Anderson v. Holder

Citation2012 Daily Journal D.A.R. 3230,673 F.3d 1089,12 Cal. Daily Op. Serv. 2891
Decision Date12 March 2012
Docket Number10–16491.,Nos. 07–74042,08–73946,s. 07–74042
CourtU.S. Court of Appeals — Ninth Circuit
PartiesGary ANDERSON, a.k.a. Gary Sinclair, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.Gary Anderson, Petitioner, v. Eric H. Holder Jr., Attorney General, Respondent.Gary Anderson, Petitioner–Appellant, v. Eric H. Holder Jr., Attorney General, Respondent–Appellee.


Cynthia J. Larsen, Stacy E. Don (argued), and Stephanie F. Zook, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, for the petitioner.

Tony West, Assistant Attorney General; J. Max Weintraub, Senior Litigation Counsel, Leslie McKay, Assistant Director, Kirsten L. Daeubler (argued), Trial Attorney, and Jane T. Scaffner, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

Appeal from the United States District Court for the Eastern District of California, (No. 10–16491) William B. Shubb, District Judge, Presiding. D.C. No. 2:09–cv–02519–WBS–JFM.On Petitions for Review of Orders of the Board of Immigration Appeals, (Nos. 07–74042, 08–73946). Agency No. A017–088–680.



REINHARDT, Circuit Judge:

This case requires us to apply a 1952 statute to circumstances far removed from those that the enacting Congress imagined. Gary Anderson, born in England to an American serviceman father and an English mother, is a citizen of the United States if and only if his “paternity ... [was] established while [he was] under the age of twenty-one years by legitimation.” 8 U.S.C. § 1409(a) (1952) (Former § 1409(a)). When Congress enacted this law, it believed that [a]s a general proposition, legitimation is accomplished by the marriage of the parents with acknowledgment of paternity by the putative father.” S.Rep. No. 81–1515, at 692–93 (1950). The law of Arizona—one of the states in which Anderson resided before the age of twenty-one—lacked any such requirement, however. Instead, it provided that [e]very child is ... the legitimate child of its natural parents.” 1975 Ariz. Sess. Laws ch. 117, § 2 (codified at Ariz.Rev.Stat. § 8–601). The question we face is how to reconcile the language of Former § 1409(a) with a state statutory scheme in which it makes little sense.

Although Anderson's biological father had no contact with him for more than four decades after his birth, there is no question that he is one of Anderson's “natural parents.” Because Anderson was a legitimate son of his natural parents under Arizona law, and because the identity of his natural father is and has always been undisputed, he appears to have met the requirements of Former § 1401(a)(7). We must, however, address two questions of law before arriving definitively at this conclusion: first, whether “legitimation” requires an affirmative act, as the district court held, rather than simply the status of being legitimate; and second, whether Anderson's paternity was “established” under Arizona law. Answering the first question in the negative and the second in the affirmative, we hold that Anderson is a citizen of the United States and remand to the agency to vacate the removal order.


On October 1, 1954, Gary Anderson was born in England to Mavis Sinclair, a citizen of that country, and Henry Gitelman, a U.S. citizen serving there as a member of the U.S. Air Force. Sinclair's parents refused to permit their daughter to marry Gitelman, and Gitelman's name did not appear on Anderson's birth certificate. Nor was Gitelman present for Anderson's birth, although he subsequently visited the mother and child in the hospital and paid for the birth expenses. Gitelman eventually returned to Massachusetts, where he lived at least until Anderson's twenty-first birthday. He had no subsequent contact with Anderson until 1999 or 2000, when he signed an affidavit stating that he was Anderson's father. He later testified to that effect in Immigration Court. At no time has Gitelman ever denied being Anderson's father.

In 1964, meanwhile, Sinclair married another U.S. citizen—Ted Anderson. Two years later, Sinclair's son, Gary, moved from England to the United States to live with his mother and her husband in Michigan. A year after that, Ted Anderson adopted Gary, who became a lawful permanent resident of the United States and took his stepfather's name. Gary Anderson resided in Michigan from 1966 until 1971 or 1972 and Minnesota from then until July 1975, three months before his twenty-first birthday, when he moved to Arizona. He remained in Arizona through his twenty-first birthday and beyond.

In 1996, Anderson was convicted by plea in the U.S. District Court for the District of Minnesota of conspiracy to distribute and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. In September 2000, the former Immigration and Naturalization Service (“INS”) served him with a Notice to Appear (“NTA”) on the basis of the conviction, charging him with removability under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance offense, and under 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony offense of drug trafficking. In removal proceedings, Anderson admitted the fact of his conviction. On January 11, 2001, however, an Immigration Judge (“IJ”) terminated the proceedings, finding that Anderson had acquired U.S. citizenship through his natural father, Gitelman. The IJ did not address whether Anderson would be removable if he were not a citizen.

The INS appealed, and on June 22, 2001, the Board of Immigration Appeals (“BIA”) reversed. Rather than remanding for the IJ to address whether Anderson was removable, the BIA simply found that he was and ordered that he be removed to England. Although Anderson asserts that he believed that his then-counsel had filed a petition for review, none was filed until October 16, 2007. This petition for review, No. 07–74042, is the first of those consolidated here.

In the meantime, on October 19, 2001, Anderson filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of California. On March 11, 2003, the district court dismissed the petition without prejudice, holding that it lacked jurisdiction because Anderson had failed to petition for review of the BIA's decision and that the petition could not be transferred to this court because it was not filed until after the deadline for a petition for review. Anderson did not appeal the district court's denial of his habeas petition.

On June 26, 2008, Anderson filed a motion to reopen with the BIA. On August 14, 2008, the BIA denied the motion to reopen and declined to exercise its power to reopen the proceedings sua sponte. Anderson's timely petition for review of this decision, No. 08–73946, is the second of those consolidated here.

After this court consolidated the two petitions, the government moved to transfer No. 08–73946 to the U.S. District Court for the Eastern District of California under 8 U.S.C. § 1252(b)(5)(B), for a determination of genuine issues of material fact regarding Anderson's citizenship claim. On August 17, 2009, a motions panel granted the motion—severing the petitions, holding both in abeyance, and transferring No. 08–73946 to the district court. On April 27, 2010, the district court held that Anderson had failed to meet his burden of showing that he was a U.S. citizen. Anderson v. Holder, No. CIV. 2:09–2519 WBS JFM, 2010 WL 1734979 (E.D.Cal. Apr. 27, 2010).

Anderson filed a timely appeal, docketed as No. 10–16491, and we consolidated it with the two petitions for review. The separate appeal was unnecessary, however, because we never relinquished jurisdiction over No. 08–73946 when we transferred it for a limited purpose to the district court. See Demirchyan v. Holder, 641 F.3d 1141, 1143 (9th Cir.2011) ([W]e see no meaningful distinction between transfer under 8 U.S.C. § 1252(b)(5)(B) and limited remand.”). In fact, it is doubtful that the district court's findings of fact and conclusions of law were separately appealable at all. Cf. Campbell v. Blodgett, 998 F.2d 763 (9th Cir.1993) (en banc) (holding that findings and conclusions on limited remand are not separately appealable). We therefore dismiss as moot the appeal in No. 10–16491, treating it as merged with the petition for review in No. 08–73946.1


We begin by determining whether we have jurisdiction to decide the petitions for review. Andersen v. United States, 298 F.3d 804, 807 n. 2 (9th Cir.2002).

First, we conclude that we lack jurisdiction over the petition in No. 07–74042, because Anderson filed it more than six years after the statutory deadline. The thirty-day time limit for filing a petition for review, under 8 U.S.C. § 1252(b)(1), “is mandatory and jurisdictional, and cannot be tolled.” Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003). We therefore dismiss that petition for lack of jurisdiction.

Second, we observe a potential jurisdictional problem with respect to the remaining petition for review: the BIA's original decision in this case was ultra vires. Because the IJ terminated proceedings after finding that Anderson had presented sufficient evidence of his citizenship to prevent the INS from establishing alienage, the IJ never actually found that Anderson was removable. On appeal to the BIA, the Board, after reversing the IJ's determination that Anderson was a citizen, failed to remand for the IJ to determine his removability; it simply entered a finding of removability on its own. Under the immigration statute, however, “only an IJ (or another administrative officer designated by the Attorney General, a provision not applicable here), may issue orders of deportation. The BIA ... is restricted to affirming such...

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