Charles v. Reno, No. Civ.A.00-1044 (JCL).

• Decision Date: 09 May 2000
• Docket Number: No. Civ.A.00-1044 (JCL).
• Parties: Marc Antoine CHARLES, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

Page 412

117 F.Supp.2d 412

Marc Antoine CHARLES, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.

No. Civ.A.00-1044 (JCL).

United States District Court, D. New Jersey.

May 9, 2000.

Edward Shulman, Shulman & Weiss, L.L.P., Paterson, NJ, for plaintiff.

Colette R. Buchanan, Assistant United States Attorney, District of New Jersey, Newark, NJ, for defendant.

MEMORANDUM AND ORDER

LIFLAND, District Judge.

This matter was opened to the Court by Petitioner's application for a writ of habeas corpus and complaint for declaratory and injunctive relief. Petitioner is in custody pending deportation and claims that he is a United States citizen. For the following reasons, Petitioner's application will be denied.

BACKGROUND

Petitioner was born in Haiti on August 7, 1976, to Evelyne Petit and Nicholas Charles. Evelyne Petit and Nicholas Charles never married, nor has Evelyne Petit ever been to the United States. Nicholas Charles appears on Petitioner's birth certificate as his natural father. (Ex. C to Pet.) On March 13, 1989, Petitioner lawfully entered the United States, where his father Nicholas was already residing, in Irvington, New Jersey. Nicholas Charles attested that he would provide financial support to is son, and Evelyne Petit signed an affidavit entrusting the care of Petitioner to his father. On November 3, 1993, Petitioner's father became a naturalized United States citizen. At that time, Petitioner was 17 years old.

On September 6, 1996, Petitioner was convicted in New Jersey of Conspiracy and Aggravated Assault. On September 9, 1996, Petitioner was convicted in New Jersey of Aggravated Assault and Unlawful Possession of a Weapon. The Immigration and Naturalization Service ("INS") issued an Order to Show Cause why Petitioner should not be deported pursuant to § 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") on January 17, 1997. (Ex. A to Pet.) An immigration judge denied Petitioner's application for the relief of voluntary departure. At a hearing at which Petitioner was represented by counsel, Petitioner conceded or admitted deportation, and a Final Order of Deportation to Haiti was issued on December 4, 1997. (Ex. 2 to Gov't Answer.) The Board of Immigration Appeals ("BIA") denied Petitioner's Appeal on September 1, 1998.

On November 1, 1999, Petitioner was paroled from the custody of the New Jersey Commissioner of Corrections and taken into custody by the INS. On November 8, 1999, Petitioner moved to reopen his case before the BIA. This was the first occasion on which Petitioner asserted his claim of derivative United States citizenship under § 321 of the INA. 8 U.S.C. § 1432. On January 5, 2000, the BIA denied Petitioner's motion to reopen the case as untimely. In a footnote, the BIA noted that Petitioner claimed derivative United States citizenship under § 321(a)(3) of the INA and commented that "[w]e see no reason to invoke our own authority to reopen these proceedings to address that claim. It is not apparent that the `legal separation' and `legal custody' requirements of section 321(a)(3) of the Act have been satisfied here." (Ex. 2 to Gov't Answer.)

On March 6, 2000, Petitioner filed an emergent petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief in this Court. Petitioner alleges that INA Section 321 violates the Equal Protection Clause of the Fifth Amendment by irrationally denying eligibility for relief to illegitimate children of naturalized fathers with sole custody while granting relief to children of naturalized fathers who are legally separated and have legal custody (Count One); and that INA Section 321(a)(3) violates the Equal Protection Clause of the Fifth Amendment because it irrationally denies eligibility for relief to illegitimate children of naturalized fathers while granting eligibility for relief to illegitimate children of naturalized mothers (Count Two).

The Government's Answer admits that this Court has habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241 but states that Petitioner failed to exhaust his administrative remedies because he failed to timely move for reconsideration or seek judicial review of the September 1, 1998 decision of the BIA. The Government also contends that § 321 does not violate Equal Protection and that because Petitioner is not an "illegitimate child" under the laws of Haiti or New Jersey (his natural father having declared him), he has no standing to bring an Equal Protection claim.

By Order filed March 7, 2000, this Court stayed Petitioner's deportation pending the outcome of its decision on his citizenship status. The Court conducted a hearing on March 23, 2000, at which it concluded that fact issues existed as to whether Petitioner was in the "legal custody" of his father at the time the father became a naturalized United States citizen as required by § 321(a)(3). (Ex. B to Pet.) The Court also expressed doubt as to whether Petitioner could demonstrate his parents' "legal separation" in light of the fact that his parents were never married. The parties have submitted supplemental briefing on § 321(a)(3)'s requirements of "legal custody" and "legal separation."

STANDARD OF REVIEW

There is only a limited scope of judicial inquiry into immigration legislation. Although not specifically delegated to the federal government by the Constitution, "the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government's political departments and is largely immune from judicial control." Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (citations omitted) (interpreting a previous version of § 321 and concluding that it was not for the Court to probe and test the justifications for a legislative decision on immigration matters so long as the justifications appeared to be rationally based); Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quotation omitted) ("over no conceivable subject is the Legislative power of Congress more complete than it is over the admission of aliens").

DISCUSSION

I. Jurisdiction

The Government's Answer stated that Petitioner failed to exhaust his administrative remedies because "he failed to timely move for reconsideration or seek judicial review of the September 1, 1998 decision of the BIA." (Ans. ¶ 21.) At oral argument, the Government agreed that Charles could not have appealed the BIA decision to the Court of Appeals because he is a criminal alien. See Liang v. INS, 206 F.3d 308, 323 (3d Cir.2000) (holding that under permanent rules of HRIRA, the Court of Appeals lacks jurisdiction over claims of aliens ordered deported for crimes listed in INA and holding that district courts retain habeas jurisdiction over deportation orders of criminal aliens). Further, this Court believes that a motion to reopen or for reconsideration does not fall within the statutory exhaustion requirement because a motion to reopen or for reconsideration of a final order is a discretionary remedy, and the statutory exhaustion requirement provides only that an alien must exhaust administrative remedies which are available "as of right." § 8 U.S.C. 1252(d). Accord Zhang v. Reno, 27 F.Supp.2d 476, 477 (S.D.N.Y. 1998).

If Petitioner is a United States citizen, the INS had no jurisdiction to bring deportation proceedings against him. See Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922) ("[J]urisdiction in the executive and legislative to order deportation only exists if the person is an alien.") It is undisputed that Petitioner's claim of citizenship was not presented to the immigration judge who ordered Petitioner deported, nor to the BIA on direct appeal. It is also undisputed that Petitioner failed to timely move to reopen the deportation proceedings before the BIA. However, in his untimely motion to reopen, Petitioner did assert his claim of derivative citizenship, a claim not resolved by the BIA. In its Answer and at oral argument, the Government stated that it does not challenge this Court's habeas corpus jurisdiction. This Court concludes that habeas jurisdiction is appropriate notwithstanding Petitioner's failure to timely present his claim of United States citizenship to the INS or the BIA.

The Court will first assess whether Petitioner has demonstrated that he is a United States citizen pursuant to the INA. Then, if the Court concludes Petitioner does not qualify for derivative citizenship, the Court will evaluate Petitioner's Equal Protection arguments concerning the constitutionality of the INA provisions.

II. Derivative Citizenship

There are only two ways to acquire United States citizenship, birth or naturalization. See Miller v. Albright, 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (1898)). Petitioner claims that he derived citizenship through his father's naturalization in 1989 pursuant to section 321 of INA. A child's acquisition of citizenship on a derivative basis occurs by operation of law. See In re Julio Augusto Fuentes-Martinez, 1997 WL 219496, Interim Decision 3316 (BIA 1997) ("[t]he actual determination of derivative citizenship under section 321(a) of the Act may occur long after the fact, in the context of a passport application or a claim to citizenship made in deportation proceedings").

Section 321 of the INA provides as follows:

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

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child...