Drozd v. I.N.S.

Decision Date24 August 1998
Docket NumberDocket No. 97-4241
PartiesThadeus DROZD, a/k/a Adam Passoni, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Stephen Posner, Hempstead, NY (Posner & Gaier, Hempstead, NY, of counsel),for Petitioner.

Heidi A. Wendel, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Diogenes P. Kekatos, Steven M. Haber, Assistant United States Attorneys, Southern District of New York, New York City, of counsel), for Respondent.

Before: MESKILL and KEARSE, Circuit Judges, and TELESCA, * District Judge.

MESKILL, Circuit Judge:

Petitioner Thadeus Drozd (Drozd), a/k/a Adam Passoni seeks review of an order of the Board of Immigration Appeals (BIA) dated July 23, 1997, which dismissed Drozd's appeal and upheld the decision of an immigration judge to deny Drozd's application for termination of deportation proceedings based on United States citizenship and to order him deported based on repeated criminal conduct. On this petition for review, pursuant to section 106(a)(5) of the Immigration and Nationality Act of 1952, as amended (the "1952 Act"), 8 U.S.C. § 1105a(a)(5), Drozd contends principally that because he is a United States citizen, we should vacate the deportation order. 1 Alternatively, Drozd argues that genuine issues of material fact as to his nationality are presented which require us to transfer the proceedings to the United States District Court for a hearing on his nationality claim. For the reasons set forth below, the petition for review of the BIA's decision is denied.

BACKGROUND

Drozd was born in Poland on September 25, 1953 and entered the United States on June 17, 1959, as an immigrant pursuant to an immigrant visa. At no time after his arrival in the United States did Drozd seek to become a naturalized citizen.

Drozd has an extensive criminal record. It includes a conviction on September 26, 1975, in New York State Supreme Court, Kings County, of attempted robbery, for which he was sentenced to four to eight years imprisonment. In addition, he was convicted on May 19, 1989, in New York State Supreme Court, Westchester County, of burglary and conspiracy to commit murder, for which he was sentenced to three to six years imprisonment for burglary and fifty-four On June 10, 1994, the INS initiated deportation proceedings against Drozd with the issuance of an Order to Show Cause, which was partially superseded and amended on November 1, 1995. Drozd was charged with deportability pursuant to section 241(a)(2)(A)(ii) of the 1952 Act, 8 U.S.C. § 1251(a)(2)(A)(ii) (presently codified as amended at 8 U.S.C.A. § 1227), for commission of at least two crimes of moral turpitude not arising out of a single scheme of criminal conduct, that is, the 1975 attempted robbery conviction and 1989 conviction for burglary and conspiracy. Drozd was also charged with deportability pursuant to section 241(a)(2)(A)(iii) of the 1952 Act, 8 U.S.C. § 1251(a)(2)(A)(iii), as an aggravated felon.

months to nine years imprisonment for conspiracy to commit murder.

On December 6, 1994, Drozd's deportation hearing commenced and was adjourned numerous times at Drozd's request to allow him to obtain evidence. On July 15, 1996, at the reconvened hearing, Drozd admitted to the criminal convictions that were the basis of the INS's charge of deportability, but claimed that he was not deportable because he was a United States citizen, having acquired his citizenship from his United States citizen father, Edward Drozd, who allegedly served as a United States government employee in Eastern Europe. To support his claims, Drozd proffered the testimony of his brother Joseph Drozd, his cousin Edward Drozd, and his father's friend Bill Pisoney, as well as documentary evidence to reconstruct his father's activities prior to Drozd's birth. The evidence revealed the following.

Petitioner's father, Edward Drozd, was born in the United States on October 17, 1917. On May 28, 1920, Edward, at age two-and-one-half years, left the United States with his family and moved to Poland. By the late 1930s, Edward Drozd wanted to return to the United States but was unable to for financial reasons and the subsequent Nazi invasion of Poland. During World War II, Edward Drozd joined a Polish partisan unit that fought the Nazis. In 1940, Edward Drozd was arrested by the Nazis for being active in the resistance and was imprisoned in Poland. While the duration of his imprisonment is unclear, the record indicates Edward Drozd was in Poland until 1944.

In October 1944, Edward Drozd was arrested by the Soviets and imprisoned until after the war. Again, while the date of his release from prison is unclear, the evidence indicates that Edward Drozd was released as early as January 1945 and appeared at the American Consulate in Berlin, Germany to request a passport and other assistance to return to the United States as a citizen. The Consul instructed him to return to Poland to obtain supporting documentation. On March 29, 1946, Edward Drozd presented the documentation at the United States Embassy in Warsaw, Poland, submitted an application for a passport, and registered for the United States Selective Service. Although the United States Embassy approved Edward Drozd's application on July 3, 1946, he was unable to leave for the United States because he was arrested and imprisoned in Poland on charges of collaboration with the Nazis. He was released in 1949, attempted to leave the country, but was refused an exit permit by the Polish authorities, who considered him solely a Polish citizen.

Edward Drozd was married in 1951 and had children in Poland, including petitioner Thadeus Drozd. In 1958 Edward Drozd was issued a passport and an exit permit. He traveled back to the United States with his wife and children in 1959.

Petitioner alleges that during the period 1945 through 1958, his father may have worked as a United States government agent. Petitioner bases this belief on Bill Pisoney's testimony at the deportation hearing that Edward Drozd had told him that prior to coming to the United States in 1959, he had been "doing things for the United States" that "he couldn't discuss" with Pisoney, "but he was helping our country." In addition, Joseph Drozd testified that in the 1970s a cache of buried weapons had been found on the farm in Poland where Edward Drozd had lived two decades earlier, arms that had been "stashed there by the partisan unit that [Edward Drozd] was working with."

On August 19, 1996, the immigration judge issued his decision. Based on Drozd's admissions Drozd now seeks review of the BIA's decision.

and the conviction records in evidence, the immigration judge found Drozd deportable and rejected his application for a waiver of deportability under section 212(c) of the 1952 Act, 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996), because he had served more than five years in prison for an aggravated felony. In addition, the immigration judge found that Edward Drozd had not transmitted citizenship to Drozd and ordered him deported from the United States to Poland. Drozd filed a timely appeal to the BIA, which, in a decision dated July 23, 1997, affirmed the immigration judge's decision and dismissed the appeal.

DISCUSSION

In his petition for review, Drozd contends principally that his father satisfied the statutory requirements for transmission of citizenship. Alternatively, Drozd contends that the INS is estopped from denying him citizenship and that we should fashion an equitable remedy granting him citizenship because his father could have sought to have him naturalized by filing a petition prior to Drozd's eighteenth birthday, pursuant to section 322 of the 1952 Act, 8 U.S.C. § 1433, had his father known that Drozd was not a citizen.

Section 106(a)(5) of the 1952 Act, which governs our review of Drozd's petition, provides in pertinent part:

[W]henever any petitioner, who seeks review of an order under this section, claims to be a national of the United States and makes a showing that his claim is not frivolous, th[is] court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner's nationality is presented, transfer the proceedings to a United States district court for the district where the petitioner has his residence for hearing de novo of the nationality claim and determination as if such proceedings were originally initiated in the district court.

8 U.S.C. § 1105a(a)(5). The INS does not contest that Drozd presents a nonfrivolous claim of citizenship. Furthermore, the analysis of whether petitioner has raised a genuine issue of material fact under section 106(a)(5) is similar to that applied in the summary judgment context under Fed.R.Civ.P. 56. See Agosto v. INS, 436 U.S. 748, 754, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978). We consider each of Drozd's contentions in turn.

I. Statutory Requirements for Transmission of Citizenship

Drozd claims he is not deportable because he is a United States citizen, having derived citizenship from his father, Edward Drozd, who was a United States citizen by birth. Drozd's claim is based on section 301(a)(7) of the 1952 Act, 8 U.S.C. § 1401(a)(7) (presently codified as amended at 8 U.S.C. § 1401(g)), which provided that a person born abroad who had a citizen parent, would be deemed a United States citizen at birth if the parent had been physically present in the United States for ten years prior to the child's birth, at least five years of which were after the parent's fourteenth birthday. The statute also provided that any "periods of employment with the United States Government" by the citizen parent "may be included...

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