Theagene v. Gonzales

• Decision Date: 15 June 2005
• Docket Number: No. 02-71224.,02-71224.
• Parties: Elysee THEAGENE, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.3d 1107

Elysee THEAGENE, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 02-71224.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 2003.

Filed June 15, 2005.

COPYRIGHT MATERIAL OMITTED

Jaime Jasso, Esq., California Alien Rights Project, for petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Richard M. Evans, Assistant Director, Michelle R. Slack, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A31-121-648.

Before: KLEINFELD and WARDLAW, Circuit Judges, and POGUE,^** International Trade Judge.

POGUE, International Trade Judge.

Elysee Theagene petitions the court for review of the Board of Immigration Appeals' final order of removal, arguing that (1) he is a citizen of the United States; (2) the BIA erred in granting a motion to reconsider its own decision that he was eligible for withholding of deportation; (3) the BIA erred in applying an intervening en banc decision to Petitioner's case on reconsideration; and (4) the BIA incorrectly applied the holding in that intervening decision to Petitioner's case. In a memorandum disposition filed August 27, 2003, we found that we lacked jurisdiction over the nationality claim because the claim had not been raised during the administrative proceedings. We also held that the remaining claims lacked merit. Theagene filed a petition for rehearing raising substantial questions regarding our jurisdiction to hear his nationality claim. We granted the petition, and, after briefing by both parties, we conclude that we have jurisdiction to review Theagene's nationality claim. However, because service in the armed forces is not itself sufficient to ground a claim for nationality, and because Theagene's other claims also lack merit, we deny the petition for review.

I. Background

Theagene is a native of Haiti who was admitted to the United States in April 1974, when he was six years old, as a lawful permanent resident. He never applied for naturalization as a United States citizen, but served in the United States Navy between 1989 and 1993 and participated in combat operations during the first Gulf War. He was honorably discharged from the service. Theagene has not returned to Haiti since his arrival in the United States, does not speak French or Creole, and has no relatives in Haiti.

In November 1998, Theagene was convicted of first degree residential burglary in California, in violation of California Penal Code § 459(a), and sentenced to imprisonment for a term of four years. Two years later, the INS initiated proceedings to remove Theagene from the United States. The proceedings were initiated pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for the removal of "[a]ny alien who is convicted of an aggravated felony at any time after admission" into the United States. On November 22, 2000, an Immigration Judge ("IJ") found Theagene removable under § 1227(a)(2)(A)(iii) as a result of his burglary conviction.¹ Theagene appealed the decision of the IJ to the Board of Immigration Appeals ("BIA" or "Board").² The Board affirmed the IJ's finding that Theagene is removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Theagene argues that (1) he is a United States national and therefore not subject to removal; (2) the BIA erred by reversing its decision upon a motion to reconsider; (3) the BIA erred in granting the motion to reconsider because the motion was legally deficient; (4) the BIA erred by failing to offer Petitioner opportunity for rebuttal; (5) the BIA erred by failing to specifically notify Petitioner that it would apply an intervening change in applicable law to his case upon reconsideration; and (6) the decision of the BIA in Matter of J-E did not compel reversal of the BIA's original decision in Petitioner's case. In a memorandum disposition filed August 27, 2003, we found that we lacked jurisdiction over the nationality claim because it had not been raised during the administrative proceedings. Theagene v. Ashcroft, Court No. 02-71224 at 2 (Aug. 27, 2003) (unpublished). We then found that the remaining claims lacked merit. Id. at 2-5.

II. Theagene's Nationality Claim

A.

In our prior memorandum disposition, we relied on 8 U.S.C. § 1252(d)(1) (2000)³ to hold that Theagene's nationality claim failed because, while Theagene had appealed his order of removal to the Board, he had not raised his nationality claim before the Board. Theagene v. Ashcroft, Court No. 02-71224 at 2 n. 1 (Aug. 27, 2003) (unpublished). On petition for rehearing, Theagene alerts us to the tension that exists between § 1252(d)(1) and a second provision specifically providing for judicial review of nationality claims. That second provision, 8 U.S.C. § 1252(b)(5), provides that where an order of removal is entered against a petitioner, and "[i]f the petitioner claims to be a national of the United States," the federal courts shall decide the claim. 8 U.S.C. § 1252(b)(5). Moreover, § 1252(b)(5) provides that "[t]he petitioner may have such nationality claim decided only as provided in this paragraph." Id. Because only an "alien" may be required to exhaust administrative remedies under § 1252(d)(1), the plain language of § 1252(b)(5) requires that upon a petition for review of the BIA's final order of removal, we must evaluate a petitioner's claim to United States nationality regardless of whether the claim was raised below.⁴

Theagene here makes a claim of United States nationality. If Theagene is, as he claims, actually a United States citizen, the immigration laws, including their requirement of administrative exhaustion, do not apply to him. The wording of the two statutes reflects this understanding; whereas 8 U.S.C. § 1252(a)(5) uses the neutral term "petitioner," the terms of 8 U.S.C. § 1252(d)(1) apply only to an "alien." This reading has been explicitly adopted by at least one other circuit. In Moussa v. INS, 302 F.3d 823 (8th Cir.2002), the Eighth Circuit rejected the government's argument that the jurisdictional nature of 8 U.S.C. § 1252(d)(1) precluded the court from considering petitioner's nationality claim. As the court held, "we necessarily have jurisdiction to determine our jurisdiction, and the exhaustion provisions of § 1252(d)(1) do not apply to `any person' challenging a final order of removal, only to an `alien,' — precisely what [petitioner] claims not to be." Id. at 825 (internal citation omitted).

Moreover, Moussa relies on a decision of our Circuit. See Moussa, 302 F.3d at 825(citing Hughes v. Ashcroft, 255 F.3d 752 (9th Cir.2001)). In Hughes, we held that despite the requirement of exhaustion, we retain "jurisdiction to review Petitioner's claim that he is a United States national or citizen and thus not `an alien' subject to removal." Hughes, 255 F.3d at 755.⁵ Therefore, we hold that we have jurisdiction to entertain Theagene's nationality claim, and must in fact entertain that claim before § 1252(d)(1) can be applied.

B.

Theagene claims United States nationality based on his service in the United States military during the first Gulf War. We have held that service in the armed forces is not itself sufficient to ground a claim for nationality. See Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938 (9th Cir.2004) (holding that "service in the armed forces of the United States, along with the taking of the standard military oath, does not alter an alien's status to that of a `national' within the meaning of the Immigration and Nationality Act"). Neither party claims that there are disputed issues of material fact with regard to Theagene's nationality claim, and we find none in the record. Accordingly, we consider only Theagene's legal argument. See 8 U.S.C. § 1252(b)(5)(A). Thus, it would appear that Theagene has no persuasive claim to United States nationality.

III. The BIA's grant of the motion to reconsider

Theagene argues that the Board erred in granting the government's motion to reconsider its ruling on Theagene's Convention Against Torture claim. The government's motion to reconsider properly stated a perceived error in law that the Board committed in reversing the immigration judge. As such, the Board acted within its discretion in granting the motion to reconsider. 8 C.F.R. § 1003.2(a), 1003.2(b)(1).

IV. Application of an intervening BIA decision to Petitioner's case

Citing our decision in Gonzalez v. INS, 82 F.3d 903(9th Cir.1996), Theagene argues that the Board violated his right to due process by applying an intervening en banc decision of the Board without providing him with notice and an opportunity to respond. We cannot agree. Gonzalez and Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), upon which Gonzalez relied, involved the Board's decision to take administrative notice of facts that bore on whether an alien was deportable. In Gonzalez and Castillo-Villagra, we concluded that the Board's decision to make legal judgments on the basis of facts of which the Board took administrative notice violated an alien's right to due process where the Board failed to give the alien an opportunity to respond. Gonzalez, 82 F.3d at 911-12; Castillo-Villagra, 972 F.2d at 1028-29. However, Theagene cites no authority for the proposition that an alien's right to due process is similarly violated when the Board applies controlling legal authority to a pending case without informing the alien or providing an opportunity to respond.

The Board's decision to apply legal principles from intervening case law is of a different character than the Board's decision to draw legal conclusions from facts introduced through administrative notice. In the latter, the violation of due process stemmed from depriving the alien of notice and an opportunity to respond to the Board's legal conclusion through the introduction of other facts. See Gonzalez, 82 F.3d at...