Leal Santos v. Gonzales, Civil Action No. 07-10203-WGY.

• Decision Date: 10 July 2007
• Docket Number: Civil Action No. 07-10203-WGY.
• Parties: Aldevino Manuel LEAL SANTOS, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. District Court — District of Massachusetts

Page 180

495 F.Supp.2d 180

Aldevino Manuel LEAL SANTOS, Petitioner, v. Alberto R. GONZALES, Respondent.

Civil Action No. 07-10203-WGY.

United States District Court, D. Massachusetts.

July 10, 2007.

Cheryl J. Sturm, Chadds Ford, PA, for Petitioner.

Jesse M. Bless, Lyle D. Jentzer, Office of Immigration and Litigation, Washington, DC, for Respondent.

MEMORANDUM

YOUNG, District Judge.

This case presented a single factual issue for resolution. Aldevino Manuel Leal Santos ("Aldevino") would have derivative citizenship only if his mother, Francelina Augusta Leal Santos ("Francelina"), was physically present in the United States for a certain period of time prior to his birth. Aldevino was required to show that Francelina was in the United States for at least ten years, five years after turning fourteen. To reach this factual issue, however, this Court had to first wade through a thicket of procedural issues, some of which appeared to be of first impression.

I. BACKGROUND

Aldevino arrived in the United States as a five-year-old boy `in 1962 with his parents, brother, and sister. Administrative Record ("A.R.") 334, 549, 551. The family settled in Massachusetts. Aldevino had what was, by all appearances, an ordinary childhood. As a young adult, however, Aldevino fell in with a bad crowd and began trafficking in drugs. A.R. 18-20.

In 1997, Aldevino pled guilty to the charges of conspiracy to possess with intent to distribute more than five kilograms of cocaine, conspiracy to commit money laundering, subscribing to a false tax return, and criminal forfeiture. Aldevino was sentenced to 135 months of imprisonment, five years of supervised release, and a $600 special assessment. United States v. Santos, No. 96-cr-10231 (D.Mass. Oct. 29, 2001) (Woodlock, J.) (amended judgment).

While Aldevino was serving his term in Pennsylvania, the government instituted removal proceedings. Aldevino contested the proceedings, inter alia, on the ground that he had derivative citizenship through his mother, Francelina, who was born in Portugal but whose own mother was born in Massachusetts. Francelina testified on Aldevino's behalf that she came to America twice as a girl. An immigration hearing officer found that Francelina was "distraught, confused, and distressed." A.R. 35. The hearing officer further stated that while he found that Francelina was neither evasive nor misleading, he was unable to credit her testimony over a visa application that contradicted Francelina's testimony about when she had come to the United States. Id. at 3. The Board of Immigration Appeals (the "Board") affirmed. Id.

Aldevino filed his petition for review with the Third Circuit. The Third Circuit certified, pursuant to 8 U.S.C. & sect; 1252(b)(5)(B), that a genuine issue of material fact existed with respect to Aldevino's derivative citizenship claim. Santos v. Attorney General, No. 06-2174 (3d Cir. Oct. 26, 2006). But, because Aldevino had been deported in the interim, the Third Circuit was unsure as to which district court to transfer the case for fact-finding. Id. The government suggested the Eastern District of Pennsylvania for the convenience of Aldevino's counsel. Respondent's Response to the Court's Oct. 26, 2006 Order, Santos v. Attorney General No. 06-2174 (3d Cir. Nov. 6, 2006). Aldevino's counsel in turn requested transfer to the District of Massachusetts, where Francelina resides, so that she might be able to testify. Petitioner's Response to the Court's Oct. 26, 2006 Order, Santos v. Attorney General No. 06-2174 (3d Cir. Nov. 8, 2006). The Third Circuit agreed to transfer the case to the District of Massachusetts, whereupon the case was assigned to this session of the Court.

II. PROCEDURAL MATTERS

The Third Circuit's transfer of the case directly to the District of Massachusetts in this immigration proceeding appears unprecedented. It raises several procedural issues that this Court addresses in turn.

A. Jurisdiction

The transfer provision provides that when a circuit court finds a genuine issue of material fact, the court "shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides." 8 U.S.C. & sect; 1252(b)(5)(B) (2005). Literally read, this statute permits transfer only to the district in which the petitioner resides. Because Aldevino has been deported, there is no district court that could hear this case under the literal interpretation of the statute. The Third Circuit implicitly rejected this literal interpretation when it asked the parties where it should transfer the case.

The Third Circuit's implicit analysis is sound. Aldevino's removal did not render this case moot because cancellation of removal is a remedy that remains available. See Lopez v. Gonzales, — U.S. 127 S.Ct. 625, 629 n. 2, 166 L.Ed.2d 462 (2006). Since section 1252(b)(5) constitutes the sole avenue for review of nationality claims on a petition for review, 8 U.S.C. § 1252(b)(5)(C), the literal interpretation of the transfer statute would raise serious constitutional questions with respect to the ability of the government to deport citizens without their ever having a day in court. See Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.2005) ("The Constitution does not permit American citizenship to be so easily shed." (quoting Rivera v. Ashcroft, 394 F.3d 1129, 1136 (9th Cir.2005))); Rodriguez v. United States Dep't of Justice, Civil No. 07-cv-055-SM, 2007 WL 1321712, at *1 n. 2 (D.N.H. May 4, 2007) ("[T] he Constitution is violated when a person with a nonfrivolous claim to United States citizenship is deported without receiving a determination of that claim.").

Courts do retain a tiny sliver of habeas jurisdiction with respect to petitioners claiming that they are citizens. 8 U.S.C. & sect; 1252(e)(2)(A) (2005). In Leitao v. Reno, 311 F.3d 453, 455 (1st Cir.2002), the First Circuit held that a deported alien's habeas petition was not moot because he had filed the habeas petition while he was still in custody, thereby satisfying the jurisdictional custody requirement of 28 U.S.C. & sect; 2241. When, however, deportation precedes the habeas petition, courts have held that they lack jurisdiction because the "in custody" jurisdictional requirement is not satisfied. See Sadhvani v. Chertoff, 460 F.Supp.2d 114, 118-19 (D.D.C.2006) (collecting cases).

In light of the foregoing, this Court construes the transfer provision as a venue provision rather than as stating a jurisdictional requirement. Cf. INS v. St. Cyr, 533 U.S. 289, 304-05, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (construing immigration statute to avoid constitutional question). This interpretation ensures the availability of district courts to make the factual determinations underpinning citizenship claims.

This interpretation of the transfer provision as a venue provision also makes sense as a practical matter. Had Aldevino still resided in the Middle District of Pennsylvania and the Third Circuit transferred the case to that district, Aldevino could still have requested transfer to the District of Massachusetts under the general venue transfer statute, 28 U.S.C. § 1404(a) (2005).

Still, the question remained whether venue was proper. This Court posed the question to the parties, who agreed that venue was proper. Aldevino's counsel further stated explicitly that this Court had personal jurisdiction over him. Based on these representations, this Court was satisfied that jurisdiction and venue were proper.

B. Choice of Law

There is the further question whether this Court ought follow First Circuit or Third Circuit law. The rule with respect to state-law claims is that the transferee court applies the choice-of-law rules of the transferor court. Ferens v. John Deere Co., 494 U.S. 516, 519, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990). The Supreme Court has yet to address the question with respect to claims arising under federal law.

Although at least one transferee court has applied the circuit law of the transferor court, see In re Rospatch Sec. Litig., 760 F.Supp. 1239, 1256-57 (W.D.Mich.1991), circuit courts considering the issue have applied their own circuit law. Hartline v. Sheet Metal Workers' Nat. Pension Fund, 286 F.3d 598, 599 (D.C.Cir.2002); McMasters v. United States, 260 F.3d 814, 819 (7th Cir.2001); Murphy v. F.D.I.C., 208 F.3d 959, 966 (11th Cir.2000); Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir.1994). These courts have followed the reasoning laid out in the seminal case, In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175-76 (D.C.Cir.1987). In that case, then-Judge Ginsburg wrote that "it is logically inconsistent to require one judge to apply simultaneously different and conflicting interpretations of what is supposed to be a unitary federal law." This reasoning is based on the fiction that federal law is the same everywhere, though federal judges have, of course, reached conflicting interpretations of federal law. This Court need not determine whether this fiction makes good sense because the parties agree that First Circuit law ought apply because any appeal from this Court's judgment would be to the First Circuit. This Court will follow the parties' lead and apply First Circuit law. See May v. Social Security Admin. Comm'r, 125 F.3d 841, 1997 WL 616196, at *1 n. 1 (1st Cir. Oct.7, 1997) (unpublished opinion) (noting that neither party had objected to the District of Maine's applying Second Circuit law).

III. DERIVATIVE CITIZENSHIP

A. Burden of Proof

The parties disputed whether Aldevino bore the burden of proving derivative citizenship. In removal proceedings, the United States must establish the alienage of the person sought to be removed. 8 C.F.R. § 1240.8(c) (2007). The government bears the burden by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 281, 284-85, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The Board applies the rule that evidence of foreign birth...