Dale v. Barr, Docket No. 18-1081

• Decision Date: 23 July 2020
• Docket Number: August Term, 2019,Docket No. 18-1081
• Citation: 967 F.3d 133
• Parties: Omar Everton DALE, aka Omar Dale, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

967 F.3d 133

Omar Everton DALE, aka Omar Dale, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 18-1081

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: November 4, 2019

Decided: July 23, 2020

Nicholas J. Phillips, Prisoners' Legal Services of New York, Buffalo, NY, for Petitioner.

Sarah A. Byrd (Joseph H. Hunt and Linda S. Wernery, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: Sack and Hall, Circuit Judges, and Rakoff, District Judge.¹

Judge Rakoff filed a concurring opinion.

Sack, Circuit Judge:

Petitioner Omar Everton Dale ("Dale") seeks review of two decisions by the United States Board of Immigration Appeals ("BIA"), the first of which affirmed a decision by an Immigration Judge ("IJ") ordering him removed from the country pursuant to the Immigration and Nationality Act² (the "INA"), 8 U.S.C. § 1227 ; and the second of which affirmed a decision by an IJ denying his motion to reopen his case. Dale raises two arguments in his petition for review: that a former provision of the INA that remains applicable to him violates his constitutional right to equal protection by not allowing him to derive citizenship through his father's naturalization when it would have allowed him to derive citizenship had his mother naturalized; and, in the alternative, that we should return the matter to the BIA to determine in the first instance whether a conviction for assault in the second degree under New York Penal Law § 120.05(2) qualifies as an aggravated felony crime of violence for purposes of the INA. Bound by precedent, we conclude that both arguments fail and therefore deny the petition.

BACKGROUND

A. Factual Background

In September 1979, Petitioner Dale was born to an unwed couple in Kingston, Jamaica. Dale's mother, Sandra Locke, and his father, Ludlow Dale, were both citizens of Jamaica. The two never legally married.

In May 1981, Dale and his mother were admitted to the United States as lawful permanent residents. Less than a month later, in June 1981, Dale's father came separately to the United States and was also admitted as a lawful permanent resident.

Dale spent his childhood living in the New York City home of his maternal grandmother. From time to time, his mother lived there too, but he was primarily raised by his grandmother. Dale never shared a home with his father.

In 1984, Dale's father enlisted in the United States Army. Then, in 1988, he became a naturalized United States citizen. In March 1989, less than a year later, he obtained an order of filiation from the New York State Family Court, Queens County, declaring him to be Dale's father.

In October 1997, after being convicted of a crime or crimes unspecified in the record, Dale's mother was deported from the United States without having become a United States citizen. After his mother's removal, Dale continued living with his maternal grandmother in New York.

Beginning in 2004, Dale was convicted of a string of criminal offenses including petit larceny, in violation of New York Penal Law ("NYPL") § 155.25, in 2004; possession of cocaine, in violation of NYPL § 220.03, in 2008; possession of 3, 4-Methylenedioxymethamphetamine (commonly known as "MDMA"), in violation of NYPL § 220.03, in 2011; assault in the third degree, in violation of NYPL § 120.00(1), in 2011; and assault in the second degree, in violation of NYPL § 120.05(2), in 2014. See In the Matter of Omar Everton Dale, Notice to Appear in Removal Proceedings under Section 240 of the INA, Jan. 13, 2017, at 3.

B. Procedural History

On January 13, 2017, the United States Department of Homeland Security ("DHS") initiated removal proceedings against Dale. Id. at 1. The DHS served Dale with a Notice to Appear ("NTA") ordering him to appear for a removal hearing before an IJ of the United States Department of Justice. Id. at 1-2.

The NTA alleged that Dale was not a citizen of the United States and that he was subject to removal from the country pursuant to three provisions of federal law. Id. at 3. First, the NTA asserted, Dale was removable pursuant to section 237(a)(2)(A)(ii) of the INA ( 8 U.S.C. § 1227 (a)(2)(A)(ii) ) for having been convicted of two crimes involving moral turpitude; second, Dale was removable pursuant to section 237(a)(2)(A)(iii) of the INA ( 8 U.S.C. § 1227(a)(2)(A)(iii) ) for having been convicted of an aggravated felony crime of violence as defined in 18 U.S.C. § 16 ; and third, Dale was removable pursuant to section 237(a)(2)(B)(i) of the INA ( 8 U.S.C. § 1227(a)(2)(B)(i) ) for having been convicted of an offense relating to a controlled substance. Id. at 3-4.

On April 21, 2017, Dale appeared by video at a hearing before an IJ. Through his attorney, Dale admitted that he had been convicted of the various offenses alleged in the NTA but argued that he was not removable from the country because he had "derived citizenship through his father's naturalization." Administrative Record ("AR") at 145. The IJ invited Dale's attorney to submit legal authority in support of that argument and scheduled a hearing for June 16, 2017.

On June 7, 2017, Dale's attorney filed a memorandum asserting that Dale had derived citizenship from his father's naturalization under a former section of the INA, previously codified at 8 U.S.C. § 1432(a). "In 2000, § 1432(a) was repealed and replaced by a different provision governing automatic derivative citizenship, the Children Citizenship Act (CCA) of 2000." Pierre v. Holder , 738 F.3d 39, 45 n.4 (2d Cir. 2013). Since then, questions of derivative citizenship have been controlled by a section of the CCA codified at 8 U.S.C. § 1431(a) ; the CCA, however, "does not confer citizenship retrospectively." Drakes v. Ashcroft , 323 F.3d 189, 191 (2d Cir. 2003). As a result, the former § 1432(a)(3), "the law in effect when [Dale]" contends that he "fulfilled the last requirement for derivative citizenship," Poole v. Mukasey , 522 F.3d 259, 264 (2d Cir. 2008) (internal quotation marks omitted), controls Dale's claim.

At the relevant time, section 1432(a) provided that:

A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, 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 has not been established by legitimation; and if

(4) Such naturalization takes place while such child is 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 last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

8 U.S.C. § 1432(a).

Dale's attorney focused her argument on subsection (3), which, to repeat, provided that a child, who (like Dale) was a lawful permanent resident, who was "born outside of the United States of alien parents ..., bec[ame] a citizen of the United States upon ... naturalization of [the] mother if the child was born out of wedlock and the paternity of the child ha[d] not been established by legitimation." 18 U.S.C. § 1432(a)(3). According to Dale's attorney, subsection (3) "suggest[ed] that if paternity of [Dale] ha[d] been established by legitimation, then [Dale] could have derived citizenship through his father's naturalization." AR at 296-97. Thus, counsel contended, because Dale's father had "legitimated" Dale by receiving an order of filiation with respect to Dale and had "naturalized before [Dale] turned 18," both of which occurred before 2000, Dale should be considered a U.S. citizen "through derivation."³ AR at 297.

DHS responded to Dale's argument by memorandum dated July 18, 2017. DHS contended that the issue of legitimation that Dale had attempted to raise was "entirely irrelevant" to the question of Dale's citizenship inasmuch as even if Dale had been "legitimated" by his father, the second sub-clause of section 1432(a)(3) required his mother to have naturalized, an event Dale conceded had never occurred. AR at 253-54.

On September 22, 2017, the IJ issued an oral decision concluding, among other things, that DHS had "established by clear and convincing evidence ... that [Dale] d[id] not derive citizenship under former Section 321 of the Immigration and Nationality Act." AR at 129. Dale was thus a citizen of Jamaica and not the United States. Id. The IJ addressed Dale's specific argument regarding citizenship under section 1432(a)(3), concluding that for Dale to have derived citizenship under that subsection, his mother would have had to have been naturalized. It was uncontested that she had not.

Having determined that Dale was not a citizen, the IJ turned to the question of removability. As described above, the DHS had initially alleged that Dale was removable under three provisions of the INA. The DHS had, however, withdrawn the third charge of removability during a hearing in July 2017. Addressing the remaining charges in the reverse order presented by the NTA, the IJ first concluded that Dale was removable under section 237(a)(2)(A)(iii) of the INA because his conviction for assault in the second degree under NYPL § 120.05(2) qualified as an aggravated felony crime of violence. Second, and in addition, the IJ concluded that Dale's convictions for petit larceny, assault in the third degree, and assault in the second degree each constituted a crime...