Johnson v. Whitehead
| Citation | 647 F.3d 120 |
| Decision Date | 24 May 2011 |
| Docket Number | Nos. 09–1981,10–1488.,s. 09–1981 |
| Parties | David JOHNSON, Petitioner–Appellant,v.J.D. WHITEHEAD, Warden; Calvin McCormick, Field Office Director; James T. Hayes, Jr., Director; Julie Myers, Assistant Secretary of Homeland Security; Michael Chertoff, Secretary of Homeland Security; Michael B. Mukasey, U.S. Attorney General, Respondents–Appellees.David Livingston Johnson, a/k/a Conrad Llewellyn, Petitioner,v.Eric H. Holder, Jr., Attorney General, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
OPINION TEXT STARTS HERE
ARGUED: Angad Singh, Washington College of Law, Appellate Advocacy Clinic, Washington, D.C., for Petitioner/Appellant. Eric Warren Marsteller, United States Department of Justice, Washington, D.C., for Respondents/Appellees. ON BRIEF: Ali A. Beydoun, Unrow Human Rights Impact Litigation Clinic, Washington, D.C., for Petitioner/Appellant. Tony West, Assistant Attorney General, Civil Division, Ada E. Bosque, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondents/Appellees.Before TRAXLER, Chief Judge, and WILKINSON and GREGORY, Circuit Judges.
In 2008, the Department of Homeland Security (“DHS”) initiated removal proceedings against David Johnson, alleging that he was an alien who had committed a variety of gun and drug offenses. Both the immigration judge and the Board of Immigration Appeals (“BIA”) agreed with DHS that Johnson was removable. Johnson then filed a petition for a writ of habeas corpus and a petition for review. He claims that he is a citizen under 8 U.S.C. § 1432(a)(3). As explained below, that claim falters under the plain meaning of this constitutionally valid act of Congress.
Johnson also argues that because he was declared a United States citizen in a 1998 removal proceeding, DHS is precluded from litigating the issue of his alienage in later removal proceedings. But this claim runs into multiple problems. The immigration judge in the 1998 proceedings never purported to declare Johnson a United States citizen. Immigration judges do not even have the authority to confer citizenship. See Barnes v. Holder, 625 F.3d 801, 805–06 (4th Cir.2010). Yet notwithstanding his criminal misconduct since the 1998 proceedings, he seeks to have DHS forever precluded from seeking his removal.
This too has problems. Johnson disregards the general rule that agencies are “free to fashion their own rules of procedure” without interference from courts. Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 544, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). He asks us to impose a sweeping rule of preclusion that would prospectively immunize criminal aliens from deportation, no matter what crimes they might at some future date commit. But that course would breach the established relationship between courts and agencies and contravene Congress's efforts to secure the orderly removal of criminal aliens. See 8 U.S.C. §§ 1228, 1252; Duvall v. Attorney General of the United States, 436 F.3d 382, 391 (3d Cir.2006). As a result we affirm the district court's dismissal of Johnson's petition for a writ of habeas corpus and deny his petition for review.
David Johnson, a native of Jamaica, entered the United States as a lawful permanent resident on October 1, 1972 at the age of seven. Johnson's father accompanied him. Although his father became a naturalized citizen a little over a year after their arrival, his father failed to use the procedure Congress created to apply for United States citizenship on his minor son's behalf. Johnson also never applied for United States citizenship on his own behalf prior to 1996.
Johnson committed a number of crimes during his time in this country. On January 27, 1989, he was convicted of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). And on May 1, 1989, he was convicted in state court of unlawful possession of a controlled substance and aggravated assault.
The Immigration and Naturalization Service (“INS”), whose powers in this area have since been transferred to DHS, sought to deport Johnson on the basis of these convictions. On August 21, 1992, INS issued Johnson an Order to Show Cause, claiming Johnson was deportable from the United States based on his criminal offenses. The immigration judge terminated the proceedings for reasons that were not discussed in the order.
On June 21, 1996, INS issued another Order to Show Cause, claiming Johnson was deportable on account of his drug and firearms convictions. The immigration judge terminated the proceedings on February 9, 1998, stating that Johnson “appears to be [a] U.S. citizen by [his] father's [naturalization].” J.A. 31. INS did not appeal.
On December 16, 1996, during the pendency of the removal proceedings, Johnson filed a Form N–600 Application for Certificate of Citizenship with INS, claiming that he derived United States citizenship from his father's naturalization. Johnson relied on 8 U.S.C. § 1432(a)(3), which has since been repealed. This subsection stated that “[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents” conferred citizenship on that child. 8 U.S.C. § 1432(a)(3). On April 5, 2000, INS denied the application because Johnson, whose parents had never married, could not show that his parents had legally separated. Johnson did not appeal INS's denial.
On January 28, 2002, Johnson was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 108 months imprisonment. Near the end of that term, on June 18, 2008, DHS initiated removal proceedings against Johnson and served him with a Notice to Appear, alleging that he was an alien removable by virtue of his 2002 and 1989 convictions. Johnson argued that preclusion principles barred DHS from relitigating the issue of his citizenship because the immigration judge in the 1998 proceedings had found him to be a United States citizen.
On May 21, 2009, the immigration judge denied Johnson's motion to terminate the proceedings and ordered him deported. The immigration judge concluded that DHS was not precluded from litigating the issue of Johnson's citizenship because the 1998 termination order did not make any citizenship finding. Even if this obstacle were absent, the immigration judge reasoned, under Duvall v. Attorney General of the United States, 436 F.3d 382 (3d Cir.2006), Johnson's commission of an additional crime since the 1998 proceedings lifted any preclusion bar that might otherwise have existed. Additionally, the immigration judge ruled that Johnson did not derive citizenship from his father's naturalization.
Johnson appealed this decision to the BIA. The BIA dismissed the appeal, relying principally on the Duvall argument and agreeing that Johnson did not obtain citizenship through his father's naturalization. Johnson filed a petition for review.
Johnson also petitioned for a writ of habeas corpus on July 18, 2008, raising the same citizenship issue he litigated in the removal proceedings. The district court dismissed the petition. Johnson appealed, but this court held the case in abeyance pending the BIA's decision in Johnson's removal proceedings. On May 12, 2010, upon Johnson's filing of a petition for review of the BIA's dismissal of his appeal, this court consolidated Johnson's habeas appeal with his petition for review.
We first consider Johnson's petition for a writ of habeas corpus. At oral argument Johnson conceded that his petition for review, not his habeas corpus petition, was the proper avenue of appeal. This is because the district court was without jurisdiction to consider the citizenship issues raised in the habeas petition.
Petitions for review are the appropriate vehicle for judicial review of legal and factual questions arising in removal proceedings. See 8 U.S.C. § 1252(a)(5) (); 8 U.S.C. § 1252(b)(9) ().
In fact, Congress has specifically prohibited the use of habeas corpus petitions as a way of obtaining review of questions arising in removal proceedings. 8 U.S.C. § 1252(b)(9) (). Therefore, because the issue of Johnson's citizenship arose in his removal proceedings, his petition for review, not his habeas corpus petition, is the proper means of seeking redress.
Johnson's habeas corpus petition is likewise barred because he failed to exhaust administrative remedies before filing his habeas action in the district court. See 8 U.S.C. § 1503(a) (). Indeed, Johnson failed to appeal the rejection of his Form N–600 Application for Certificate of Citizenship to the Administrative Appeals Unit of INS.
Because 8 U.S.C. §§ 1252(b)(9) and 1503(a) prohibit Johnson from obtaining review of his citizenship claims through a habeas corpus petition, we affirm the district court's jurisdictional dismissal of Johnson's petition for a writ of habeas corpus. As directed by statute, we review Johnson's claims only in the context of his petition for review.
Johnson argues in his petition for review that he is a United States citizen and that the BIA adopted an impermissible and unconstitutional interpretation of 8 U.S.C. § 1432 in ruling otherwise. This issue is of central...
To continue reading
Request your trial
-
Shepherd v. Holder
...and include collateral estoppel within its scope. See Ali v. Mukasey, 529 F.3d 478, 488–89 (2d Cir.2008); see also Johnson v. Whitehead, 647 F.3d 120, 129–31 (4th Cir.2011) (reviewing collateral estoppel ruling in criminal-alien-removal action subject to § 1252(a)(2)(C) bar, though not expl......
-
Chase v. Town of Ocean City
...place, and manner analysis.” Horina v. City of Granite City, 538 F.3d 624, 633 (7th Cir.2008) (citation omitted). Cf. Johnson v. Whitehead, 647 F.3d 120, 135 (4th Cir.2011) (stating, in challenge to naturalization statute under equal protection clause of Fifth Amendment, that “ ‘intermediat......
-
Ortega-Morales v. Lynch
...not cited by the government, the Fourth Circuit in Johnson v. Whitehead also stated that § 1503(a) requires exhaustion. 647 F.3d 120, 125 (4th Cir.2011). But that statement was dictum as well. The question before the court was whether a habeas petition could be used to obtain judicial revie......
-
Pierre v. Holder
...first clause of § 1432(a)(3) to apply. See, e.g., Morgan v. Att'y Gen. of the U.S., 432 F.3d 226, 234 (3d Cir.2005); Johnson v. Whitehead, 647 F.3d 120, 125 (4th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1005, 181 L.Ed.2d 734 (2012); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th C......