Perdomo-Padilla v. Ashcroft

• Decision Date: 23 June 2003
• Docket Number: No. 01-71454.,01-71454.
• Parties: Jose Luis PERDOMO-PADILLA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.3d 964

Jose Luis PERDOMO-PADILLA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 01-71454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2003.

Filed June 23, 2003.

Kathryn M. Davis and Ulrike I. Boehm, Latham & Watkins, Los Angeles, CA, for the petitioner; Jose Luis Perdomo-Padilla, petitioner pro se.

Mary Jane Candaux, Office of Immigration Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A37-801-426.

Before SCHROEDER, Chief Judge, and THOMPSON, and GRABER, Circuit Judges.

GRABER, Circuit Judge.

Petitioner Jose Luis Perdomo Padilla, a citizen of Mexico, was convicted of conspiracy to distribute marijuana. The Immigration and Naturalization Service ("INS") instituted removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of an alien who has been convicted of an aggravated felony. Arguing that he is a "national of the United States" within the meaning of 8 U.S.C. § 1101(a)(22) because he completed an application for naturalization containing a statement of allegiance to the United States, Petitioner appeals the Board of Immigration Appeals' ("BIA") decision ordering his removal. We hold that the filing of an application for naturalization does not change an applicant's immigration status from that of an alien to that of a national because, under the Immigration and Nationality Act ("INA"), a person may become a "national of the United States" only through birth or naturalization.¹ Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, a Mexican citizen, entered the United States through the Port of Entry in San Ysidro, California, and became a legal permanent resident of the United States in October 1982. Petitioner married another legal permanent resident and had four children, all of whom are citizens of the United States.

On July 26, 1997, Petitioner filed an application for naturalization. The application contained the following questions, to which Petitioner answered "yes":

1. Do you believe in the Constitution and form of government of the U.S.?

2. Are you willing to take the full Oath of Allegiance to the U.S.?

3. If the law requires it, are you willing to bear arms on behalf of the U.S.?

4. If the law requires it, are you willing to perform noncombatant services in the Armed Forces of the U.S.?

5. If the law requires it, are you willing to perform work of national importance under civilian direction?

In January 1999, Petitioner was arrested in California and charged with possession with intent to distribute marijuana. Petitioner pleaded guilty to one count of conspiracy to distribute marijuana.

In January 2001, the INS initiated removal proceedings against Petitioner. He appeared before an immigration judge ("IJ") hearing, and the IJ found that Petitioner was removable because he was an alien and had been convicted of an aggravated felony. The IJ also found that Petitioner was ineligible for relief from deportation.

Shortly after the IJ's decision issued, we decided Hughes v. Ashcroft, 255 F.3d 752 (9th Cir.2001). Petitioner argued before the BIA that, in light of Hughes, he was a national of the United States and thus not an alien subject to removal for commission of an aggravated felony. (He conceded that he stood convicted of an aggravated felony.) The BIA rejected Petitioner's argument and affirmed the IJ's decision. Petitioner now appeals the BIA's decision.

STANDARD OF REVIEW

Under 8 U.S.C. § 1252(b)(5), we review Petitioner's claim that he is a national of the United States and determine whether there is a genuine issue of material fact. Hughes, 255 F.3d at 755. If we conclude that there is not, we must decide Petitioner's claim; if we conclude that there is a genuine issue of material fact, we must transfer the case to the district court for a hearing. Id. at 755 & n. 1.² We review de novo the legal questions arising from Petitioner's claim that he is a national of the United States. Id. at 755.

DISCUSSION

Petitioner argues that he is not an "alien" subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of an alien who has been convicted of an aggravated felony. "Alien" is defined in 8 U.S.C. § 1101(a)(3) as "any person not a citizen or national of the United States." Title 8 U.S.C. § 1101(a)(22) defines "national of the United States" as "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." Petitioner argues that he is a "national of the United States" within the meaning of § 1101(a)(22)(B) because he completed an application for naturalization that contained a statement of allegiance to the United States. In light of the historical meaning of "national" and the text and context of § 1101(a)(22), we reject Petitioner's proposed interpretation of the statute. Instead, we hold that, under the INA, a person may become a national of the United States only through birth or naturalization.

A. The BIA's Interpretation of the Statute

In In re Navas-Acosta, 23 I. & N. Dec. 586, 586-87, 2003 WL 1986475 (2003), the BIA addressed whether an alien had become a national of the United States by signing a statement of allegiance to the United States as part of his application for naturalization. The BIA held that the alien was not a national but remained an alien because "nationality under the [INA] may be acquired only through birth or naturalization." Id. at 588.

The government argues that the BIA's interpretation of the statute is entitled to Chevron deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (explaining circumstances meriting deference to an agency's interpretation of a statute). The government directs our attention to INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), in which the Supreme Court held that the Ninth Circuit should have granted Chevron deference to the BIA's interpretation of a provision of the INA that the BIA is expressly charged with administering.

With respect to the particular statutory provision at issue here, however, the BIA's interpretation is not entitled to deference. In Hughes, we held that Congress did not grant discretion to the BIA to decide questions of law related to nationality. 255 F.3d at 757-58. We relied on 8 U.S.C. § 1252(b)(5)³ for the proposition that "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." Id. at 758. Further, we noted that "[t]he review that we have conducted in past cases also illustrates that issues of law pertaining to nationality are for the court." Id. (discussing Scales v. INS, 232 F.3d 1159, 1162-63 (9th Cir.2000)). Accordingly, Hughes directly refutes the government's argument that Chevron deference must be granted to the BIA's interpretation of 8 U.S.C. § 1101(a)(22).

B. Traditional Meaning of "National of the United States"

All citizens of the United States are also nationals. However, some nationals are not citizens. Traditionally, only persons born in territories of the United States were non-citizen nationals. Cabebe v. Acheson, 183 F.2d 795, 797 (9th Cir.1950). As Justice Ginsburg recently explained:

Nationality and citizenship are not entirely synonymous; one can be a national of the United States and yet not a citizen. 8 U.S.C. § 1101(a)(22). The distinction has little practical impact today, however, for the only remaining noncitizen nationals are residents of American Samoa and Swains Island.

Miller v. Albright, 523 U.S. 420, 467 n. 2, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (Ginsburg, J., dissenting); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 90 n. 1, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) (noting that Civil Service Commission regulations construed "nationals" "who owe permanent allegiance to the United States" to cover only natives of American Samoa (citing 5 C.F.R. § 338.101 (1976))).

This court, too, has explained that non-citizen nationality has traditionally been limited to people who were born in territories of the United States: "The term `national' came into popular use in this country when the United States acquired territories outside its continental limits, and was used in reference to noncitizen inhabitants of those territories." Rabang v. INS, 35 F.3d 1449, 1452 n. 5 (9th Cir.1994); see also United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir.1997) (quoting Rabang for the same principle).

Further, we have suggested that nationality may be acquired only through birth or completion of the entire naturalization process and have made no provision for a third route to nationality, such as through completion of an application for naturalization: "United States nationality depends primarily upon the place of birth, the common law principle of jus soli having been embodied in the Fourteenth Amendment of the Constitution of the United States. Nationality may also be acquired by naturalization and lost by expatriation." Cabebe, 183 F.2d at 797. Similarly, we have noted that, "[a]lthough we have not definitively defined the term national, we have suggested a person attains national status primarily through birth." Sotelo, 109 F.3d at 1448.

Other courts of appeals have also characterized non-citizen nationals as those born in territories of the United States. The Second Circuit has explained:

The term nationals came into use in this country when the United States acquired territories outside its continental limits whose inhabitants were not at first given full political equality with citizens. Yet they were deemed to owe permanent allegiance to the United States and were entitled to our...