Marquez-Almanzar v. I.N.S.

• Decision Date: 08 August 2005
• Docket Number: Docket No. 03-40027(CON).,Docket No. 03-40497(CON).,Docket No. 03-4395(L).
• Citation: 418 F.3d 210
• Parties: Jose Napoleon MARQUEZ-ALMANZAR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

418 F.3d 210

Jose Napoleon MARQUEZ-ALMANZAR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 03-4395(L).

Docket No. 03-40027(CON).

Docket No. 03-40497(CON).

United States Court of Appeals, Second Circuit.

Argued October 8, 2004.

Decided August 8, 2005.

Peter Markowitz, The Bronx Defenders, Bronx, NY, for Petitioner.

Patricia Buchanan, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York; Megan L. Brackney and Meredith E. Kotler, Assistant United States Attorneys, on the brief), New York, NY, for Respondent.

Before: WALKER, Chief Judge, MINER and CABRANES, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

This case was transferred to our court by an order of the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge), which found, pursuant to 8 U.S.C. § 1252(b)(5), that the district court lacked jurisdiction over the nationality claim made in Jose Napoleon Marquez-Almanzar's § 2241 habeas corpus petition. As we explain below, resolution of the complex procedural and jurisdictional questions originally presented by the case is no longer necessary in light of the enactment, on May 11, 2005, of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231. The REAL ID Act eliminates habeas corpus review of orders of removal and requires that any § 2241 petition pending in the district court at the time of its enactment be transferred to the court of appeals in which the petition could have been properly brought as a petition for review from a final order of removal under 8 U.S.C. § 1252. We thus construe Marquez-Almanzar's case as a petition for review from the January 31, 2003, order of the Board of Immigration Appeals ("BIA") and reach the merits of Marquez-Almanzar's claim without considering the district court's jurisdictional ruling.¹

Marquez-Almanzar seeks to avoid removal by arguing that he can demonstrate that he owes "permanent allegiance" to the United States and thus qualify as a U.S. national under section 101(a)(22)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(22)(B). 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." We hold that § 1101(a)(22)(B) itself does not provide a means by which an individual can become a U.S. national, and deny Marquez-Almanzar's petition accordingly.

BACKGROUND

In April 1976, Marquez-Almanzar, a native of the Dominican Republic, was admitted to the United States as a lawful permanent resident. In November 1984, he voluntarily enlisted in the U.S. Army. Marquez-Almanzar served from 1985 to 1993, for three years as a regular and for five years as a reservist. While in the Army, he submitted an application for U.S. citizenship, but the application apparently was never processed.² Several years after finishing his military service, in May 1998, Marquez-Almanzar was convicted in New York state court of possessing and attempting to sell cocaine, for which he was sentenced to three concurrent terms of imprisonment, the longest of which was a term of seven years to life. In May 1999, the Immigration and Naturalization Service ("INS") served Marquez-Almanzar with a Notice to Appear, charging that he was subject to removal from the United States both because he was an alien who had been convicted of a controlled-substance offense, see 8 U.S.C. § 1227(a)(2)(B)(i), and because he was an alien who had been convicted of an "aggravated felony," as that term is defined in 8 U.S.C. § 1101(a)(43), see 8 U.S.C. § 1227(a)(2)(A)(iii). In December 1999, hearings commenced in immigration court, at which Marquez-Almanzar was represented by an Accredited Immigration Representative. In his defense, Marquez-Almanzar claimed that the convictions that provided the basis for his removal were still pending on direct appeal. On December 16, 1999, the immigration judge ("IJ") agreed to suspend removal proceedings in order to determine whether this claim was true.

While the proceedings were suspended, in January 2000, Marquez-Almanzar applied to the INS for naturalization, indicating on his application form that he qualified for citizenship based on his service in the U.S. Army. On June 19, 2000, when Marquez-Alamanzar's removal hearings resumed, the IJ determined that Marquez-Alamanzar's convictions were not pending on appeal. Marquez-Alamanzar then asked that removal proceedings be terminated pursuant to former 8 C.F.R. § 239.2(f) (2000),³ stating that he had applied for naturalization and claiming that he could demonstrate prima facie eligibility for citizenship. The IJ held that Marquez-Almanzar was not prima facie eligible because his drug convictions precluded him from showing the "good moral character" required for naturalization, and, further, because there were no "unusual or compelling humanitarian reasons" to terminate the proceedings under 8 C.F.R. § 239.2(f). The IJ then ordered Marquez-Almanzar removed to the Dominican Republic.

On July 3, 2000, Marquez-Almanzar appealed the IJ's decision to the BIA, arguing that the IJ erred in finding him prima facie ineligible for naturalization. On July 7, 2000, the BIA rejected his appeal on the grounds that he had failed to attach proof of service. Marquez-Almanzar resubmitted his papers on July 27, 2000, only to have the BIA, on October 18, 2000, dismiss his appeal as untimely. He thereafter filed numerous motions for reconsideration, all of which were rejected on procedural grounds.

On December 20, 2001, Marquez-Almanzar filed a pro se habeas corpus petition in the United States District Court for the Southern District of New York, claiming for the first time that he was a national of the United States, not an alien, and thus could not be removed. The district court appointed counsel to represent Marquez-Almanzar, and, upon receiving a joint "Stipulation and Order of Settlement and Withdrawal" from Marquez-Almanzar and the government, allowed Marquez-Almanzar to withdraw his habeas petition without prejudice, vacated all of the BIA's previous orders, and remanded the case to the BIA for consideration on the merits of the claim of U.S. nationality raised in Marquez-Almanzar's habeas petition. See Marquez v. INS, No. 02 Civ. 311 (S.D.N.Y. Nov. 1, 2002).

Following the district court's order, Marquez-Almanzar submitted to the BIA a "motion to terminate" removal proceedings, arguing that his service in the Army, efforts to acquire U.S. citizenship, and other evidence, demonstrated that he "owed permanent allegiance" to the United States, and was thus a national of the United States as defined by 8 U.S.C. § 1101(a)(22)(B). On January 31, 2003, the BIA rejected Marquez-Almanzar's submission, construing it as a motion to reopen, and finding that since its October 18, 2000, order had dismissed Marquez-Almanzar's appeal of the IJ's order of removal as untimely, jurisdiction over a motion to reopen still lay with the IJ. The BIA's order did not address the fact that the district court's remand order had purported to vacate the BIA's October 18, 2000, order, or otherwise refer to the district court's remand.

On February 21, 2003, Marquez-Almanzar petitioned our court for review of the BIA's January 31, 2003, order, characterizing it as a "final order of removal." Additionally, on March 9, 2003, Marquez-Almanzar filed a new habeas corpus petition in the district court pursuant to 28 U.S.C. § 2241, asserting that he could not be removed from the United States, because (1) he was a U.S. national and (2) the IJ had erroneously found that he was not prima facie eligible for naturalization as a U.S. citizen based on his aggravated felony conviction. On May 28, 2003, the district court held that, under 8 U.S.C. § 1252(b)(5), only the court of appeals could hear Marquez-Almanzar's nationality claim, and that the district court therefore did have not jurisdiction to entertain this claim as part of a § 2241 petition. The district court accordingly purported to "dismiss" Marquez-Almanzar's petition, and transferred it to our court under 28 U.S.C. § 1631. See Marquez-Almanzar v. Ashcroft, 2003 WL 21283418 (S.D.N.Y. June 3, 2003), 2003 U.S. Dist. LEXIS 9272, at *19-*20. Marquez-Almanzar appealed.

We subsequently consolidated: 1) the case as it was transferred to us by the district court; 2) Marquez-Almanzar's appeal from the district court's decision dismissing his § 2241 petition; and 3) Marquez-Almanzar's petition for review of the January 31, 2003, BIA order.

DISCUSSION

I. Nationality Claim

A. Jurisdiction

The district court transferred Marquez-Almanzar's § 2241 petition to our court on the theory that 8 U.S.C. § 1252(b)(5)⁴ bars district courts from adjudicating in the first instance claims of U.S. nationality, when raised as a defense to removal. The court found that § 1252(b)(5) "on its face, appears to provide that nationality claims shall be presented to the Court of Appeals in the first instance, and transferred to the District Court only if the Court of Appeals determines that the petition involves genuine issues of material fact." Marquez-Almanzar, 2003 U.S. Dist. LEXIS 9272, at *7.

Marquez-Almanzar argues that the district court erred in light of the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and our own decisions in Liu v. INS, 293 F.3d 36 (2d Cir.2002), and Wang v. Ashcroft, 320 F.3d 130 (2d Cir.2003). In his view, these cases establish that habeas corpus review remains available unless Congress has explicitly abrogated such review by referring to "habeas corpus" or "§ 2241" in the statute said to eliminate it. Neither § 1252(b)(5), nor any other part of § 1252, contained such a reference at the time Marquez-Almanzar brought his habeas petition in the district court. The government argues, following the reasoning of the district...