Marquez-Marquez v. Gonzales

• Decision Date: 06 July 2006
• Docket Number: No. 05-60436.,05-60436.
• Parties: Claudia Lorena MARQUEZ-MARQUEZ, a.k.a. Claudia Moreno-Marquez, a.k.a. Claudia Moreno, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 548

455 F.3d 548

Claudia Lorena MARQUEZ-MARQUEZ, a.k.a. Claudia Moreno-Marquez, a.k.a. Claudia Moreno, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-60436.

United States Court of Appeals, Fifth Circuit.

July 6, 2006.

Lynn S. Olinger, Turin, Turin & Olinger, Dallas, TX, for Petitioner.

Jennifer Jeanette Keeney, Thomas Ward Hussey, Dir., Linda Susan Wendtland, Edward C. Durant, U.S. Dept. of Justice, OIL, Washington, DC, Anne M. Estrada, U.S. INS, Frank D. Able, Asst. U.S. Atty., Dallas, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petitions for Review of an Order from the Board of Immigration Appeals.

Before GARWOOD, DAVIS and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Claudia Lorena Marquez-Marquez, also known as Claudia Marquez-Moreno, (Moreno) petitions for review of an order by the Board of Immigration Appeals (BIA) affirming the Immigration Judge's order that Moreno be removed from the United States. We hold that under the undisputed facts Moreno did not automatically obtain U.S. citizenship pursuant to section 301(g) of the Immigration and Naturalization Act, 8 U.S.C. § 1401(g), by virtue of her adoption by a U.S. citizen. Having no other claim to U.S. citizenship, Moreno is an alien. She is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1227(a)(2)(B) (and likewise by 8 U.S.C. § 1227(a)(2)(A)(iii)). Accordingly, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review her challenge (which does not fall within section 1252(a)(2)(D)) to the rulings of the Immigration Judge (IJ) and the BIA denying her relief under former section 212(c) on the basis that in the exercise of discretion she did not merit and was not deserving of such relief.

Facts and Proceedings Below

The undisputed facts respecting Moreno's citizenship are as follows. She was born in Mexico on September 1, 1971, to unmarried Mexican citizens. In June 1973, in Mexico, her mother married Manuel Moreno (Manuel), a U.S. citizen. Manuel was born in the United States in 1933 and prior to 1971 had been physically present in the United States for not less than ten years, at least five of which were after 1947. In 1976, on Manuel's application, Moreno was admitted to the United States as a lawful permanent resident. On December 16, 1980, Manuel adopted Moreno as his daughter in a New Mexico state court proceeding. There is no claim (nor any evidence) of any relationship between Manuel and Moreno's mother (or between Manuel and Moreno) prior to 1973. In 1993, when Moreno was 21, her mother became a naturalized citizen of the United States.

Moreno dropped out of high school in her junior year and began cohabiting with Gustavo Soto. The two of them frequently used drugs and often supported themselves by selling drugs. In October 1993, Moreno participated with Soto and others in the illegal transportation of marihuana by motor vehicle from Las Cruces, New Mexico to a location on Interstate Highway 25 in the vicinity of Truth or Consequences, New Mexico. The marihuana was moved in one vehicle and Moreno and Soto were in a separate vehicle looking out for police. Moreno and Soto were arrested, charged, and released on bail. Moreno then fled with Soto to Mexico, and she became the subject of a federal warrant as a fugitive. After becoming frightened by Soto's abusive conduct towards her, Moreno returned to the United States and surrendered to federal authorities. In August 1994, Moreno, pursuant to a plea agreement, pled guilty to, and was convicted of, possession with intent to distribute more than 50 kilograms of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, and in October 1994 she was sentenced for that offence by the United States District Court for the District of New Mexico to five years' probation.

Moreno abstained from drugs between 1996 and early 1998, but then began to frequent a "party house" in Las Cruces where she frequently used cocaine.¹ Moreno was at this house with a number of people on an evening in June 1998, when Ty Lowery (Lowery) was murdered. In July 1998, based on accusations from some of those present, Moreno was arrested and charged with murder, conspiracy, and false imprisonment. In October 1999 New Mexico state court proceedings, Moreno, following a jury trial, was acquitted of both the murder and conspiracy charges, but was convicted of falsely imprisoning Lowery, and in January 2000 she was sentenced to three years' imprisonment.²

In May 2000, the New Mexico federal district court revoked Moreno's probation for her 1994 drug conviction and sentenced her to serve 72 months in prison for that possession with intent to distribute offense.

While she was serving her federal sentence, Moreno filed an application with the U.S. Citizenship and Immigration Services (CIS) seeking a determination that she is a U.S. citizen. On July 1, 2004, the CIS denied Moreno's application after concluding that Moreno had not met the requirements of sections 320 or 321 of the Immigration and Naturalization Act (INA).³ The CIS noted that these sections refer to derivative citizenship after birth. The CIS explicitly did not consider section 301 of the INA, codified as 8 U.S.C. § 1401, because it noted that adoption does not establish the "blood relationship" required by section 301 for obtaining citizenship at birth.

On March 5, 2004, the Department of Homeland Security (DHS) served Moreno with a Notice to Appear (NTA) alleging that she was an alien subject to removal based on each of her two prior convictions. Specifically, the DHS alleged that Moreno's 1994 drug trafficking conviction was an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B),⁴ making Moreno subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii),⁵ and that it was also a controlled substance offense, making Moreno subject to removal under 8 U.S.C. § 1227(a)(2)(B)(i).⁶ In the NTA, the DHS further alleged that Moreno's conviction of false imprisonment in New Mexico was a crime of violence and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(F),⁷ making Moreno subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

At her Dallas, Texas removal hearing, Moreno claimed that she is a U.S. citizen under 8 U.S.C. § 1401(g), section 301(g) of the INA, by virtue of her 1980 adoption by a U.S. citizen, Manuel, and, therefore, that she is not subject to removal. In the alternative, Moreno argued that she is eligible for, and she requested, discretionary relief under INA former section 212(c)⁸ for her 1994 drug-trafficking conviction. She further argued that she was not removable based only on her 1999 false-imprisonment conviction because it was not a crime of violence and, therefore, not an aggravated felony.

On November 30, 2004, the immigration judge (IJ) rejected Moreno's argument for citizenship, agreeing with the CIS's decision that nothing in 8 U.S.C. § 1401(g) (INA section 301(g)) would have conferred citizenship on Moreno. The IJ also noted that 8 U.S.C. § 1433 (INA section 322) was applicable to Moreno at the time of her adoption but that it required the filing of a petition by Manuel prior to Moreno's eighteenth birthday and no such petition was ever filed.

After determining that under the undisputed facts Moreno was an alien, the IJ reviewed other evidence, including that related to her prior convictions, and then stated

"the question of whether or not the respondent should be granted the sec. 212(c) waiver as a matter of discretion will be addressed first, without regard to the respondent's eligibility and whether or not the 1994 felony conviction in the United States District Court and the 1998 [sic] conviction in New Mexico are aggravated felonies."

There follows a lengthy discussion of the evidence and matters pertaining to the exercise of section 212(c) discretion, which the IJ concludes by stating, "In the exercise of discretion, the court holds that the respondent is not entitled to a waiver of any grounds of inadmissibility." In the next section of his opinion, the IJ addresses whether Moreno's conviction of false imprisonment (contrary to New Mexico Statutes Ann.1978 § 30-4-3) was for an aggravated felony, and, citing, inter alia, United States v. Zamora, 222 F.3d 756 (10th Cir.2000), concludes that because it was a crime of violence under 18 U.S.C. § 16, it was hence an aggravated felony. The IJ's opinion concludes with his formal "findings," namely: that Moreno is an alien, not a citizen; that she "has been convicted of two crimes, both of which are aggravated felonies. The first was a drug trafficking crime and the second was a crime of violence"; that she "has served more than five years imprisonment for the first felony" and "more than one year of imprisonment for the second felony"; that "respondent ... does not warrant a grant of relief as a matter of discretion under section 212(c)"; and that "respondent is subject to removal as charged." The opinion concludes by ordering that "All relief from removal sought herein is denied" and that Moreno be removed to Mexico "for the reasons indicated in her form I-862" (the NTA).

On April 20, 2005, the BIA affirmed the decision of the IJ. The BIA essentially agreed with the IJ's analysis of Moreno's claim for citizenship, stating:

"The respondent maintains that she became a United States citizen pursuant to section 301(g) of the Act in 1980 when, at the age of 10, she was adopted by her United States citizen father. We disagree. Section 301(g) of the Act relates to individuals who acquire United States citizenship at birth; it does not provide for the acquisition of citizenship after birth, by adoption or any other means .... The respondent concedes that her biological parents were unmarried Mexican citizens at the time of her birth in Mexico in September 1971, and the administrative record does not reflect that the...