison, 415 U.S. 361, 368, 94 S. Ct. 1160, 1166, 39 L. Ed. 2d 389 (1974). Therefore, Nehme would not be required to have exhausted his constitutional arguments before the BIA. Cf. Anwar v. INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997); see also Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999). Moreover, the Child Citizenship Act of 2000 became effective after Nehme's appeal to the BIA, so he could not have previously argued for its application. However, the exhaustion requirement prevents him from raising his arbitrary and capricious claim for the first time on appeal.

Finally, before proceeding with our analysis, we pause to consider the INS's contention that we should give Chevron deference to its interpretation of the INA in the course of our jurisdictional inquiry. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984). The INS's contention lacks merit. In Lopez-Elias, we stated that Chevron deference is not due "with respect to the enforcement of this court's jurisdictional limitations." 209 F.3d at 791. "[T]he determination of our jurisdiction is exclusively for the court to decide." Id.

B. Naturalization under 8 U.S.C. § 1432

As we have already observed, Nehme's argument before this court is somewhat different from the argument he...