Fernandez v. Keisler

• Decision Date: 26 September 2007
• Docket Number: No. 06-2209.,06-2209.
• Citation: 502 F.3d 337
• Parties: Luis Puentes FERNANDEZ, Petitioner, v. Peter D. KEISLER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

502 F.3d 337

Luis Puentes FERNANDEZ, Petitioner, v. Peter D. KEISLER, Acting Attorney General, Respondent.

No. 06-2209.

United States Court of Appeals, Fourth Circuit.

Argued: May 21, 2007.

Decided: September 26, 2007.

ARGUED:

Marc Seguinot, Seguinot & Associates, P.C., McLean, Virginia, for Petitioner. Kristin Kay Edison, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

ON BRIEF:

Peter D. Keisler, Assistant Attorney General, Civil Division, James A. Hunolt, Senior Litigation, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

Before WILLIAMS, Chief Judge, and MOTZ and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge SHEDD concurred. Judge MOTZ wrote a dissenting opinion.

OPINION

WILLIAMS, Chief Judge:

Luis Puentes Fernandez, a native and citizen of Chile, petitions for review of an order of the Board of Immigration Appeals (BIA) ordering his removal from the United States. The BIA ordered Fernandez's removal based on his conviction in Virginia state court for distribution of oxycodone and Percocet. Fernandez seeks to avoid removal by arguing that under our decision in United States v. Morin, 80 F.3d 124 (4th Cir.1996), he has demonstrated that he owes "permanent allegiance" to the United States and thus qualifies as a U.S. national under § 101(a)(22)(B) of the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1101(a)(22)(B) (West 2005). That provision defines "national of the United States" as "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." Id. The BIA rejected Fernandez's argument, concluding that § 1101(a)(22)(B) itself does not provide a means for acquiring U.S. national status.

Although we agree with Fernandez that he would qualify as a U.S. national under Morin, our decision in Morin did not purport to set forth the only possible interpretation of the definition of "national of the United States." Under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must afford deference to the BIA's contrary, post-Morin interpretation of the INA if it is a "permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. We hold that it is. Accordingly, because Fernandez does not qualify as a "national of the United States" under the BIA's interpretation of the INA, and because we conclude that the BIA's interpretation is not "arbitrary, capricious, or manifestly contrary to the statute," id. at 844, 104 S.Ct. 2778, we deny Fernandez's petition for review.

I.

Fernandez was born in Chile and was admitted to the United States as a lawful permanent resident on August 22, 1965, at the age of one. He has been in the United States continuously since that time. At the age of eighteen, Fernandez registered for the Selective Service.

In 1996, Fernandez applied for U.S. citizenship, and on June 21, 1996, he attended his naturalization interview. According to Fernandez, he signed the affidavit of allegiance to the United States that is part of the citizenship application, and an application inspector told him that he would receive a notice in the mail advising him of the date of his oath ceremony.

After failing to receive a notice for some time, Fernandez began inquiring about the date of his oath ceremony. Fernandez never received the notice, and it is undisputed that he did not complete the naturalization process and is not a U.S. citizen.

On July 9, 2003, Fernandez pleaded guilty in Virginia state court to distribution of oxycodone and Percocet. The court sentenced him to twenty years' imprisonment, with seventeen years suspended.

On February 8, 2006, the Department of Homeland Security ("DHS") served Fernandez with a Notice to Appear before the Immigration Court, charging him with removability under 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 2005) for having been convicted of an aggravated felony (an offense related to the illicit trafficking of a controlled substance) and under 8 U.S.C.A. § 1227(a)(2)(B)(I) (West 2005) for having been convicted of a controlled substance offense after admission to the United States. In response, Fernandez argued for termination of the removal proceedings against him on the ground that he is an unremovable "national of the United States." (J.A. at 44.)¹

On March 31, 2006, an immigration judge (IJ) conducted Fernandez's removal hearing. The hearing focused on whether Fernandez is a removable alien or an unremovable U.S. national. On April 21, 2006, the IJ terminated the removal proceedings against Fernandez, concluding that under our decision in Morin, Fernandez is a "national of the United States" because his permanent allegiance to the United States was established by virtue of his application for naturalization. Although the IJ stated that he agreed with the "better analysis" in the Ninth Circuit's decision in Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir.2003), and the majority opinion in our decision in Daly v. Gonzales, 129 Fed. Appx. 837 (4th Cir.2005)(unpublished), both of which held that 8 U.S.C.A. § 1101(a)(22) does not itself provide a means of acquiring U.S. national status, he believed that Morin compelled the conclusion that Fernandez is an unremovable U.S. national. The IJ concluded his decision by citing approvingly to the dissenting opinion in Daly, which disagreed with the majority's distinguishment of Morin based on its criminal context. See Daly, 129 Fed.Appx. at 845 (Duncan, J., dissenting) ("I do not agree that the existence of `different contexts' gives us license to interpret the exact language in [8 U.S.C.A. § 1101(a)(22)] differently in different cases.").

The DHS appealed, and on October 26, 2006, the BIA reversed the IJ's decision and ordered Fernandez removed from the United States. Citing to its recent decision in Matter of Navas-Acosta, 23 I. & N. Dec. 586 (BIA 2003), the BIA rejected Fernandez's argument that an alien may become a U.S. national through means other than birth and full naturalization. Also, like the Daly majority, the BIA distinguished Morin on the basis of its criminal context and thus treated as dicta Morin's interpretation of § 1101(a)(22).

Board Member Filppu filed a concurring opinion in which he expressed skepticism about the Board majority's conclusion that Morin's interpretation of the INA's definition of "national of the United States" is non-binding dicta. Specifically, he stated that "it is unlikely that the criminal law context of Morin permits us to construe the same statutory text differently in the case before us." (J.A. at 158.) Nevertheless, Board Member Filppu concurred in the result, for the following reason:

The Department of Homeland Security is not permitted to seek circuit court review of our decisions and could not obtain Fourth Circuit review of this nationality issue were we to follow Morin today. In these highly unusual circumstances, and especially given the unpublished decision in Daly v. Gonzales, I believe reversal of the Immigration Judge is warranted in order to seek clarification from the Fourth Circuit as to whether we are to follow Morin, despite our own reading of the statute, which is consistent with substantial circuit law subsequent to Morin.

(J.A. at 158 (citation omitted).)

Fernandez timely petitioned for review. We have jurisdiction pursuant to 8 U.S.C.A. § 1252(a)(1) (West 2005) (providing for appellate review of final orders of removal).

II.

Because this section of the opinion covers substantial ground, we will briefly lay out its course. In Part A, we discuss our decision in Morin. In Part B.1., we conclude that we must afford Chevron deference to the BIA's interpretation of § 1101(a)(22) and the INA's other nationality provisions. In Part B.2., we discuss the interplay between Morin's interpretation of the INA and the deference that we owe under Chevron to the BIA's contrary post-Morin interpretation. We ultimately conclude that Chevron dictates that we follow the BIA's interpretation if it is not arbitrary, capricious, or manifestly contrary to the INA. And in Part C, we apply Chevron and conclude that the BIA's interpretation, though contrary to Morin's, is a permissible one and thus is entitled to deference.

A.

Only "aliens" are subject to removal under the INA. See 8 U.S.C.A. § 1227(a) (West 2005) (listing "[c]lasses of deportable aliens"). The INA defines "alien" as "any person not a citizen or national of the United States." 8 U.S.C.A. § 1101(a)(3) (West 2005). All citizens of the United States are nationals, but some nationals are not citizens. The INA defines "national of the United States" as "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C.A. § 1101(a)(22). In turn, the word "permanent" is defined to mean "a relationship of continuing or lasting nature, as distinguished from temporary." 8 U.S.C.A. § 1101(a)(31) (West 2005). Congress did not, however, expressly describe the circumstances under which a person demonstrates "a relationship of continuing or lasting nature" with the United States. In other words, Congress has not specified whether § 1101(a)(22)(B) describes, rather than confers, U.S. nationality.

Fernandez argues that he qualifies as a "national of the United States" under § 1101(a)(22)(B) because he is a noncitizen who owes permanent allegiance to the United States. According to Fernandez, he has demonstrated his permanent allegiance by (1) filing a citizenship application, which required that he swear allegiance to the United States; (2) completing all steps to naturalization except for attending the oath ceremony (a deficiency he attributes to the Government's inaction, not his own...