Rios-Valenzuela v. Department of Homeland Sec.

• Decision Date: 25 October 2007
• Docket Number: No. 06-50710.,06-50710.
• Citation: 506 F.3d 393
• Parties: Arturo RIOS-VALENZUELA, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

506 F.3d 393

Arturo RIOS-VALENZUELA, Plaintiff-Appellant, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants-Appellees.

No. 06-50710.

United States Court of Appeals, Fifth Circuit.

October 25, 2007.

Amanda Jane Chisholm (argued), Texas RioGrande Legal Aid, Alpine, TX, Jose Garza, Texas RioGrande Legal Aid, San Antonio, TX, for Plaintiff-Appellant.

Eduardo R. Castillo (argued), El Paso, TX, for Defendant-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Arturo Rios-Valenzuela appeals from a district court dismissal of his suit seeking a declaratory judgment that he is a citizen of the United States. We affirm.

I

Rios was born in 1956 in Mexico. He claims that his mother was unmarried to his father, and an American citizen at the time, hence she needed only to have been present in the United States for one continuous year for him to be a citizen.¹ The Government contends that Rios's parents were married Mexican citizens when he was born.

In 1975, the INS granted an application for a green card for Rios filed by his mother, and he moved to the United States. In 1989, the Government deported Rios to Mexico because of his conviction for a drug crime.

In October 2003, Rios reentered the United States by claiming to be an American citizen. On January 20, 2004, the Government issued a Notice to Appear, placing Rios in removal proceedings. The next day, the Government charged him with criminal illegal reentry. Rios claims that it was only during this period that he realized his claim to citizenship; consequently, on May 12, while the removal proceeding was pending, Rios filed a Form N-600, Application for Citizenship, with United States Citizenship and Immigration Services (USCIS). On August 13, the District Director of USCIS in El Paso denied the application. Rios appealed to the Administrative Appeals Unit (AAU). On September 17, the Government dropped the criminal charges.

On January 14, 2005, while the appeal from the first denial of the N-600 was pending, Rios filed another N-600 with the same District Director. The immigration judge presiding over the removal proceedings held a hearing on March 15, 2005. Rios defended against removal in the proceedings by submitting evidence of his citizenship. The immigration judge terminated the removal proceedings without prejudice.

On April 1, the AAU rejected Rios's appeal. On August 16, a Service Officer at the USCIS El Paso District processing the second application interviewed Rios and explained the need for evidence of his mother's presence in the United States, giving him twelve weeks to provide such evidence.

On October 21, Rios filed the instant case in district court, seeking a declaratory judgment that he is a citizen, having exhausted his administration remedies by filing the first N-600 and appealing its denial. Rios claimed he was in "legal limbo" because he was allowed to remain in the country but refused proof of citizenship. Later, on November 16, the District Director denied Rios's second application as abandoned because Rios had produced no evidence to the USCIS.

In district court, the Government moved to dismiss for lack of jurisdiction. The court granted the motion, and Rios appealed.

Subsequent to oral argument, the Government issued a new Notice to Appear, re-instituting removal proceedings against Rios. According to Rios, he has asserted his citizenship as a defense to removal and filed a Motion to Terminate or, in the alternative, a Motion to Administratively Close Removal Proceedings. A final merits hearing has not yet been held.

II

As we are reviewing a dismissal for lack of subject matter jurisdiction, our review is de novo.²

A

A person generally may pursue a citizenship claim in two ways. First, if the person is in removal proceedings he can claim citizenship as a defense. If the immigration judge rejects the defense and orders removal, the person can, after properly exhausting administrative channels, petition this court under 8 U.S.C. § 1252(b) for review of the final order of removal, including for review of the citizenship claim. However, if the immigration judge accepts the citizenship defense she terminates the removal proceedings without deciding citizenship.³

Second, a person can affirmatively seek proof of citizenship by filing with USCIS a Form N-600, Application for Citizenship, under 8 U.S.C. § 1452(a). If the application is denied, he can appeal to the AAU under 8 C.F.R. §§ 341.6, 103.3(a). If the AAU affirms,⁴ the person can seek a judicial declaration of citizenship under 8 U.S.C. § 1503(a), which provides:

If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 against the head of such department or independent agency for a judgment declaring him to be a national of the United States, except that no such action may be instituted in any case if the issue of such person's status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding.

B

When Rios initially appealed, the issue before the court was whether 8 U.S.C. § 1503(a)(1) deprived the district court of jurisdiction. However, the Government has initiated another round of removal proceedings, raising the issue of whether § 1503(a)(2) bars jurisdiction over Rios's claim. The Government argues in a letter brief filed at this court's request that, if Rios raises his citizenship as a defense in the new removal proceedings, "then the provisions of 8 U.S.C. § 1503(a)(2) clearly deprives the district court of jurisdiction over Plaintiff's claims." In his letter brief, Rios indicates that he has raised citizenship as a defense.

Section 1503(a)(2) provides that "no [declaratory judgment] action may be instituted in any case if the issue of such person's status as a national of the United States . . . is in issue in any such removal proceeding." Rios contends that the exception does not deprive the courts of jurisdiction because there were no removal proceedings pending when he filed his declaratory judgment action. We agree. The statute states that a § 1503(a) claim may not be instituted when the claimant's citizenship is in issue in a removal proceeding. The exception does not say that a purported citizen may not maintain or continue an already filed declaratory judgment action when the Government subsequently begins removal proceedings and citizenship there comes into issue. Rather, we read "institute" in this context to mean "[t]o initiate; begin."⁵ The purported citizen's citizenship cannot, logically, be "in issue in [a] removal proceeding" unless there is a removal proceeding pending. In other words, a purported citizen may not initiate or begin a declaratory judgment action to establish his citizenship if it is already being litigated in a removal proceeding. This reading of the exception does not run afoul of the concern that persons will use § 1503(a) to circumvent the administrative removal process; if there are no removal proceedings pending when a declaratory judgment action is brought, there is nothing for the claimant to circumvent.

C

We turn our attention to § 1503(a)(1). The district court noted that Rios did not file his N-600 application before the commencement of removal, "a situation where this court would have jurisdiction." It noted further, "[a]s a challenge to his removal, during those removal proceedings [Rios] claimed that he was a United States Citizen." Thus, the court concluded,

it is beyond dispute that questions as to [Rios's] citizenship arose after the initiation of removal proceeding . . . and [Rios] cannot obviate Congressional intent limiting the manner in which claims of nationality may be raised following the initiation of removal proceedings pursuant to § 1252(b)(5) by also pursuing an alternative claim of citizenship, where his claim to citizenship also arose by reason of or in connection with his removal proceedings.

Consequently, the court dismissed for lack of jurisdiction because "the issue" of Rios's citizenship "arose by reason of, or in connection with" his removal proceeding.

Rios argues that the district court's interpretation of § 1503(a)(1) as barring jurisdiction over any claim based on the denial of citizenship simply because the claim was made after the initiation of removal proceedings expands the statute beyond its plain meaning. The Government agrees that timing of the application alone does not control. What matters, the Government argues, is that the issue of citizenship arose in connection with Rios's removal proceeding.

The text of the statute supports the Government; "[t]he exception applies to claims of nationality raised in removal proceedings."⁶ It is the context of how the particular issue of citizenship arose rather than the mere timing of events that determines the applicability of § 1503(a)(1). The exception precludes jurisdiction over Rios's citizenship claim because his claim "arose by reason of, or in connection with" his removal proceeding: the issue of Rios's citizenship that forms the basis of his claim here originates, at the least, in connection with the removal proceedings.

The N-600 application process is, as Rios argues, a proceeding separate from the removal proceedings. But § 1503(a)(1) does not apply depending on whether the proceedings are separate; rather, it applies when the particular citizenship issue "arose" in the removal proceeding. That is, the exception focuses on the proceeding...