Nolos v. Holder

• Citation: 611 F.3d 279
• Decision Date: 09 July 2010
• Docket Number: No. 08-60786.,08-60786.
• Parties: Roseller Osicos NOLOS, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

611 F.3d 279

Roseller Osicos NOLOS, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 08-60786.

United States Court of Appeals Fifth Circuit.

July 9, 2010.

Roseller O. Nolos, N. Las Vegas, NV, pro se.

Joseph D. Hardy, Jr. and Claire L. Workman, Trial Attys., Tangerlia Cox, John Clifford Cunningham, I and Luis Enrique Perez, Sr. Lit. Counsels, Thomas Ward Hussey, Dir., U.S Dept. of Justice, OIL, Washington, DC, Guadalupe R. Gonzales, Imm. & Customs Enforcement, El Paso, TX, for Respondent.

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

Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge. ^*

PER CURIAM:

Roseller Osicos Nolos (“Nolos”) petitions for review of the Board of Immigration Appeal's (“BIA”) decision to uphold the immigration judge's (“IJ”) order of removal and the BIA's subsequent denial of his separate motions to reconsider and to reopen. Nolos argues that he is not removable because (1) he derives United States citizenship from his parents, who he claims acquired United States citizenship by virtue of their births in the Philippine Islands (“Philippines”) while the country was a United States territory, and (2) the Nevada theft conviction that forms the basis of the removal order does not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). For the following reasons, we DENY the petition for review.

I.

Nolos was admitted to the United States in 1983 as a lawful permanent resident. In 2003, he pleaded guilty to a theft offense pursuant to Nevada Revised Statutes § 205.0832 (2003) in Nevada state court and received a suspended prison sentence of between 18 and 48 months. In July 2006, the Department of Homeland Security (“DHS”)¹ issued an order to show cause and notice of hearing, charging that Nolos's conviction constituted an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(G) and rendered him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Nolos, proceeding pro se, admitted the DHS's allegations and conceded his removability. In August 2006, the IJ determined that Nolos was removable because his Nevada conviction constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and ordered him removed to the Philippines. Nolos timely appealed the IJ's order to the BIA. After an initial dismissal and a subsequent grant of Nolos's motion to reopen in light of newly discovered evidence, the BIA determined that not all of the subsections of Nevada Revised Statutes § 205.0832 constituted aggravated felonies and that the judgment of conviction-the record of conviction the Government submitted to prove Nolos was convicted of a theft offense-did not specify which provision of Nevada Revised Statutes § 205.0832 Nolos was convicted of violating. As a result, it vacated its initial dismissal of Nolos's appeal and remanded the case to the IJ.

On remand, the DHS submitted the Nevada information charging Nolos with theft under Nevada Revised Statutes § 205.0832. After a review of this additional material, the IJ determined that Nolos was convicted under § 205.0832(1)(b); § 205.0832(1)(b) met the requirements of theft under the Immigration and Nationality Act (“INA”); and Nolos was removable as an aggravated felon. The BIA agreed with the IJ's determination and dismissed Nolos's appeal.

Nolos filed a timely petition for review and also filed with the BIA a timely motion for reconsideration and a motion to reopen, asserting in part that he was a citizen of the United States. After the BIA's denial of those motions, Nolos filed an additional timely petition for review of this BIA decision.

II.

Although our review of a final order of removal is limited under 8 U.S.C. § 1252 Marquez-Marquez v. Gonzales, 455 F.3d 548, 553-54 (5th Cir.2006), we have jurisdiction to consider the purely legal questions of whether Nolos is a United States citizen and whether he was convicted of an aggravated felony see Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir.2006); Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.2004). We also have jurisdiction to review the BIA's denial of Nolos's motions to reopen and reconsider under 8 C.F.R. § 1003.2(b) and (c). See Kucana v. Holder, --- U.S. ----, 130 S.Ct. 827, 838-40, --- L.Ed.2d ---- (2010).

While we owe deference to the BIA's interpretation of the INA under the principles of Chevron USA, Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), our review of the legal questions posed here is de novo. See Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir.2008); Larin-Ulloa, 462 F.3d at 460-61; Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir.2005); Alwan, 388 F.3d at 510.

III.

The Government argues initially that Nolos's petition should be dismissed in part on the procedural ground that he failed to comply with 8 C.F.R. § 1003.2 because he did not present an application for relief and did not raise citizenship as a defense before the IJ. The BIA's decision, however, did not deny Nolos's motion on the ground of noncompliance with 8 C.F.R. § 1003.2. Although the BIA noted that Nolos “could and should have raised this claim during proceedings before the [IJ]” and “failed to support his claim with any evidence or to attach an application for the relief requested,” it went on to consider and reject Nolos's claim that he was a United States citizen. Against this background, we decline the Government's invitation to dismiss in part Nolos's petition on the basis of noncompliance with 8 C.F.R. § 1003.2. Accord Lopez-Dubon v. Holder, 609 F.3d 642, 2010 WL 2384010 (5th Cir.2010).

IV.

There are two sources of citizenship: birth and naturalization. Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir.2006). Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when the country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth “in the United States” under the Citizenship Clause, and thus did not give rise to United States citizenship. Lacap v. INS, 138 F.3d 518, 518-19 (3d Cir.1998); Valmonte v. INS, 136 F.3d 914, 915-21 (2d Cir.1998); Rabang v. INS, 35 F.3d 1449, 1450-54 (9th Cir.1994).² The courts of appeals explained that the term “United States” as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include “United States territories simply because the territories [were] ‘subject to the jurisdiction’ or ‘within the dominion’ of the United States.” Id. at 1453 & n. 8; see also Valmonte, 136 F.3d at 920. In reaching their holdings, the courts found guidance from the Supreme Court's Insular Cases jurisprudence on the territorial scope of the term “the United States” as used in the Citizenship Clause of the Fourteenth Amendment. Valmonte, 136 F.3d at 918-19 ; Rabang, 35 F.3d at 1452. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puerto Rico to the United States mainland. Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at 918.

In Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901), one of the Insular Cases, “[t]he Court held that Puerto Rico was ‘not a part of the United States within the revenue clauses of the Constitution.’ ” Id. at 287, 21 S.Ct. 770. The Court reached this conclusion by considering the territorial scope of the term “the United States” in various clauses of the Constitution. Valmonte, 136 F.3d at 918 ;Rabang, 35 F.3d at 1452-53 (citing Downes, 182 U.S. at 251). The Court compared the revenue clause language “all duties ... shall be uniform throughout the United States,” United States Constitution, art. I, § 8, with the Thirteenth Amendment's prohibition of slavery and involuntary servitude “within the United States or any place subject to their jurisdiction,” id. amend. XIII, § 1 (emphasis added), and that of the Citizenship Clause of the Fourteenth Amendment providing that persons “born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” id. amend. XIV, § 1 (emphasis added). See Downes, 182 U.S. at 251 (cited in Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at 918). The Court then concluded that the disjunctive “or” in the Thirteenth Amendment showed that “there may be places within the jurisdiction of the United States that are no part of the Union” to which the Thirteenth Amendment would still apply, while citizenship under the Fourteenth Amendment “is not extended to persons born in any place ‘subject to [the United States'] jurisdiction’ ” (but instead limited to those born or naturalized in the states of the Union). Id.See Rabang, 35 F.3d at 1452-53 (discussing Downes, 182 U.S. at 251); Valmonte, 136 F.3d at 919 (discussing Downes, 182 U.S. at 251).

Relying on Downes, the Rabang and Valmonte courts observed that “[l]ike the revenue clauses, the Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty.” Rabang, 35 F.3d at 1453 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 291 n. 11, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (Brennan, J., dissenting)); see also Valmonte, 136 F.3d at 918-19. The courts of appeals further noted the Court's subsequent statement that “ ‘in dealing with foreign sovereignties, the term “United States” has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal government, wherever located.’ ” Rabang, 35 F.3d at 1453 (quoting Downes, 182 U.S. at 263); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263). They observed that “[i]n other words, as used in ...