Batista v. Ashcroft, 00-2525

• Decision Date: 02 August 2001
• Docket Number: No. 00-2525,00-2525
• Citation: 270 F.3d 8
• Parties: (1st Cir. 2001) CESAR BATISTA, Petitioner, v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

270 F.3d 8 (1st Cir. 2001)

CESAR BATISTA, Petitioner, v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 00-2525

United States Court of Appeals For the First Circuit

Heard Aug. 2, 2001

Decided October 29, 2001

PETITION FOR REVIEW OF A REMOVAL ORDER, PURSUANT TO AN ORDER OF TRANSFER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

John H. Ruginski, Jr. for petitioner.

Thankful Vanderstar, with whom Stuart E. Schiffer, Acting Assistant Attorney General, Terri J. Scadron, Senior Litigation Counsel, and Brenda M. O'Malley, Trial Attorney, United States Department of Justice, were on brief, for respondent.

Before Boudin, Chief Judge, and Selya and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Cesar Batista-Baez ("Batista" or "Cesar Batista") petitions for review of a reinstated final order of removal by the Immigration and Naturalization Service ("INS"). Although Batista concedes that he is removable based on a drug trafficking conviction, he contends that he is entitled to relief from removal because his father, a naturalized citizen, was his custodial parent, and hence he is a derived United States citizen. We find that there is a genuine issue of material fact regarding Cesar Batista's nationality and transfer this case to the district court for a new hearing on the matter.

I.

The following facts are not disputed. Cesar Batista was born in the Dominican Republic on September 14, 1977. On October 21, 1983, at the age of six, he was admitted as an immigrant to the United States, where his parents then lived. On May 5, 1997, Batista was convicted in Rhode Island for manufacturing and delivering heroin, an "aggravated felony" under current immigration law. See 8 U.S.C. § 1101(a)(43)(B). On July 14, 1997, the INS instituted removal proceedings against Batista based on this aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i).¹

On August 13, 1997, Batista admitted the charges and conceded that he was removable. In September 1997, Batista filed a motion to terminate removal proceedings, claiming that he was a United States citizen. Batista said that his father, Julio Batista, became a naturalized United States citizen on June 16, 1982, that he himself became a legal permanent United States resident in October 1983 at the age of six, and that his parents legally separated on January 12, 1982. In support of his motion to terminate, Batista submitted an opinion from a lawyer in the Dominican Republic on the obligations of parents under the country's divorce laws, a copy of his father's naturalization certificate, and a copy of his mother's application for naturalization. However, Julio Batista's naturalization certificate, dated June 16, 1982, indicates his marital status as "married", not separated, and similarly, Minerva Batista's naturalization application, dated February 25, 1997, also lists her marital status as "married."

Batista also submitted a copy and a translation of a Dominican marriage certificate stating that his parents were married on August 13, 1977, and a copy and a translation of a document captioned "Dominican Republic Certification." This document contains Minerva Batista's declaration that she is "separated from" her "legitimate husband," Julio Batista, and that "at the moment of separation," she "gave the custody of [her] son, CESAR ARMANDO BATISTA, to his legitimate father, JULIO CESAR BATISTA PATRICIO." The document states that "[t]he present declaration is made under oath . . . . In the City of San Domingo, National District, Capital of the Dominican Republic, at 12 days of the month of January, 1982." The certification itself is dated August 3, 1997, and the translation is dated August 29, 1997.

On November 12, 1997, an immigration judge denied Batista's motion to terminate removal, found him removable based on his drug trafficking conviction, and ordered that Batista be removed to the Dominican Republic. Batista did not appeal the immigration judge's decision to the Board of Immigration Appeals ("BIA"). On November 26, 1997, the INS deported Batista to the Dominican Republic.

Batista subsequently reentered the United States. The INS apprehended and detained him on October 15, 1998, in Philadelphia, Pennsylvania, and served him with a notice of intent to reinstate the 1997 removal order.² Batista declined to make a statement contesting the reinstatement. On October 16, 1998, the INS reinstated the 1997 removal order pursuant to 8 U.S.C. § 1231(a)(5).³

On April 8, 1999, Batista applied for citizenship to the INS District Director in Philadelphia, claiming that he had derived citizenship through his father under 8 U.S.C. § 1432(a). The statute provides, inter alia, that a child of alien parents born outside the United States may become a citizen of the United States if "the parent having legal custody of the child when there has been a legal separation of the parents" is naturalized; "[s]uch naturalization takes place while such child is under the age of eighteen years;" and "[s]uch child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years." 8 U.S.C. § 1432. In his citizenship application Batista did not supplement the evidence that he presented in support of his earlier motion to terminate removal.

On April 12, 1999, the INS Acting Director in Philadelphia denied Batista's application. The Director said that Batista presented no evidence in support of his claim that his parents "obtained a divorce or a legal separation" and noted (presumably to undermine such claim) that his father's 1982 naturalization certificate and his mother's 1997 naturalization application indicated that each was married, and that his mother's 1997 naturalization application additionally identified her husband as Julio C. Batista.

Although the Director considered the document containing a declaration by Batista's mother that his father secured legal custody of Batista upon their separation, he noted that the document was certified August 3, 1997, and further said that "[t]estimony presented to a notary public and certified in public record does not in itself constitute a legal determination on separation, divorce, and custody of minor children." The Director found that the available evidence did not show that Batista's parents obtained a legal separation, or that his father took legal custody of him before he reached the age of eighteen, as required by § 1432(a).

Batista did not appeal the denial of his citizenship claim to the Administrative Appeals Unit of the INS. On May 13, 1999, he was removed from the United States for the second time. Batista again reentered the United States, and on August 26, 2000, the Rhode Island state police arrested him for driving a car with a counterfeit inspection sticker. On August 30, 2000, the INS served Batista with a notice of intent to reinstate the 1997 removal order. Batista declined to make a statement contesting the reinstatement determination. The INS ordered Batista removed.

On September 25, 2000, Batista filed a habeas petition in the United States District Court for the District of Rhode Island challenging reinstatement of the 1997 removal order on the ground that he was a derived citizen under § 1432. Batista submitted no documents in support of his petition in addition to those already in the administrative record. On November 21, 2000, the district court transferred Batista's petition to this court pursuant to 28 U.S.C. § 1631.

Before us, Batista continues to argue that he is a derived United States citizen under § 1432 because his father became a naturalized citizen before Batista was eighteen and took sole legal custody of him after his parents' divorce. In support of his citizenship claim, Batista submitted to us two documents that were not part of the administrative record upon which the 1997 removal order is based: a Dominican "Divorce Sentence" document and an affidavit from his father. In resolving this appeal, we must decide whether we can consider these two documents.

II.

A. Jurisdiction

Although Congress recently restricted our authority to review removal orders based on an alien's aggravated felony conviction, see 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996), those restrictions do not apply when the alien makes a claim of citizenship. Fierro v. Reno, 217 F.3d 1, 3 (1st Cir. 2000). As the government concedes, when a citizenship claim has been made, we have jurisdiction, pursuant to 8 U.S.C. § 1252(b)(5)(A) and (B) (Supp. II 1996), to determine whether there is a "genuine issue of material fact" as to the citizenship claim requiring transfer to the district court for necessary fact finding.

The same statutory scheme provides that an alien seeking judicial review of a reinstated removal order must file a petition for review in this court within 30 days of the date of the reinstatement of the removal order. See 8 U.S.C. § 1252(b)(1). Rather than following this procedure, however, Batista filed a habeas petition with the district court within the permitted 30-day time period. The district court then transferred the petition to us pursuant to 28 U.S.C. § 1631, which provides that when a civil action is filed in a court "and that court finds that there is want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed." Because Batista filed his habeas petition with the district court within the time permitted for filing a petition for review of the removal order in this court, the district court's transfer of Batista's petition to us under § 1631 was proper.

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