Huhges v. Ashcroft

• Decision Date: 17 April 2001
• Docket Number: No. 99-70565,99-70565
• Citation: 255 F.3d 752
• Parties: (9th Cir. 2001) LESZEK HUGHES, A.K.A. THOMAS LLOYD HUGHES, A.K.A. TOM, PETITIONER, v. JOHN ASHCROFT, <A HREF="#fr1-*" name="fn1-*">* ATTORNEY GENERAL, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 752

255 F.3d 752 (9th Cir. 2001)

LESZEK HUGHES, A.K.A. THOMAS LLOYD HUGHES, A.K.A. TOM, PETITIONER, v. JOHN ASHCROFT,^* ATTORNEY GENERAL, RESPONDENT.

No. 99-70565

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted April 17, 2001 ^** Pasadena, California

Filed June 22, 2001

[Copyrighted Material Omitted]

Jesse A. Moorman, Los Angeles, California, for the petitioner.

Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition to Review the Decision of the Board of Immigration Appeals INS No. A11-761-460

Before: Harry Pregerson, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.

Graber, Circuit Judge

Opinion by Judge Graber; Partial Concurrence and Partial Dissent by Judge Fernandez

OPINION

Petitioner Hughes challenges a final order of removal issued by the Board of Immigration Appeals (BIA) on April 9, 1999. The BIA held that Hughes was removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) because he was an alien who had been convicted of an aggravated felony. On appeal, he argues that he is a "national of the United States" or a "citizen" and thus is not an alien subject to removal proceedings. We disagree and, for that reason, dismiss the petition.

JURISDICTION

We begin with the proposition that, in general, we lack jurisdiction to review a final order of removal of this kind. Title 8 U.S.C. §§ 1252(a)(2)(C) provides that"no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii)." It is undisputed that Petitioner committed such an offense and that the commission of the offense is the reason why he was found to be removable. See Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir. 2001) (holding that the court lacked jurisdiction of a similar removal order), petition for cert. filed, 69 U.S.L.W. 3740 (U.S. May 8, 2001) (No. 00-1693).

Nevertheless, we do have jurisdiction to review Petitioner's claim that he is a United States national or citizen and thus is not "an alien" subject to removal. Scales v. INS, 232 F.3d 1159, 1161 (9th Cir. 2000). Title 8 U.S.C. §§ 1252(b)(5)(A) requires the court of appeals to decide the issue"[i]f the petitioner claims to be a national of the United States " and the facts -- as here -- are not in dispute. See also Briseno v. INS, 192 F.3d 1320, 1323 n.4 (9th Cir. 1999) (acknowledging that a petitioner's status as an alien is a "jurisdictional fact"); Bowrin v. INS, 194 F.3d 483, 486 (4th Cir. 1999) (holding that the court of appeals had jurisdiction to determine the "jurisdictional fact" of whether the petitioner was an alien).

FACTUAL AND PROCEDURAL HISTORY

Petitioner was born in Poland in 1956. He became an orphan and was adopted by two United States citizens in May of 1960. In October of 1960, Petitioner was admitted into the United States as an immigrant. His parents did not have him naturalized, and Petitioner does not contend (nor does the record reflect) that he ever initiated naturalization proceedings on his own.

In 1985, when he was 28 years old, Petitioner was convicted in California state court of felonies stemming from his repeated sexual abuse of a minor. He was sentenced to 24 years' imprisonment but was paroled in 1997 after having served 12 years of his sentence.

Shortly after his release from prison, in December of 1997, Petitioner was placed in removal proceedings. On February 10, 1998, an immigration judge (IJ) ordered Petitioner's removal. Petitioner, who had appeared pro se, waived the right to appeal, and the removal order became final.

In July of 1998, Petitioner, through a lawyer, filed a motion to reopen. The IJ denied the motion because it was untimely and because Petitioner presented no new, relevant evidence.

In August of 1998, Petitioner filed a "motion to reconsider" based on new evidence that the Polish government believed that Petitioner was a United States citizen. The IJ denied that motion as well.

Petitioner timely appealed to the BIA. The BIA dismissed the appeal on procedural grounds, without reaching the merits.

Petitioner timely filed this petition for review.

STANDARD OF REVIEW

Under 8 U.S.C. §§ 1252(b)(5), we review a petitioner's claim to be a national of the United States to determine whether a genuine issue of material fact exists. If not, we must decide the claim. 8 U.S.C. §§ 1252(b)(5)(A).¹ We review de novo the legal questions involved in a claim that a person is a national of the United States. Scales, 232 F.3d at 1162.

DISCUSSION

A. "National of the United States"

Title 8 U.S.C. §§ 1101(a)(3) defines an alien as "any person not a citizen or national of the United States. " In turn, 8 U.S.C. §§ 1101(a)(22) defines a "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." Only aliens are removable. 8 U.S.C. §§ 1227 (identifying classes of removable aliens). Thus, if Petitioner is either a "citizen . . . of the United States" or a "national of the United States," he is not removable.

Petitioner argues that he is a "national of the United States."² He reasons that the length of his residency in the United States, his lack of allegiance to Poland, his allegiance to the United States, and the fact that Poland does not consider him a citizen support his contention.

All circuits that have considered the question recognize that the category of noncitizen "national of the United States" is a constricted one, and they reject the argument that one can become a national through lengthy residency alone. United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997); Carreon-Hernandez v. Levi, 543 F.2d 637, 638 (8th Cir. 1976); Oliver v. INS, 517 F.2d 426 (2d Cir. 1975). It appears that, to qualify as a national, a noncitizen resident of the United States must have applied for citizenship. United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996); CarreonHernandez, 543 F.2d at 638.

The Ninth Circuit has not "definitively" settled on the meaning of the term "national" in the context of 8 U.S.C. §§ 1101. Sotelo, 109 F.3d at 1448. We have "suggested a person attains national status primarily through birth. " Id. We also have acknowledged that the term historically referred to the noncitizen inhabitants of United States territories. Id. (quoting Rabang v. INS, 35 F.3d 1449 (9th Cir. 1994)). Finally, we have rejected the argument that a person who enters the United States illegally, lives in this country for a lengthy period, and maintains a subjective allegiance to the United States qualifies as a "national." Id. (Of course, here, Petitioner entered the United States legally, so Sotelo does not dispose of this case.)

The Second Circuit has addressed the question whether a person in a position similar to Petitioner's qualifies as a "national," and that court concluded that the answer is "no." Oliver, 517 F.2d at 427. In Oliver, the petitioner was born in Canada, lawfully entered the United States at the age of 10, and became a permanent resident. She lived in the United States for 20 years, married and had children with one United States citizen, divorced him, and married another United States citizen. After the petitioner was convicted of a narcotics offense, the INS sought to deport her. She argued that, because of her residency in the United States since childhood, she owed allegiance to the United States and was thus a "national." Id.

The Second Circuit rejected the petitioner's argument, reasoning that her allegiance was to Canada rather than to the United States, albeit by neglect rather than intention, because she had not opted to begin the naturalization process and thereby officially declare her allegiance to the United States. Id. at 427-28. The court further reasoned that, historically, the term "national" applied to an inhabitant of Unites States territories and that the primary way to become a "national" was through birth. Id.

In Carreon-Hernandez, the Eighth Circuit adopted the reasoning of Oliver and held that a permanent resident alien who entered the United States legally, lived in this country for 20 years, and during that time married a citizen and fathered a son, did not qualify as a "national" because he had never begun the naturalization process. 543 F.2d at 638 (affirming and adopting the district court's opinion at 409 F. Supp. 1208 (D. Minn. 1976)).

Using a similar analysis, the Fourth Circuit held that a native of Mexico who had applied for United States citizenship was a "national of the United States " for purposes of 18 U.S.C. §§ 2332, which prohibits the murder of United States nationals outside the United States. Morin, 80 F.3d at 126. The court reasoned that "an application for citizenship is the most compelling evidence of permanent allegiance to the United States short of citizenship itself." Id.

Thus, it appears that, in order for a person who is born outside the United States to qualify for "national" status, the person must, at a minimum, demonstrate (1) birth in a United States territory or (2) an application for United States citizenship. Because Petitioner does not meet either of those minimal requirements, we need not delineate what additional facts (if any) he would have to show. He was not born in a United States territory, and at no time during his 40 years of residency in the United States did he attempt to apply for citizenship.

Petitioner argues that the fact that Poland does not consider him to be a citizen of Poland means that he is a national of the United States. That fact may be evidence of how Polish law treats questions of citizenship and nationality, but it can have no bearing on our interpretation of United States law on those topics. Even if this fact is viewed as evidence of Pe...