Sebastian-Soler v. U.S. Atty. Gen.

• Decision Date: 19 May 2005
• Docket Number: No. 03-12934.,03-12934.
• Citation: 409 F.3d 1280
• Parties: David SEBASTIAN-SOLER, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

409 F.3d 1280

David SEBASTIAN-SOLER, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 03-12934.

United States Court of Appeals, Eleventh Circuit.

May 19, 2005.

Matthew John Archambeault, Eduardo Rigoberto Soto, Eduardo Soto, P.A., Coral Gables, FL, for Petitioner.

David V. Bernal, Barry J. Pettinato, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and RESTANI^* Judge.

PER CURIAM:

Petitioner David Sebastian-Soler, a Cuban immigrant and resident alien, appeals his removal order issued by the Immigration Judge and summarily affirmed by the Board of Immigration Appeals. Petitioner argues that he is no alien and thus not removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Because we conclude Petitioner is an alien, we dismiss the appeal.

Background

Petitioner immigrated from Cuba to the United States in 1969, obtained permanent resident status in 1974 and applied to file for naturalization in 1987. As part of his preliminary examination he appeared in March 1988 before Immigration Officer Finnerty, acting in her capacity as an INS Designated Examiner. At this proceeding Petitioner signed a petition for naturalization¹ that included an oath affirming the truthfulness of the application's contents and Petitioner's intent to take an oath of allegiance should his application be granted. On the back of the form was the oath of allegiance for citizenship, which Petitioner also signed.² Officer Finnerty then continued Petitioner's application pending receipt of additional documents she had requested.³ The INS⁴ reviewed his application three times during the next two years and ultimately recommended it be denied because Sebastian had failed to submit all of the requested documents. In October 1990 Sebastian sent the remaining documents that Officer Finnerty had requested, and the INS recommended approval in March 1991. Along with the requested documents, Petitioner sent an updated biographical information card containing his address, which had changed since his initial application was filed.

In June 1991 the INS mailed — to his former address, the one he gave when he first applied — a notice to Petitioner informing him of the final hearing on his petition before a district court in which he was to participate and to take the oath of citizenship. Petitioner never received the notice, and it was returned to the INS. In May 1992 Petitioner began a criminal career that lasted until November 1995 and culminated in his seven-count felony conviction⁵ in May 1997. The INS twice more sent notices to Petitioner's previous address that were returned without his receiving them: one on 28 January 1993 noticing another final hearing on his petition and one on 22 September 1993 noticing a hearing before the district court to consider the INS's recommendation that his petition be denied for lack of prosecution. In December 1993 the district court denied Petitioner's application.

After Petitioner in October 1990 sent the last of the required documents to the INS to complete his application, the record indicates that he did not inquire about the status of his naturalization petition until over nine years later: in June 2000 while he was serving a 77-month sentence for his convictions. Petitioner (in December 2001 when he received documents from the INS in response to his June 2000 FOIA request) learned of the mailing error: the noncurrent address. Upon Petitioner's release in September 2002, the INS charged Petitioner under 8 U.S.C. § 1227(a)(2)(A)(iii)⁶ and initiated removal proceedings.

The IJ sustained the charge of removability, found Petitioner ineligible for relief or asylum, and ordered his removal to Cuba. On appeal the BIA summarily affirmed the IJ's decision, making it the final agency determination on the matter. Gonzalez-Oropeza v. United States Att'y Gen., 321 F.3d 1331, 1333 (11th Cir.2003). Petitioner now appeals that decision. He contends that he is not subject to removal because he is either a citizen or a national of the United States.

Standard of Review

We review de novo legal questions arising from claims of nationality. See 8 U.S.C. § 1252(b)(5) (vesting authority to decide nationality claims in courts of appeals);⁷ see also Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.2004).

Our review of final removal orders is strictly limited by 8 U.S.C. § 1252(a)(2)(C): "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)...."⁸ Where our review is limited by statutory conditions, "we retain jurisdiction to determine only whether these conditions exist." Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir.2002). Thus, if we determine that Petitioner is (1) an alien; (2) who is removable; (3) because he committed a criminal offense described in the statute, we must divest ourselves of jurisdiction to inquire further. Id. Despite this jurisdiction-stripping provision, our precedent says we also retain jurisdiction to consider substantial constitutional claims raised by Petitioner. Id. at 1273.

Discussion

Petitioner only contests one condition of his removal — that he is an alien — by arguing alternatively that he is either a duly naturalized citizen or a national of the United States. Neither argument has merit.

I. Petitioner is not a Citizen of the United States.

Petitioner first argues that he is a duly naturalized citizen of the United States. He says he is ineligible for removal, by virtue of his subscribing to the oath of allegiance during his application process coupled with the fact that the INS later recommended his naturalization petition be granted. Because Petitioner has not met the statutory requirements for naturalization, this argument fails.

The law, at the time of Petitioner's application, vested in the judicial branch exclusive jurisdiction to naturalize persons. 8 U.S.C. § 1421(a) (1988). Before a court conferred citizenship on someone, the court had to conduct an examination of the applicant that included, among other things, an investigation of the applicant's moral character. Id. §§ 1443(a); 1447(a). At the time of Petitioner's application, the United States Attorney General was authorized to conduct the required preliminary examinations for the purpose of making the appropriate recommendations to naturalization courts. Id. § 1443(a). To accomplish this examination the Attorney General named INS employees as Designated Examiners who were empowered to take testimony and administer oaths in furtherance of these examinations. Id. § 1446(b). The recommendations resulting from the examinations were to be submitted to and considered by the court in its final determination of whether or not to confer citizenship. See id. § 1446(d).

If a court decided to confer citizenship, two requirements then had to be met. First, a final hearing on the petition must be held in open court. Id. § 1447(a). Second, the petitioner must take an oath of renunciation and allegiance in open court. Id. § 1448(a). The only exception to either of these requirements — available if the petitioner "is prevented by sickness or other disability from being in open court" — is that the proceeding may be held "before a judge" in an alternate location. Id. §§ 1447(a); 1448(c) (emphasis added).

That Petitioner neither appeared before a judge for a final hearing on his petition nor took the oath of allegiance before a judge (in open court or elsewhere) is undisputed. Petitioner, nevertheless, asserts that he is a naturalized citizen, reasoning that, because the INS had at one time recommended his citizenship petition be granted and that because he had subscribed to the oath of allegiance at a preliminary examination before an INS officer, he has met all the requirements for naturalization. Petitioner specifically argues that INS Officer Finnerty was functioning as a deputy clerk of court when she administered the oath during the preliminary examination, thus satisfying the "open court" requirement. This argument fails for several reasons.

First, nothing in the record indicates that Officer Finnerty was, in fact, purporting to act as a deputy clerk of court when administering the oath to Petitioner.⁹ More important, nothing indicates Officer Finnerty was authorized by law to do so. A deputy clerk of court is an employee of the judicial branch of government. Officer Finnerty was an employee of the executive branch.

Second, even if Officer Finnerty administered the oath to Petitioner, it was not done in open court. The statute only authorized one exception to the oath's "open court" requirement: that if the petitioner was unable to appear in open court due to sickness or disability, the oath was to be taken "before a judge of the court at such place as may be designated by the court." 8 U.S.C. § 1448(c) (1988). Petitioner does not assert a disability that kept him from open court. Even if he had, the statute only excepts the locality of the oath-taking, not the manner in which it is to be taken: that is, before a "judge." The statutory language makes clear that an oath administered in an INS office by an INS officer — before the INS officer has even completed a preliminary investigation or made any recommendations — fails to fit into this lone and narrow exception.¹⁰

Third, regardless of whether the INS had at one time recommended Petitioner for citizenship or whether Petitioner had taken the oath of allegiance, the authority to confer citizenship upon Petitioner rested exclusively with the judicial branch. The district court in this case never conferred citizenship on Petitioner.

Because Petitioner has failed to meet the statutory requirements for naturalization, we readily conclude that Petitioner is no citizen of the United States.

II. Petitioner is not a National of the...