Thomas v. Lynch

• Decision Date: 07 August 2015
• Docket Number: No. 14–60297.,14–60297.
• Citation: 796 F.3d 535
• Parties: Jermaine Amani THOMAS, also known as Jermaine Thomas, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

796 F.3d 535

Jermaine Amani THOMAS, also known as Jermaine Thomas, Petitioner

v.Loretta LYNCH, U.S. Attorney General, Respondent.

No. 14–60297.

United States Court of Appeals, Fifth Circuit.

Aug. 7, 2015.

Charlotte Anne Herring (argued), Houston, TX, for Petitioner.

Daniel Eric Goldman, Senior Litigation Counsel (argued), Tangerlia Cox, Jeffrey Ronald Meyer, Esq., for Respondent.

Bruce Patrick Bower, Esq., Austin, TX, for Amicus Curiae.

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

Before KING, SMITH, and ELROD, Circuit Judges.

Opinion

KING, Circuit Judge:

Jermaine Amani Thomas petitions for review of an order that he be removed from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii). Thomas, who was born on a United States military base located in what is now Germany, argues that he is not removable because he is a United States citizen by virtue of the Fourteenth Amendment. For the following reasons, we DENY the petition for review.

I. BACKGROUND

Petitioner Jermaine Amani Thomas was born on August 9, 1986, in a military hospital located on a U.S. military base in Frankfurt, Germany. Thomas's father, a United States citizen, was a member of the United States military serving on the base.

Thomas's father first entered the United States in September 1977, enlisted in the United States Army in 1979, and became a United States citizen in May 1984. Thomas's mother was a citizen of Kenya. Thomas was admitted to the United States as a lawful permanent resident in July 1989. His visa form listed his nationality as Jamaican.

In 2013, the Department of Homeland Security issued Thomas a Notice to Appear and Additional Charges of Inadmissibility/Deportability. The Additional Charges notice alleged that Thomas was a citizen of Jamaica and had three criminal convictions in the United States. It also stated that Thomas was subject to deportation or removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony; 8 U.S.C. § 1227(a)(2)(E)(i) because he had been convicted of a crime of domestic violence; and 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two or more crimes involving moral turpitude.

At a hearing before an Immigration Judge (“IJ”) on December 12, 2013, Thomas conceded that, if he is not a United States citizen, he is removable based on his aggravated felony and domestic violence convictions. The only relief sought by Thomas before the IJ was a declaration that he is a United States citizen and the termination of removal proceedings. The IJ found that Thomas's birth in Germany gave rise to a rebuttable presumption of alienage. The IJ determined that based on the Department of State Foreign Affairs Manual (FAM), as well as the plain language of 8 U.S.C. § 1401(a) and the Constitution, the military base on which Thomas was born was not part of the United States for purposes of the Fourteenth Amendment. Accordingly, the IJ concluded that Thomas had failed to rebut the presumption of alienage. The IJ further found that Thomas was a citizen of Jamaica, and designated Jamaica as the country for removal. Finally, the IJ ordered Thomas removed pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii).

Thomas appealed the IJ's order to the Board of Immigration Appeals (the “BIA”). The BIA agreed with the IJ that Thomas's birth at the military hospital in Germany, to only one United States citizen parent, gave rise to a rebuttable presumption of alienage. The BIA rejected Thomas's claim that his birth on a military base in Germany rendered him a birthright citizen by virtue of the Fourteenth Amendment. Therefore, the BIA concluded that Thomas was removable and it dismissed the appeal. On April 22, 2014, Thomas filed a timely petition for review in this court.

II. STANDARD OF REVIEW

Generally, this court does not have jurisdiction to review a final order of removal entered against an alien who has been convicted of certain offenses, including aggravated felonies, or who has multiple convictions for crimes involving moral turpitude. 8 U.S.C. § 1252(a)(2)(C) ; see Ogunfuye v. Holder, 610 F.3d 303, 307 (5th Cir.2010) (explaining that this court is stripped “of jurisdiction to review a final order of removal entered against an alien convicted of certain criminal offenses, including aggravated felonies”). However, in such cases, this court retains jurisdiction to review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D) ; see Marquez–Marquez v. Gonzales, 455 F.3d 548, 560–61 (5th Cir.2006). If a “petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.” 8 U.S.C. § 1252(b)(5)(A).

Thomas's constitutional claim is afforded de novo review. Danso v. Gonzales, 489 F.3d 709, 712 (5th Cir.2007).

III. DISCUSSION

This case requires us to determine whether a United States military base located within what is now Germany was “in the United States” for purposes of the Fourteenth Amendment. The answer to this question is decisive because the Fourteenth Amendment grants birthright citizenship to “[a]ll persons born ... in the United States, and subject to the jurisdiction thereof.” U.S. Const. amend. XIV, § 1 ; see also Schneider v. Rusk, 377 U.S. 163, 166, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (explaining that “the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment”). If Thomas derived birthright citizenship from the Fourteenth Amendment, we must grant his petition for review because only aliens can be deported. See 8 U.S.C. § 1227(a). If he is in fact not a citizen, the petition for review must be denied because it is undisputed that he is otherwise deportable as an aggravated felon. See 8 U.S.C. § 1227(a)(2)(A)(iii). After a careful review of the decisions of the Supreme Court, other circuit courts of appeals, and our own court, we hold that Thomas is not a citizen, because the United States military base where he was born, which is located in modern-day Germany, was not “in the United States” for purposes of the Fourteenth Amendment.

“There are two sources of citizenship, and two only: birth and naturalization.” Bustamante–Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir.2006) (internal quotation marks omitted). “Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.’ ” Miller v. Albright, 523 U.S. 420, 423–24, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702, 18 S.Ct. 456, 42 L.Ed. 890 (1898) ). “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” Id. At the time of Thomas's birth, Congress extended birthright citizenship to children born abroad to one citizen parent and one alien parent, as long as the citizen parent met certain physical-presence requirements. See 8 U.S.C. § 1401(g) (1982), amended by Pub.L. No. 99–653, § 12, 100 Stat. 3655, 3657 (Nov. 14, 1986). Thomas was born on a United States military base located within the territorial boundaries of modern-day Germany. His father was a naturalized United States citizen serving in the United States military and his mother was an alien. However, it is undisputed that Thomas was not a statutory birthright citizen because his father did not meet the physical presence requirement of the statute in force at the time of Thomas's birth.¹ Id. Consequently, Thomas must rely on the Fourteenth Amendment, which provides, in relevant part, that “[a]ll persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” U.S. Const. amend. XIV, § 1, to sustain his claim that he is a birthright citizen. Thomas contends that the military base located in modern-day Germany where he was born was “in the United States” for purposes of the Fourteenth Amendment. We disagree.

We have not previously decided whether a military base located abroad qualifies as “in the United States” for Fourteenth Amendment purposes. However, we have addressed whether a person derived United States citizenship from his parents, who he claimed “became United States citizens at birth because they were born in the Philippines when the country was a United States territory.” Nolos v. Holder, 611 F.3d 279, 282 (5th Cir.2010) (per curiam). In that case, we were required to determine whether the Philippines was “in the United States” for Fourteenth Amendment purposes. Id. at 282. For guidance, we looked to the Second, Third and Ninth Circuits, which had previously “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.” Id. (citing 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 Underlying those circuits' conclusion was the recognition that “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. (internal quotation marks and brackets omitted).

“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.”Id. (citing Valmonte, 136 F.3d at 918–19 ; Rabang, 35 F.3d at 1452 ).³ In the Insular Cases , the Supreme Court “created the...