Atem v. Ashcroft

• Decision Date: 19 March 2004
• Docket Number: No. CIV.A. 03-303-AM.,CIV.A. 03-303-AM.
• Citation: 312 F.Supp.2d 792
• Parties: John Bisong ATEM, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

312 F.Supp.2d 792

John Bisong ATEM, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. CIV.A. 03-303-AM.

United States District Court, E.D. Virginia, Alexandria Division.

March 19, 2004.

COPYRIGHT MATERIAL OMITTED

John Bisong Atem, Arlington, VA, Pro se.

S. Kathleen Pepper, Office of the U.S. Attorney, Alexandria, VA, for Respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

Petitioner John Bisong Atem (Atem), while a D.C. inmate,¹ filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 protesting the revocation of his United States passport and resulting detention pending deportation. Named as respondent is John Ashcroft, Attorney General.² Atem seeks (1) a writ of habeas corpus to obtain release from the custody of the Immigration and Naturalization Service;³ (2) reinstatement of his United States passport; and (3) a declaratory judgment that he is a United States citizen. Respondent timely filed an opposition on September 24, 2003, and Atem filed a reply on November 19, 2003.⁴ Supplemental briefs were filed by respondent on November 24, 2003. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted.

I.

Atem contends that he is a citizen of the United States, as evidenced by the United States passport issued to him in 1991. Born in Cameroon, Atem entered the United States on May 27, 1988, on a student "F-1" visa. On April 12, 1991, Atem applied for a United States passport with the Department of State Passport Office, claiming he derived United States citizenship from his United States citizen father. On this application, Atem claimed his father was Joseph Kennedy, a United States citizen born on May 5, 1920, in Lynchburg, South Carolina. In support of his derivative citizenship declaration, Atem submitted a copy of Joseph Kennedy's birth certificate, as well as his own Cameroon birth certificate. Atem's birth certificate reflected a birth date of April 1, 1967, and listed his father as Joseph Kennedy living in "Lynchburg, United States" and his mother as Dora Atem Ashu of Cameroon, who died on July 10, 1972. Atem stated on his passport application that he learned of his possible United States citizenship in November 1988, when he first spoke with his father. Atem also provided a certificate of legitimization of birth purportedly issued in Cameroon on February 28, 1991, and reflecting that his parents were those persons identified on his birth certificate. This certificate further indicated that Joseph Kennedy had provided support for him from May 2, 1967, through March 15, 1971. Based on this information, Atem was issued a United States passport on July 24, 1991, and replacement passports thereafter on May 21, 1999, and May 8, 2000.

Since the 1991 issuance of his United States passport, Atem has resided continuously in Maryland or Washington, D.C. During this time, Atem has operated a variety of businesses relating to aliens and international students. Many of these businesses, including the American Immigration Agency, target aliens seeking immigration assistance for themselves or their family members.⁵ As a result of Atem's fraudulent business operations and practices, an arrest warrant was issued for him on April 30, 2002, and a complaint filed with the United States District Court for the District of Columbia, with a superseding indictment filed on September 25, 2002. In that superseding indictment, Atem was charged with seven (7) counts of bank fraud and five (5) counts of immigration fraud. On June 18, 2003, Atem was convicted by a jury on all counts, and is scheduled to be sentenced on March 22, 2004.

During the pendency of this criminal prosecution, a long-term investigation, commenced by the INS in 1994, and continued in 2002 by the BICE, culminated on June 11, 2002, with a finding that Atem had presented false documents in order to obtain his United States passport.⁶ The INS reported the results of its investigation to the Department of State on June 11, 2002. On June 19, 2002, the Department of State informed Atem that it had revoked his passport based on its finding that Atem was not a United States citizen, and that the passport had been issued in error on the basis of fraudulent documents.

Thereafter, on February 24, 2003, BICE issued Atem a Notice to Appear before an Immigration Judge for removal proceedings. In support of its contention that Atem is not a United States citizen, BICE submitted to the Immigration Judge several documents establishing the following: (i) that Atem is a native and citizen of Cameroon (ii) that Atem's United States passport was revoked by the Department of State on June 19, 2002, as it was issued in error; (iii) that Atem had never attempted to become a naturalized United States citizen; and (iv) that Atem's certificate of legitimization of birth was fraudulent. BICE also submitted a copy of a Paternity Evaluation Report, dated April 23, 2003, reflecting that Joseph Kennedy was not the biological father of Atem.⁷ And finally, the Immigration Judge was provided with the records of an August 30, 1994, interview with Atem's purported father, Joseph Kennedy. In this interview, Kennedy stated that he first met Atem at the apartment building where Atem was working as a security guard. According to Kennedy, Atem informed Kennedy that Kennedy was his father and that Atem had to be a citizen of the United States or have someone adopt him in order to obtain a United States passport. Kennedy stated that he was stunned by Atem's claim that he was Atem's father.

Based on these documents, on May 21, 2003, the Immigration Judge ordered Atem removed from the United States. Implicit in this order is the Immigration Judge's finding that Atem is an alien and not a citizen of the United States. The Board of Immigration Appeals has no record showing that Atem ever appealed the decision of the Immigration Judge.

On March 13, 2003, Atem filed this petition for a writ of habeas corpus. Respondent filed a timely motion to dismiss the petition on September 24, 2003. Atem responded to the motion to dismiss on November 19, 2003. On November 24, 2003, respondent withdrew his argument that personal jurisdiction was lacking, and provided notice that Atem is no longer being held in immigration custody.

II.

As an initial matter, Atem's petition for a writ of habeas corpus seeking release from BICE custody is moot owing to the fact that he is no longer in BICE custody. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (case is moot if petitioner received what he pleaded such that "a favorable judicial decision" cannot redress any "actual injury"). Nevertheless, because Atem was in BICE custody at the time his petition was filed, his transfer to a D.C. correctional facility does not moot that portion of his petition pertaining to the non-custodial issues of his petition, namely his claim of United States citizenship and the alleged improper revocation of his United States passport. See Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir.2002) (concluding that transfer from immigration custody does not destroy habeas jurisdiction) (citations omitted). Accordingly, Atem's citizenship and closely related passport revocation claims must be addressed.

III.

Subject matter jurisdiction is the threshold inquiry. And, insofar as Atem claims that he is a United States citizen, the merits of that claim are not, in the first instance, reviewable in the district court.

It is important to note in this regard that the procedural posture of this case is somewhat unusual. Atem filed his habeas petition on March 13, 2003 — after BICE issued him a Notice to Appear before an immigration judge for removal proceedings, but before the immigration judge ordered that Atem be removed from the United States. Since his initial habeas filing, Atem has filed, on June 3, 2003, a Motion to Stay Removal Order, and to Grant Summary and Declaratory Judgments that, inter alia, he is a United States citizen. As a result, although Atem filed his habeas petition before any removal order had been entered, Atem's claim that he is a United States citizen now arises in the context of his removal proceeding. This is significant, as jurisdiction over citizenship claims arising in the context of removal proceedings is governed by § 242(b)(5) of the Immigration and Nationality Act. See 8 U.S.C. §§ 1252(b)(2) & (b)(5).⁸ This section provides that where, as here, a petitioner claims to be a citizen of the United States, the court of appeals for the judicial circuit in which the immigration judge completed the proceedings first determines whether there exists any genuine issue of material fact regarding the petitioner's nationality. Based on this initial determination, the court of appeals either decides the issue of petitioner's nationality on the pleadings, or alternatively, transfers the proceeding to the appropriate district court for a hearing on the nationality claim. 8 U.S.C. §§ 1252(b)(5)(A) & (b)(5)(B).

Given this statutory scheme, it is clear, as courts have consistently held, that Atem may not bring his claim of United States citizenship first in a district court through a habeas petition. Section 1252(b)(5) of Title 8 is the exclusive statutory method of determining Atem's claim of citizenship; and this claim must be brought as a petition for review of a final order of removal. The appropriate forum for a claim of United States citizenship in these circumstances is a federal circuit court of appeals.⁹ District courts, therefore, have no subject matter jurisdiction to determine claims of United States citizenship unless the matter has first been reviewed by a court of appeals and subsequently referred to the district court for a fact-finding hearing. There is thus no jurisdiction here to adjudicate the merits of Atem's citizenship claim on a habeas petition brought pursuant to 28...