Belleri v. United States

• Decision Date: 14 March 2013
• Docket Number: No. 12–11564.,12–11564.
• Citation: 712 F.3d 543
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Mr. Julien Michel BELLERI, Individually, Plaintiff–Appellant, v. UNITED STATES of America, Annette Rivera, Supervisory Detention & Deportation Officer, Immigration and Customs Enforcement, Defendants–Appellees.

712 F.3d 543

Mr. Julien Michel BELLERI, Individually, Plaintiff–Appellant,

v.UNITED STATES of America, Annette Rivera, Supervisory Detention & Deportation Officer, Immigration and Customs Enforcement, Defendants–Appellees.

No. 12–11564.

United States Court of Appeals, Eleventh Circuit.

March 14, 2013.

David Alberto Rondon, Law Offices of David Rondon, PLLC, Boynton Beach, FL, Matthew B. Weber, Matthew Weber, Miami, FL, Edward Francis O'Hara, Deratany, Skorupa & O'Hara, PA, North Palm Beach, FL, for Plaintiff–Appellant.

Neelam Ihsanullah, U.S. Dept. of Justice, Civ. Div.–OIL, Washington, DC, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and PRYOR, Circuit Judges, and ROTHSTEIN,^* District Judge.

PRYOR, Circuit Judge:

This appeal requires us to consider whether the district court has jurisdiction over a complaint for money damages filed by Julien Belleri against a federal official and the United States arising out of Belleri's detention for eight months by immigration officials. A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 strips federal courts of jurisdiction over claims “by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g). The parties initially agreed that Belleri is a citizen of the United States, and the district court determined that it had jurisdiction over Belleri's complaint because section 1252(g) bars complaints only by aliens. The district court later dismissed Belleri's complaint for failure to state a claim and for lack of subject matter jurisdiction under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). While Belleri's appeal of that decision was pending, the United States issued an official notice of cancellation of Belleri's citizenship “on the grounds that it was obtained by fraud and illegally,” and the parties now disagree about whether Belleri is a citizen. In the light of this new dispute of a jurisdictional fact, we vacate the order that dismissed Belleri's complaint, and we remand for the district court to determine whether Belleri is a citizen of the United States and, if not, whether the district court has subject matter jurisdiction over his complaint.

I. BACKGROUND

Belleri was born in France in February 1983. In July of that year, Belleri's parents brought him to the United States as a lawful permanent resident. Until 1994, he resided with both of his parents in the United States and Colombia.

In February 1994, Belleri's parents signed a “Conciliation Agreement” in Colombia that provided for the custody, child support, visitation rights, and education of their children. The Conciliation Agreement stated that Belleri's parents would share custody of him, but that he would live with his father. The Conciliation Agreement did not state that Belleri's parents were divorced or legally separated, and it did not provide for a division of marital assets. The Conciliation Agreement refers on two occasions to Belleri's parents as “spouses.”

On March 23, 1999, Belleri's mother became a naturalized citizen of the United States. Belleri was then 16 years old and living with her in the United States. Belleri claimed that he then obtained “derivativecitizenship” under a provision of the Immigration and Nationality Act that provides as follows that a minor attains derivative citizenship when his parents have obtained a legal separation and the minor lives in the custody of the naturalized parent:

A child born outside of the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions:

...

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents ... if

(4) Such naturalization takes place while such child is unmarried and under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent....

8 U.S.C. § 1432(a) (repealed 2000).

A child acquires derivative citizenship by operation of law, not by adjudication. “No application is filed, no hearing is conducted, and no certificate is issued when such citizenship is acquired.” Matter of Fuentes–Martinez, 21 I. & N. Dec. 893, 896 (BIA 1997). If Belleri obtained derivative citizenship in 1999, he did not have to take any further action to secure his citizenship.

In 2000, Belleri filed an application for a certificate of citizenship, but the government denied his application after he failed to appear for an interview. Belleri alleges that he did not receive notice of the interview date until after it had passed. Belleri's parents eventually obtained a judicial decree of divorce on August 25, 2005.

In 2007, police officers in Palm Beach County, Florida, arrested Belleri on several misdemeanor and felony charges. Belleri pleaded guilty to charges of battery and aggravated battery and served a sentence of imprisonment for 137 days. While Belleri was in prison, the Immigration and Customs Enforcement of the Department of Homeland Security issued a warrant for his arrest on the ground that he was an alien unlawfully in the United States.

When Belleri completed his prison term, the Department took custody of him and served him a notice to appear in removal proceedings. At his removal hearing, Belleri argued that he had obtained derivative citizenship in 1999, and he presented evidence of his alleged citizenship to an immigration judge. The Department continued to detain Belleri because it contended that he was an alien unlawfully in the United States, and an immigration judge denied Belleri's several requests for bond. After Belleri had been detained for eight months, the Department released Belleri on bond.

The Department later issued Belleri a certificate of citizenship retroactive to March 23, 1999. The Department determined that Belleri had obtained derivative citizenship when his mother became a naturalized citizen and after his parents had obtained a “legal separation” within the meaning of section 1432(a)(3). In 2010, the Department filed a motion to reopen and terminate the removal proceedings against Belleri.

On September 18, 2011, Belleri filed a second amended complaint in the district court against the United States, Annette Rivera, who was an officer with the Department, and Stuart Whiddon, who was the sheriff who administered the facility where the Department detained Belleri. Belleri sued Rivera for damages, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violationsof his right under the Fourth Amendment to be free from unreasonable seizures and his right under the Fifth Amendment to due process of law. Belleri sued Rivera and the United States, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., for false imprisonment, malicious prosecution, abuse of process, and negligence. Belleri sued Whiddon for the violation of his right to due process under the Fourteenth Amendment, 42 U.S.C. § 1983, but Belleri later voluntarily dismissed that claim.

Rivera and the United States filed a motion to dismiss the complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and alternatively for failure to state a claim upon which relief can be granted, id. 12(b)(6). The defendants argued that the following provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped the district court of jurisdiction over Belleri's complaint because it arose from a removal proceeding:

(g) Exclusive Jurisdiction.

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), ... no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). The Act defines an “alien” as “any person not a citizen or national of the United States.” Id. § 1101(a)(3). In its motion to dismiss, the United States did not dispute that Belleri is a citizen of the United States, but argued that section 1252(g) still barred his complaint.

The district court concluded that it had jurisdiction over Belleri's complaint because he is a citizen and section 1252(g) bars only complaints “by or on behalf of any alien.” The district court then dismissed Belleri's claims under Bivens and his claims under the Federal Tort Claims Act for false imprisonment, malicious prosecution, and abuse of process on the ground that he had failed to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). The district court dismissed Belleri's claim under the Federal Tort Claims Act for negligence on the ground that the discretionary function exception to the Act barred his claim, id. 12(b)(1). In his appeal to this Court, Belleri has contested the dismissal of only his Bivens claim against Rivera for unreasonable seizure under the Fourth Amendment and the dismissal of his claim against the United States under the Federal Tort Claims Act for false imprisonment.

On April 20, 2012, the Department mailed to Belleri a notice of intent to cancel his certificate of citizenship on the ground that he had obtained his certificate illegally or through fraud. The notice stated that Belleri's claim to derivative citizenship under section 1432(a) depended on proof that his parents obtained a “legal separation” before his mother became a naturalized citizen. The notice stated that the Department had concluded that the Conciliation Agreement between Belleri's parents was not a “legal...