Dent v. Sessions, 17-15662

• Decision Date: 17 August 2018
• Docket Number: No. 17-15662,17-15662
• Citation: 900 F.3d 1075
• Parties: Sazar DENT, aka Cesar Augusto Jimenez-Mendez, Petitioner-Appellant, v. Jefferson B. SESSIONS III, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

900 F.3d 1075

Sazar DENT, aka Cesar Augusto Jimenez-Mendez, Petitioner-Appellant,

v.Jefferson B. SESSIONS III, Attorney General, Respondent-Appellee.

No. 17-15662

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2018—San Francisco, California

Filed August 17, 2018

Anne R. Traum (argued), Supervising Attorney; Andrew Clark, Scott Cardenas, Beatriz Aguirre, and Sabrina Clymer, Student Attorneys; Thomas & Mack Legal Clinic, William S. Boyd School of Law, University of Nevada, Las Vegas, Nevada; for Petitioner-Appellant.

Katherine E. Clark (argued) and Russell J.E. Verby, Senior Litigation Counsel; Papa Sandhu, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellee.

Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Ivan L.R. Lemelle,^* District Judge.

GRABER, Circuit Judge

Petitioner Sazar Dent, a native and citizen of Honduras, appeals the summary judgment entered in favor of Respondent Attorney General Sessions on the question of Petitioner's citizenship. He also challenges the Board of Immigration Appeals' ("BIA") conclusion that Arizona third-degree escape is an aggravated felony. We deny the petition insofar as it raises due process and equal protection claims related to the citizenship determination; but we grant and remand insofar as the BIA ruled that the escape conviction is an aggravated felony.

FACTUAL AND PROCEDURAL BACKGROUND¹

Petitioner was born in Honduras in 1967. He was admitted to the United States in early 1981, when he was 13 years old, on the basis of his then-pending adoption by Roma Dent, a United States citizen. The adoption was finalized later in 1981.

In January of 1982, the former Immigration and Naturalization Service ("INS") received an application filed by Petitioner's adoptive mother seeking to naturalize Petitioner (who was then 14 years old) as a United States citizen. Petitioner and his mother lived in Arkansas. The INS transferred the application to its New Orleans office because there was no office in Arkansas and because the Memphis office was overworked. More than 200,000 naturalization petitions were filed with the INS in 1982. At that time, it typically took about a year and a half, after the filing of an application for a child's naturalization petition, to schedule an interview.²

The INS scheduled an interview on Roma Dent's application for August 4, 1983, less than 17 months after it was filed. The INS arranged for the interview to be held in Arkansas, near the Dents' home. But neither Petitioner nor his mother appeared at the appointed time and place.

Petitioner's mother then asked for a new interview date, explaining that Petitioner would be in Honduras "for 6 months probably." The INS obliged the request, setting a second interview date of March 13, 1984. There is no evidence that the INS knew that Petitioner would still be abroad at that time. Again, neither he nor his mother appeared.

In August of 1984, Petitioner's mother contacted the INS about the status of the naturalization application. The INS responded:

So good to hear from you. Am unable to locate Sazar['s] records in our office as I do not have his Alien card number. Also include Sazar['s] complete name and date of birth.

We will do all we can to get him his citizenship.

Petitioner's mother wrote the requested information on the form, adding: "Is 16 will be 17 Nov 15." That note was postmarked August 27, 1984.

On June 10, 1985, the INS placed the following note in Petitioner's file:

Joan of U.S. Court Clerk's Office of Fort Smith, AR called this date to inquire about Sazar Dent's status. She advised he had been in a lot of trouble, had run away from several boy's homes, etc. They (the authorities) were hoping they could "deport" him. Advised her that he was a legal permanent resident; having been adopted by a U.S. citizen.

The INS did not schedule any additional interviews on the application of Petitioner's mother. When Petitioner turned 18, he aged out of his mother's application, but he became eligible to naturalize on his own, as an adult. 8 U.S.C. §§ 1433(a), 1445(b) (1980).

The INS scheduled an interview for Petitioner on February 25, 1986. He missed that appointment, but the INS "squeezed" him in the next day. At that interview, the INS deemed Roma Dent's application "nonfiled," thereby terminating that application. Also on February 26, 1986, Petitioner filed his own naturalization application and petition. The INS immediately recommended approval of the petition. In 1986, when the INS determined that an applicant was eligible to naturalize, the applicant would file a petition with the local federal district court and the INS would recommend its approval. Here, Petitioner filed a petition in the District Court for the Western District of Arkansas on the day it was approved by the INS. All that remained for him to do was to (1) submit to a preliminary examination by the INS, (2) appear in a district court for a final determination on naturalization, and (3) take the oath of naturalization. 8 U.S.C. §§ 1445 – 48 (1986).³

Thereafter, the INS scheduled Petitioner for the preliminary examination on at least two different dates between 1986 and 1987. He did not show up for any of the appointments. Although at least one notice was returned to sender, Petitioner admitted that he received at least one of the notices, and the INS sent all the notices to addresses that Petitioner had provided.

Because Petitioner had failed to appear for at least two scheduled interviews on his own petition, the INS scheduled a final hearing for March 23, 1989, at which it would recommend denial of the application for failure to prosecute. The INS sent notice of that hearing to the address at which Petitioner had received one of the 1986 notices, which also was Petitioner's address of record, but the notice was returned to sender. Petitioner admitted that he had failed to notify the INS of his changes of address and that he had failed to appear for the final hearing. The district court denied his naturalization petition on March 23, 1989, for failure to prosecute.

In 2003, Petitioner was convicted of two Arizona crimes: possession or use of narcotics ( Ariz. Rev. Stat. §§ 13-3401, 3408), and third-degree escape ( Ariz. Rev. Stat. § 13-2502 ). Several months later, the Department of Homeland Security ("DHS") initiated removal proceedings. DHS charged that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii), on the ground that the escape conviction is a crime of violence and, therefore, an aggravated felony. Later, DHS added a charge that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(B)(i), on the ground that possession of narcotics is a controlled substance offense.

After the immigration judge and the BIA concluded that Petitioner was removable, he petitioned for review with this court, bringing a citizenship claim, among others. We transferred the case to the District of Arizona "for a new hearing on [his] nationality claim." Dent v. Holder , 627 F.3d 365, 376 (9th Cir. 2010) (alteration in original). The district court determined that Petitioner was not a citizen, Dent v. Holder , No. 2:10-CV-02673-TMB, 2013 WL 11311230, at *6 (D. Ariz. Sept. 30, 2013), and he appealed to this court. We vacated the district court's determination and remanded the case so that the district court could consider his due process claim in light of intervening authority. Dent v. Lynch , 606 F. App'x 405 (9th Cir. 2015) (unpublished). The district court rejected Petitioner's due process claim and granted Respondent's motion for summary judgment, while denying Petitioner's motion for summary judgment. Dent v. Sessions , 243 F.Supp.3d 1062, 1074 (D. Ariz. 2017). Petitioner timely appeals.

DISCUSSION⁴

A. Standing

Petitioner has standing to assert due process and equal protection claims on his mother's behalf. An individual has third-party standing when "[ (1) ] the party asserting the right has a close relationship with the person who possesses the right [and (2) ] there is a hindrance to the possessor's ability to protect his own interests." Sessions v. Morales-Santana , ––– U.S. ––––, 137 S.Ct. 1678, 1689, 198 L.Ed.2d 150 (2017) (internal quotation marks omitted). In Morales-Santana , the Supreme Court held that the petitioner—a non-citizen asserting the equal protection rights of his late, United States citizen father—had standing to vindicate his father's rights. Id. The Court reasoned that he "easily satisfie[d] the ‘close relationship’ requirement." Id. And, because the petitioner's father had died years before the petitioner brought the case, he also satisfied the "hindrance" requirement. Id.

In this case, Petitioner—as his mother's adopted child—satisfies the close relationship requirement. And, like the petitioner in Morales-Santana , Petitioner's mother died years ago, so he also satisfies the hindrance requirement.

B. Equal Protection

Petitioner brings a facial challenge to 8 U.S.C. § 1433 (1982), a citizenship statute that was in effect when he began the naturalization process. He contends that § 1433 violated his mother's rights under the Fifth Amendment's Equal Protection Clause. That statute required citizen-parents of foreign-born, adopted children to petition for their naturalization. Id. § 1433(c). Because biological parents, as well as naturalizing parents of adopted children, could confer citizenship on their children automatically, without petitioning, Petitioner contends that § 1433 violated his mother's equal protection rights.⁵

1. Level of Scrutiny

Morales-Santana dictates that Petitioner's equal protection claims do not necessarily receive rational basis review simply because they are in the immigration context. 137 S.Ct. at 1689, 1693–94. Before the Supreme Court decided Morales-Santana , we would have followed Fiallo v. Bell , 430 U.S. 787, 97...