Ejelonu v. I.N.S., Dept. of Homeland Sec.

• Decision Date: 08 January 2004
• Docket Number: No. 01-3928.,01-3928.
• Citation: 355 F.3d 539
• Parties: Ijeoma EJELONU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.3d 539

Ijeoma EJELONU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF HOMELAND SECURITY, Respondent.

No. 01-3928.

United States Court of Appeals, Sixth Circuit.

Submitted January 31, 2003.

Decided and Filed January 8, 2004.

Clement O. Ohuegbe (briefed), Denning Law Firm PLCC, Dearborn, MI, for Petitioner.

Ernesto H. Molina, Jr., David V. Bernal (briefed), United States Department of Justice, Washington, DC, for Respondent.

Before BATCHELDER, MOORE, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 552-58), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Petitioner is a gainfully employed legal immigrant in her early twenties who currently studies psychology at Wayne State University in Detroit, Michigan. By all accounts, Petitioner should be a citizen; but for the Immigration and Naturalization Service's ("INS's") extended delay in processing Petitioner's citizenship application, the agency would have processed her application before Petitioner's eighteenth birthday and she would now in all likelihood be an American citizen. Petitioner was never convicted of any crime, her parents are citizens, her siblings are citizens, and her entire extended family resides in the United States. The Department of Homeland Security ("DHS") seeks to deport her to Nigeria.

For the reasons that follow, we GRANT the petition and REMAND for further proceedings consistent with this decision.

FACTS

Born on May 24, 1979, in Otukpo, Nigeria, Petitioner legally immigrated to the United States at age six as a dependent under her parents' student visa. Petitioner's parents, Chrissie and Nath Ejelonu, became naturalized American citizens on September 11, 1996. In October of 1996, Chrissie filed Applications for Certificates of Citizenship on behalf of Petitioner and her two younger sisters, Ogechi and Eze. Although DHS concedes Chrissie submitted complete applications, DHS (technically its predecessor, the INS), did not schedule an interview with Petitioner and her siblings until approximately ten months later, on August 18, 1997.

The INS subsequently made Ogechi and Eze citizens, but withheld citizenship from Petitioner because she turned eighteen after her mother filed her application but before the INS interview. At the time, the INS had the right under section 322(a) of the Immigration and Naturalization Act ("INA") to require that a child seeking citizenship "is under the age of 18 and in the legal custody of the citizen parent." See 8 U.S.C. § 1433(a) (2000) (emphasis added); see also 8 C.F.R. 322.2(a)(3) (2000) (reiterating the same rule). Since Petitioner was no longer under age eighteen when the INS decided her application (as opposed to when her mother filed it on her behalf), the INS refused Petitioner's request for citizenship and warned her that it would begin deportation proceedings.

Responding to this type of inequity, Congress enacted the Child Citizenship Act of 2000 ("CCA"), which automatically granted citizenship to most foreign-born children of American parents.¹ See Pub.L No. 106-395, 114 Stat. 1631, codified at 8 U.S.C. § 1431 (2001). Without the benefit of this legislation, Chrissie filed a Petition for Relative Alien and an Adjustment of Status petition to avoid Petitioner's deportation. Chrissie did not withdraw Petitioner's request for citizenship, which remains pending before DHS.

Meanwhile, Petitioner graduated with honors from Northern High School in Pontiac, Michigan. Afterward, she began college at Wayne State University. Petitioner was active in Central United Methodist Church in Waterford, Michigan. She also assumed a large role in helping her parents care for Ogechi and Eze.

While in school, Petitioner held jobs at Office Depot and Hudson's department store. Working at Hudson's in the summer of 1998, at age seventeen, she waited on a family that resided in her neighborhood. When it came time for the family to pay for its purchases, a family member asked Petitioner to accept a credit card number without the credit card. Although Petitioner knew this violated store policy, she acceded to the request. The family returned later in the week and Petitioner repeated the impropriety. Although Petitioner simply placed unwarranted trust in a neighborhood family, she never received any money or share of the stolen goods for permitting these transactions.

Hudson's captured the incidents on its security cameras. On December 3, 1998, police arrested Petitioner and charged her with two counts of Embezzlement by an Agent or Trustee of Over $100, in violation of M.C.L. § 750.174. Michigan has established a rehabilitation-oriented legal framework to handle precisely this type of juvenile misconduct. Known as the Holmes Youthful Trainee Act ("HYTA"), M.C.L. §§ 762.11-14, the HYTA provides that "[i]f an individual pleads guilty to a charge of a criminal offense ... committed on or after the individual's seventeenth birthday but before his twenty-first birthday," the court has the authority to "assign that individual to the status of youthful trainee," and to do so "without entering a judgment of conviction." M.C.L. § 762.11 (emphasis added); see also United States v. LeBlanc, 612 F.2d 1012, 1013 (6th Cir.1980) ("The appellant's assignment to `youthful trainee' status was made pursuant to the Holmes Youthful Trainee Act. Such an assignment does not constitute conviction of a crime within the meaning of Rule 609, Federal Rules of Evidence.") (citation omitted).

Youthful trainees generally receive probation, make restitution, perform community service, or commit to other measures designed to rehabilitate the Youthful Trainee. See M.C.L. § 762.13. As one court explained, "[t]he Holmes Youthful Trainee Act constitutes remedial legislation designed to alleviate problems with young offenders by permitting the use of rehabilitation procedures prior to conviction." People v. Perkins, 107 Mich.App. 440, 309 N.W.2d 634, 636 (1981) (emphasis added). "Once compliance is achieved, a youthful trainee will not be deemed convicted of a crime and proceedings regarding the disposition of the criminal charge will be closed to public inspection." People v. Bobek, 217 Mich.App. 524, 553 N.W.2d 18, 21 (1996) (emphasis added). Thus, the Michigan legislature intended the HYTA to allow youthful offenders a chance at rehabilitation without having to face the lifelong consequences of a criminal conviction.

Petitioner took advantage of this opportunity. On January 4, 1999, the court placed her on probation and required her to make restitution. Pursuant to M.C.L. § 726.13, the court sealed the record of all proceedings involving Petitioner. She immediately began searching for a new job, and found one at the Crittenton Hospital in Rochester, Michigan. She would never begin work.

Someone, perhaps in the local police department, turned over the judicially-sealed Youthful Trainee record to the INS. On January 16, 2003, INS agents raided Petitioner's home, seized her by force, and initiated deportation proceedings.

PROCEDURAL HISTORY

For weeks, the INS held Petitioner in custody. She had no opportunity to contact her family. On February 20, 2000, the INS formally commenced removal proceedings against Petitioner by filing a Notice to Appear with the Executive Office of Immigration Review. The Notice to Appear alleged that the INS could deport Petitioner for being convicted of two separate crimes involving moral turpitude, in violation of 8 U.S.C. § 1227(a)(2)(A)(ii). INA § 237(a)(2)(A)(ii) provides:

Any alien who at any time after admission is convicted of two or more crimes of moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

8 U.S.C. § 1227(a)(2)(A)(ii). The INA also defines conviction:

The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where —

(I) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). Since Petitioner admitted her mistake and received probation and restitution obligations (restraints on her liberty), an immigration judge found Petitioner deportable on August 15, 2000.

Petitioner filed a Notice of Appeal to the Board of Immigration Appeals ("BIA") on September 7, 2000. On August 3, 2001, the BIA dismissed her appeal. Petitioner implores us to review that decision.

DISCUSSION

Our review of the BIA is somewhat limited because we must defer to its reasonable interpretation of the immigration statutes it administers. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Petitioner's lackluster briefing also makes our review challenging. We recognize that Petitioner lacks the resources of the INS or, for that matter, the resources of an average American. As an immigrant, college student, and low-wage worker, Petitioner's financial and legal resources are probably quite limited.

Petitioner's counsel initially requests that we use our equitable authority to grant Petitioner's citizenship, although two Supreme Court decisions prohibit us from taking that step. See INS v. Pangilinan, 486 U.S. 875, 883-84, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988); Fedorenko v. United States, 449 U.S. 490, 517, 101 S.Ct. 737 (1981). Petitioner would also like us to review the BIA's decision de novo, but Chevron, USA v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), prevents this, as do subsequent decisions like Aguirre-Aguirre, 526 U.S. at...