Minasyan v. Gonzales

• Citation: 401 F.3d 1069
• Decision Date: 22 March 2005
• Docket Number: No. 02-73556.,02-73556.
• Parties: Alfred MINASYAN, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

401 F.3d 1069

Alfred MINASYAN, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 02-73556.

United States Court of Appeals, Ninth Circuit.

Submitted December 7, 2004.^**

Filed March 22, 2005.

COPYRIGHT MATERIAL OMITTED

Houman Varzandeh, Zaman & Varzandeh, Los Angeles, CA, for the petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division; Linda S. Wendtland, Assistant Director; and Elizabeth J. Stevens, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: REINHARDT, HALL, and WARDLAW, Circuit Judges.

REINHARDT, Circuit Judge:

Alfred Minasyan, a native of Armenia, petitions for review of a per curiam order of the Board of Immigration Appeals ("BIA"). The BIA affirmed the decision of the immigration judge ("IJ"), denying Minasyan's applications for withholding of removal and protection under the Convention Against Torture ("CAT"). The BIA also found that Minasyan had not demonstrated eligibility for derivative citizenship under a now defunct provision of the Immigration and Nationality Act ("INA"), § 321(a)(3), 8 U.S.C. § 1432(a)(3) (1999), repealed by Pub.L. 106-395, Title I, § 103(a), Oct. 30, 2000, 114 Stat. 1632.¹ We conclude that Minasyan is a derivative citizen of the United States pursuant to that provision, and is thus not subject to removal as a felon convicted of an aggravated offense.

I.

Minasyan, now twenty-five years old, first entered the United States with his family when he was eight, as a refugee from Armenia. He obtained lawful permanent resident status when he was ten. In October 1993, when he was fourteen, Minasyan's parents separated and his mother assumed sole custody of him. In December 1994, his mother became a United States citizen through naturalization.²

Shortly after his eighteenth birthday, in October 1997, Minasyan was arrested on charges of first degree burglary and attempted first degree burglary. He pleaded guilty to both crimes and was sentenced to two years in state prison.³ Because of this conviction, the Immigration and Naturalization Service ("INS")⁴ initiated removal proceedings. During the proceedings, Minasyan raised a claim of derivative citizenship on the basis of his mother's naturalization. The Immigration Judge denied the claim on April 30, 1999, and on February 26, 2000, Minasyan was removed to Armenia.

On April 19, 1999, just before the IJ ordered Minasyan removed, Minasyan's mother filed an action for the dissolution of her marriage. In April of 2001, the Los Angeles Superior Court filed an order granting the dissolution, to be effective in October 2001. The stipulated judgment issued by the court declared that Minasyan's parents had separated on October 1, 1993, and that his mother maintained sole legal custody of him from that date on. No one contests the accuracy of the factual findings or legal determinations contained in the court order.

Minasyan reentered the United States on a visitor's visa around the end of January 2001. In May 2001, the INS issued a notice of intent to reinstate the prior removal order. In response, Minasyan again asserted his citizenship claim, while also contending that he would be persecuted or tortured if he were returned to Armenia. The INS Citizenship Unit reviewed his file and found that although Minasyan "may have been in the legal custody of his mother at the time of her naturalization, no evidence has been provided to show that his parents' marital separation had been recognized by a court of law." The agency then scheduled a hearing before an IJ to adjudicate his persecution and torture claims.

Before the IJ, Minasyan renewed his claim to derivative citizenship. He relied not only on the 2001 dissolution decree entered by the Los Angeles Superior Court, but on a subsequent nunc pro tunc judgment of that court confirming that his parents were legally separated on October 1, 1993. On the basis of the dissolution decree and the nunc pro tunc order, the IJ concluded that "the respondent has made out a prima facie claim to derivative United States citizenship through his United States citizen mother." She directed Minasyan to file a N-600 form ("Application for Certificate of Citizenship") and ordered the INS to adjudicate that application. The IJ explained that "if the applicant is not an `alien' the court lacks jurisdiction to proceed and conduct a withholding only hearing." On March 12, the District Director denied Minasyan's citizenship application and informed Minasyan of his right to appeal.⁵

The IJ proceeded with the hearing, but declined to consider Minasyan's claim to citizenship. She explained that because the Citizenship Unit had denied his application, "any judicial interference or decision would have to come from the federal courts and not from the Immigration Court because we do not have authority to declare the respondent a citizen of the United States." The IJ ruled against Minasyan on the merits of his withholding and CAT claims.⁶

On appeal, the BIA affirmed, concluding that Minasyan had not demonstrated "that he derived United States citizenship under former section 321(a)(3) of the Act."⁷ It also upheld the IJ's decision that Minasyan was ineligible for withholding of removal and protection under CAT. Minasyan seeks review only of the determination that he is not a United States citizen.

II.

We do not have jurisdiction to review a criminal alien's final order of removal. 8 U.S.C. § 1252(a)(2)(C). However, where, as here, a petitioner claims that he is a United States citizen and that he is therefore not subject to removal, we have jurisdiction to determine his nationality claim. 8 U.S.C. § 1252(b)(5)(A); see also Barthelemy v. Ashcroft, 329 F.3d 1062, 1064 (9th Cir.2003).⁸ We review the legal questions involved in Minasyan's claim de novo. Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966 (9th Cir.2003); Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir.2001). Because "the INA explicitly places the determination of nationality claims solely in the hands of the courts of appeals and (if there are questions of fact to resolve) the district courts," we are not required to give Chevron deference to the agency's interpretation of the citizenship laws. Hughes, 255 F.3d at 758 (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Minasyan argues that he is a derivative citizen pursuant to § 321(a) of the INA because his parents were legally separated and he was in the sole custody of his mother and under the age of eighteen when she was naturalized. In response, the government contends that this court does not have jurisdiction to consider Minasyan's citizenship claim because he failed to exhaust all available administrative remedies; specifically, he failed to appeal the decision of the District Director to the Administrative Appeals Unit. In the alternative, the government argues that Minasyan is not a derivative citizen by virtue of his mother's naturalization because he has not established that his parents were legally separated before his eighteenth birthday. We reject both of these arguments and conclude that Minasyan meets the requirements of citizenship as set forth in former § 321(a).

1. Exhaustion

For a court to review a final order of removal an alien must typically exhaust all administrative remedies available to the alien as of right. 8 U.S.C. § 1252(d)(1); see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that § 1252 "generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below"). However, a claim to citizenship need not be exhausted. Rivera v. Ashcroft, 394 F.3d 1129 (9th Cir.2005).⁹ As we explained in Rivera:

The executive may deport certain aliens but has no authority to deport citizens. An assertion of U.S. "citizenship is thus a denial of an essential jurisdiction fact" in a deportation proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922); see also Frank v. Rogers, 253 F.2d 889, 890 (D.C.Cir.1958) ("Until the claim of citizenship is resolved, the propriety of the entire proceeding is in doubt.").

Id. at 1136. As in Rivera, if the government's argument that exhaustion is required were correct, "it would be possible to unintentionally relinquish U.S. citizenship.... The Constitution does not permit American citizenship to be so easily shed." Id. Thus, "[t]he statutory administrative exhaustion requirement of § 1252(d)(1) does not apply" to "a person with a non-frivolous claim to U.S. citizenship" even if he has previously been (illegally) deported by the government. Id. at 1140. See also Moussa v. INS, 302 F.3d 823, 825 (8th Cir.2002) (holding that the exhaustion requirement of § 1252(d)(1) applies "only to an `alien'" "challenging a final order of removal" and not to "`any person.'"). Because 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.

2. Derivative Citizenship

Citizenship for one not born in the United States may be acquired "only as provided by Acts of Congress." Miller v. Albright, 523 U.S. 420, 424, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998). Since the enactment of the first naturalization statute in 1790, our immigration laws have conferred derivative citizenship on the children of a naturalized citizen, provided certain statutorily prescribed conditions are met. See Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 98.03[1]-[2] (2004) (hereinafter Immigration Law); INS Interp. § 320.1(a)(1).¹⁰ As with all forms of citizenship, derivative citizenship is determined under the law in effect at time the critical events giving rise to...