Iasu v. Smith

• Decision Date: 18 December 2007
• Docket Number: No. 06-55681.,06-55681.
• Parties: Ghena Negash IASU, Petitioner-Appellant, v. Ron SMITH, Director of San Diego Field Office, U.S. Immigration and Customs Enforcement; Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Attorney General; Michael Chertoff, Secretary of the Department of Homeland Security; Anthony Cerone, Acting Officer-In-Charge, San Diego Detention Center, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

511 F.3d 881

Ghena Negash IASU, Petitioner-Appellant, v. Ron SMITH, Director of San Diego Field Office, U.S. Immigration and Customs Enforcement; Michael B. Mukasey,^* Attorney General; Michael Chertoff, Secretary of the Department of Homeland Security; Anthony Cerone, Acting Officer-In-Charge, San Diego Detention Center, Respondents-Appellees.

No. 06-55681.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2007.

Filed December 18, 2007.

Lori B. Schoenberg, Reeves & Associates, Pasadena, CA, for the petitioner-appellant.

Jennifer Paisner, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondents-appellees.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding. D.C. No. CV-05-00088-DMS.

Before: STEPHEN S. TROTT and JOHNNIE B. RAWLINSON, Circuit Judges, and SAMUEL P. KING,^** District Judge.

SAMUEL P. KING, District Judge:

Ghena Negash Iasu appeals the district court's order (1) dismissing for lack of subject matter jurisdiction his amended 28 U.S.C. § 2241 petition challenging his removability, and (2) declining to transfer the petition to the Ninth Circuit under section 106(c) of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005). We have appellate jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Iasu faces removal to Eritrea. But he contends he is a naturalized American citizen, and thus he challenges the government's power to remove him. See, e.g., Rivera v. Ashcroft, 394 F.3d 1129, 1136 (9th Cir.2005) ("The executive may deport certain aliens but has no authority to deport citizens."). Iasu, however, did not raise this contention during removal proceedings and did not appeal the immigration judge's (IJ's) final order of removal. Rather, he challenged his removal later by filing a § 2241 habeas petition in district court — a procedure that the REAL ID Act eliminated in lieu of a new provision, codified at 8 U.S.C. § 1252(a)(2)(D), allowing direct review of "constitutional claims or questions of law." The district court dismissed the petition for lack of jurisdiction under the REAL ID Act's jurisdiction-stripping provision set forth in 8 U.S.C. § 1252(b)(9),¹ and declined to transfer the matter to the Ninth Circuit because the amended petition was filed after the REAL ID Act's effective date of May 11, 2005. See Iasu v. Chertoff, 426 F.Supp.2d 1124 (S.D.Cal.2006).

On appeal, Iasu contends the REAL ID Act is an unconstitutional suspension of the writ of habeas corpus as applied to his claim to citizenship because (1) there is always jurisdiction to determine jurisdiction, and (2) American citizenship must be intentionally relinquished and cannot be established by waiver. See, e.g., Theagene v. Gonzales, 411 F.3d 1107, 1110 (9th Cir. 2005). He claims he no longer has an opportunity to raise his non-frivolous claim of citizenship. Alternatively, he seeks to have the Ninth Circuit adjudicate his citizenship by construing his appeal as a petition directly reviewing a final order of removal.

A district court's decision to dismiss a habeas corpus petition for lack of subject matter jurisdiction is reviewed de novo. Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir.2006).

II.

Iasu left Ethiopia in 1978 for Sudan. He was born in Eritrea, which was part of Ethiopia before Eritrea became a country in 1993. He left Sudan in 1985 for the United States. He became a lawful permanent resident of the United States in 1986. After two attempts at naturalization in the early-1990's, Iasu's naturalization application was approved on April 24, 2002. He had passed a citizenship test, and satisfied several other conditions of citizenship. He also filed a petition for a name change in conjunction with the naturalization process.² A "Form N-XXX" dated April 23, 2002, indicated that Iasu petitioned to have his named changed to "Amare Gabregzeabher Nugsa." That form also has a line reading "the above petition was granted by the court on _____" with "July 04, 2002" typed into the space. It was signed by a deputy clerk. (The "July 4, 2002" was apparently pre-dated.) The naturalization application has an oath of allegiance signed by "Amare Gabreegzeabher [sic] Nugsa" and dated April 23, 2002.³ Iasu's declaration states that an immigration service officer asked him to raise his hand, read the oath, and told him to sign his name. Iasu states that, after he signed his name, the officer said "congratulations, you're done." The officer told him that he would get a citizenship certificate on July 4, 2002 (and presumably participate in a "public ceremony" as required under 8 U.S.C. § 1448(a)).

Iasu, however, failed to appear at the Fourth of July citizen-ship ceremony. He couldn't appear because he had been arrested for armed assault in the meantime on May 30, 2002. On July 19, 2002, he was convicted in state court of assault with a deadly weapon and was sentenced to three years in state prison.

After Iasu's release from prison, the government initiated removal proceedings against him on January 30, 2004, under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. During different hearings before different IJs (proceeding pro se, with continuances to allow him to seek counsel), he made some references to his citizenship status. Both Iasu and the IJs seemed uncertain as to whether Iasu was a citizen of Eritrea or, rather, Ethiopia. Iasu also mentioned his 2002 naturalization proceedings, and that he was an American citizen, but he did not base his challenge to removal on his purported American citizenship status. He eventually waived his right to seek deferral of removal and waived his right to appeal to the Board of Immigration Appeals (BIA). An IJ issued a final order of removal to Eritrea.

After being remanded into federal custody, Iasu filed a § 2241 habeas petition in district court (through counsel) on January 18, 2005, challenging his indefinite detention under Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (limiting an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States). The habeas petition was then amended on July 22, 2005 (after the REAL ID Act took effect on May 11, 2005) to challenge his removal, asserting for the first time that he was a naturalized American citizen. After the district court dismissed the amended habeas petition and declined to transfer the matter to the Ninth Circuit, Iasu filed a timely appeal.

III.

In Rivera, the Ninth Circuit held that — because of the jurisdictional nature of a non-frivolous claim to American citizenship in a removal proceeding — habeas jurisdiction existed in a district court under § 2241 to address such a claim. 394 F.3d at 1138 ("The only result consistent with the Fifth and Fourteenth Amendments is that habeas relief be available to hear Rivera's citizenship claim."). It found "extreme circumstances," id. at 1139, because "[a]n assertion of U.S. `citizenship is . . . a denial of an essential jurisdictional fact' in a deportation proceeding." Id. at 1136 (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922)). It also relied on the principle that American citizenship must be intentionally relinquished. Id. at 1137 (citing Vance v. Terrazas, 444 U.S. 252, 260-61, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980)). "Because he has a colorable citizenship claim, Rivera has a constitutional right to judicial review, and may obtain such review via habeas corpus even after accepting deportation and waiving his right to appeal the IJ's decision." Id.; see also Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.2005) (holding on direct review from the BIA that "[b]ecause Minasyan's claim to citizenship is not patently frivolous, we have jurisdiction to review it, irrespective of whether he has exhausted his claim before the agency."). Under Rivera, "the Constitution is violated when a person with a non-frivolous claim to U.S. citizenship is deported without receiving a judicial determination of that claim." 394 F.3d at 1140.

Rivera was grounded in part in INS v. St. Cyr, 533 U.S. 289, 305, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), wherein the Supreme Court held that a writ of habeas corpus under § 2241 was necessary to avoid implicating the Suspension Clause.⁴ See Rivera, 394 F.3d at 1137. After passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, courts lacked jurisdiction to review final orders of removal for aggravated felons. St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271. In allowing a § 2241 remedy, St. Cyr reasoned that a regime precluding any judicial review of "pure questions of law" would be constitutionally suspect under the Suspension Clause. Id. at 305, 121 S.Ct. 2271. St. Cyr also indicated that habeas relief might not be required if Congress provided "an adequate substitute through the courts of appeals." Id. at 314 n. 38, 121 S.Ct. 2271.

The REAL ID Act changed the statutory regime. Effective May 11, 2005, the REAL ID Act responded to St. Cyr by eliminating all district court habeas jurisdiction over orders of removal. Title 8 U.S.C. § 1252(a)(5), as amended by § 106(a) of the REAL ID Act, provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every provision...