Jordon v. Attorney General of U.S.

• Decision Date: 26 September 2005
• Docket Number: No. 03-2055.,03-2055.
• Citation: 424 F.3d 320
• Parties: Mark Anthony Herbert JORDON v. ATTORNEY GENERAL OF the UNITED STATES,<SMALL><SUP>*</SUP></SMALL> Appellant.
• Court: U.S. Court of Appeals — Third Circuit

424 F.3d 320

Mark Anthony Herbert JORDON v. ATTORNEY GENERAL OF

the UNITED STATES,^* Appellant.

No. 03-2055.

United States Court of Appeals, Third Circuit.

Argued May 9, 2005.

September 26, 2005.

Linda S. Wernery, John M. McAdams, Jr. (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellant.

Daniel I. Siegel, Ronald A. Krauss (Argued), Office of Federal Public Defender, Harrisburg, PA, for Appellee.

Before SLOVITER and FISHER, Circuit Judges, and POLLAK,^** District Judge.

OPINION OF THE COURT

FISHER, Circuit Judge.

Appellee Mark Anthony Herbert Jordon filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania challenging a final order to remove him on grounds that he is a non-removable, derivative United States citizen under the since-repealed 8 U.S.C. § 1432(a). The District Court granted Jordon's petition. Under the recently enacted REAL ID Act, we will vacate the District Court's decision, convert Jordon's habeas petition into a petition for review, and deny that petition for review because Jordon cannot establish a required element of derivative United States citizenship under § 1432(a).

I. Facts and Procedural History

Jordon was born in London, England, on May 7, 1970. Jordon's parents, Celeste and Herbert Jordon, were married at the time of his birth. In 1975, Jordon and his family moved to Jamaica. Shortly thereafter in 1975, Jordon's mother and sister moved to New York, New York, but Jordon stayed in Jamaica with his father. On March 15, 1979, Jordon came to the United States to live with his mother in New York. In 1980, Jordon adjusted his immigration status to that of lawful permanent resident.

On March 13, 1985, when Jordon was fourteen years old, his mother became a naturalized United States citizen. At some point in 1988, Jordon's father moved to New York to live with his wife and children. On May 7, 1988, Jordon turned eighteen years old. In 1989, Jordon's mother began divorce proceedings in New York state court. The divorce court ultimately found that Jordon's father had abandoned Jordon's mother at some time prior to June 30, 1988, but did not specify a precise date of abandonment. In 1991, the divorce became final and Jordon's father returned to Jamaica.

On March 11, 1991, Jordon was convicted in the Supreme Court of New York, Kings County, for criminal possession of a loaded pistol and received a one-year prison sentence. As a result of Jordon's conviction, an immigration judge found that he was deportable under 8 U.S.C. § 1231(a)(2)(C) and entered an order of deportation in absentia on August 16, 1994. Jordon filed a motion to reopen the order on April 24, 1997, asserting that he had not received notice of his deportation hearing. The Board of Immigration Appeals (BIA) denied the motion on May 22, 1997. On June 22, 1997, Jordon was deported to England.

In December 1999, Jordon returned to the United States and was admitted under the Visa Waiver Program.¹ On December 21, 1999, in connection with his readmission under the Visa Waiver Program, Jordon executed a Nonimmigrant Visa Waiver Arrival / Departure Form (Form I-94W). On the Form I-94W, Jordon checked "No" next to the question asking whether he had "ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities." The Form I-94W Jordon executed includes a "Waiver of Rights" provision which states that "I hereby waive any rights to review or appeal of an immigration officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation." The Form also includes a "Certification" provision stating that "I certify that I have read and understand all the questions and statements on this form. The answers I have furnished are true and correct to the best of my knowledge and belief." Jordon signed his name and entered the date "12/21/99" immediately below the "Waiver of Rights" and "Certification" provisions.

Apparently on the same day he executed the Form I-94W, Jordon was arrested and charged with illegal reentry under 8 U.S.C. §§ 1326(a) and 1326(b)(2).² On May 16, 2000, he pleaded guilty to a one-count information charging illegal reentry under 8 U.S.C. §§ 1326(a) and 1326(b)(2) and was later sentenced to a prison term of 57 months. He served his prison term at LSCI-Allenwood, Pennsylvania, a facility operated by the Federal Bureau of Prisons.

On October 18, 2000, the Immigration

and Naturalization Service (INS)³ filed an immigration detainer notice with the Bureau of Prisons.⁴ On December 13, 2000, the INS issued several documents relating to Jordon and his impending deportation as a result of his illegal reentry conviction. First, it issued a "Notice of Intent to Remove for Violating the Terms of Your Admission Under Section 217 of the Immigration and Nationality Act," which stated that INS had found that Jordon had reentered the United States under the Visa Waiver Program, executed a waiver in connection with his reentry of his right "to contest deportability before an Immigration Judge and the Board of Immigration Appeals, and to any judicial review of any and all of the above decisions: except for the filing of an application for political asylum[,]" and violated the terms of his readmission under the Visa Waiver Program by virtue of his illegal reentry conviction under 8 U.S.C. § 1326(a) and (b)(2).

The "Notice of Intent to Remove" also informed Jordon that the INS had entered an order to deport him from the United States. This order, also issued on December 13, 2000 and denominated "Order of Deportation, Section 217 and 241," stated that Jordon was not a United States citizen or national, was admitted under the Visa Waiver Program, and had violated the conditions of his admission under the Program by illegally reentering the United States under §§ 1326(a) and (b)(2). It also informed Jordon that he had executed the waiver set forth in the "Notice of Intent to Remove," and ordered that he be deported.

On September 5, 2001, while still serving his prison term for illegal reentry, Jordon filed a petition for writ of habeas corpus under 28 U.S.C. § 2241⁵ in the United States District Court for the Middle District of Pennsylvania challenging his impending deportation. Jordon argued, inter alia, that he was not removable because he was a derivative United States citizen under 8 U.S.C. § 1432(a) as a result of his mother's naturalization as a United States citizen. The magistrate judge recommended granting the petition and, on February 12, 2003, the District Court followed that recommendation, granted the petition and directed Jordon's immediate release from INS's "custody."⁶ The District Court found, among other things, that legal separation of one's parents within the meaning of § 1432(a)(3) need not occur prior to the naturalization of the custodial parent. In its view, § 1432(a)(3) requires only that the custodial parent's naturalization occur before the child turns eighteen, regardless of whether the child's parents legally separated before or after such naturalization. Thus, the District Court concluded, Jordon did not need to prove that his parents were legally separated at the time of his mother's naturalization.

BICE⁷ filed a timely notice of appeal on April 11, 2003. See Fed. R.App. P. 4(a)(1)(B). In May 2003, BICE filed a Fed.R.Civ.P. 60(b) motion, arguing that the District Court lacked subject matter jurisdiction because Jordon was not in immigration custody at the time he filed his petition as required by § 2241. On December 17, 2003, the District Court denied the Rule 60(b) motion.

II. Jurisdiction/Scope and Standard of Review

We begin, as we must, with jurisdiction. This appeal was briefed and argued in the pre-REAL ID Act era, and at that time presented jurisdictional questions regarding exhaustion, the "in custody" habeas requirement under § 2241, and the scope of a district court's habeas jurisdiction over nationality claims such as Jordon's in light of certain provisions of 8 U.S.C. § 1252. For the reasons that follow, we will convert this appeal into a petition for review and exercise jurisdiction over it under the REAL ID Act, thus obviating any need to address the questions relating to habeas jurisdiction.⁸

Several provisions of 8 U.S.C. § 1252 (both pre- and post-REAL ID Act) make the courts of appeals, not district courts, the first and often last judicial arbiter of nationality claims such as Jordon's. Section 1252(b)(5) expressly provides for the courts of appeals to review claims of nationality asserted in the course of agency removal proceedings, and to resolve them unless they present disputed factual issues, in which case they should be remanded to a district court for resolution in the first instance. See 8 U.S.C. § 1252(b)(5)(A) and (B). Section 1252(b)(5)(C) makes clear that nationality claims may be "decided only as provided in this paragraph." Prior to the REAL ID Act, courts were divided over whether these provisions created the "exclusive" means by which nationality claims at least initially make their way to the federal courts, and thus abrogated district courts' jurisdiction over habeas petitions raising such claims. Compare Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002) (concluding that while § 1252(b)(5) "does not foreclose completely the writ of habeas corpus[,]" and district courts retain habeas jurisdiction where the petitioner has no other judicial remedy, there is no habeas jurisdiction over nationality claims because "§ 1252(b)(5) provides a specific...