Abiodun v. Immigration & Nat. ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 26, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B EN A D A BIO D U N ,
Petitioner,
v. No. 06-9527
(No. A 073 764 249)
ALBERTO R. GONZA LES, (Petition for Review)
United States A ttorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.
This pro se petition for review, initiated in the district court as a petition
for habeas relief and later transferred here pursuant to the Real ID Act of 2005,
challenges “the denial of [Petitioner’s] statutory right to naturalization, [and] his
continued detention and deportation order.” Pet. Br. at 2. As explained below ,
we dismiss the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
B ACKGROUND 1
Petitioner Benad Abiodun is a native and citizen of Nigeria.
Administrative Record (A.R.) at 16. In 1996, he entered this country and became
a lawful permanent resident after marrying a United States citizen. Id. at 45, 72,
145. In January 2001, M r. Abiodun applied for naturalization, and in A ugust
2001, he underw ent examination. Id. at 195.
But in M ay 2002, while his application was still pending, M r. Abiodun was
convicted in Colorado state court of, among other things, two counts of
distributing a controlled substance, and was sentenced to four years in prison.
2
Id. at 18, 313-14. The former Immigration and Naturalization Service (INS)
soon began removal proceedings against him, citing the aggravated-felony
provisions of the Immigration and Nationality Act. 3 Id. at 397.
1
An exhaustive background of this case can be found in this court’s prior
published opinion resolving M r. A biodun’s initial petition for review. See
Abiodun v. Gonzales, 461 F.3d 1210, 1212-14 (10th Cir. 2006). W e set forth here
only those background facts necessary to resolve the instant petition.
2
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, 2205 (2002), the INS has ceased to exist as an agency within the
Department of Justice, and its enforcement functions have been transferred to the
Department of Homeland Security.
3
See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an
aggravated felony at any time after admission is deportable.”);
id. § 1101(a)(43)(B) (defining “aggravated felony” to include “illicit trafficking
in a controlled substance”).
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In October 2004, the Bureau of Citizenship and Immigration Services
(BCIS) denied M r. Abiodun’s naturalization application, concluding that because
of his convictions, he lacked good moral character. Id. at 293-94. M r. Abiodun
was paroled from prison approximately two months later and was taken into
custody by immigration authorities. Id. at 165, 280, 381. In M arch 2005,
M r. Abiodun filed a habeas petition in federal district court, seeking release from
custody and reversal of the decision denying naturalization.
In M ay 2005, following several hearings, an Immigration Judge found
M r. Abiodun deportable as an aggravated felon, and ordered him removed to
Nigeria. Id. at 208-09. The Board of Immigration Appeals (BIA) subsequently
dismissed his appeal from that order. Id. at 2. M r. Abiodun then petitioned this
court for review, Abiodun v. Gonzales, No. 05-9585 (filed Sept. 29, 2005), and
later filed another petition in this court after the BIA declined to reopen his case
and to reconsider the dismissal order, Abiodun v. Gonzales, No. 05-9603 (filed
Dec. 22, 2005). After consolidating the petitions, this court affirmed the B IA’s
decisions in a published opinion, Abiodun v. Gonzales, 461 F.3d 1210 (10th Cir.
2006).
In M arch 2006, the district court (1) dismissed M r. Abiodun’s habeas
petition to the extent he challenged the denial of his naturalization application;
and (2) transferred to this court the remainder of the petition, which, according to
the district court, had become a challenge to the removal order. Abiodun v.
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M aurer, No. 05-cv-352-W DM -PA C, at 3-4 (Order of M ar. 2, 2006). W e treated
the transferred habeas petition as a petition for review of the removal order. See
Schmitt v. M aurer, 451 F.3d 1092, 1095 (10th Cir. 2006) (citing Real ID Act
§ 106(c)). M r. Abiodun did not file in the district court a notice of appeal
regarding the dismissed portion of his habeas petition, and instead, on M arch 27,
2006, filed in this court a docketing statement, and on July 17, 2006, a “Brief on
Habeas A ction.” In the brief, M r. Abiodun lists two issues: (1) “[w]hether [he] is
a national of the United States . . . but for the negligence of the immigration
authorities,” Pet. Br. at 4 (quotation omitted); and (2) whether the INS violated
his constitutional rights by commencing removal proceedings immediately after
his state-court conviction, id. at 13.
D ISCUSSION
I. Naturalization
M r. Abiodun argues that if BCIS had acted promptly on his naturalization
application, he would have been a naturalized United States citizen at the time of
his state drug convictions and would not have become deportable. He also argues
that the denial of naturalization is flawed because it was “based on a charge that
was not sustained by the requisite evidence,” Pet. Br. at 9, and “[t]he conviction
did not occur within [his] statutory eligibility requirement period” and “is not
considered final,” id. at 9-10. W e lack jurisdiction to consider these arguments.
Consistent with section 106(c) of the Real ID Act, the district court transferred to
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this court only removal issues. See Pub. L. 109-13, 119 Stat. 231, 311 (2005)
(requiring the transfer to a circuit court of any portion of a habeas case
“challenging a final administrative order of removal, deportation, or exclusion”).
The district court retained jurisdiction over M r. Abiodun’s habeas challenge to his
naturalization proceedings and dismissed that challenge. See generally Ferry v.
Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (considering a “mixed habeas
petition” and observing that “the Real ID Act did not eliminate a district court’s
jurisdiction to review habeas petitions challenging an alien’s detention”).
M r. Abiodun’s failure to appeal the dismissal of his naturalization challenge
precludes our review. See 28 U.S.C. § 2253(a) (providing for an appeal from a
final judgment in a habeas case); id. § 2107(a) (stating that “no appeal shall bring
any judgment, order or decree in an action, suit or proceeding of a civil nature
before a court of appeals for review unless notice of appeal is [timely] filed”);
cf. Abiodun, 461 F.3d at 1217 (recognizing that “review of a decision denying
naturalization is outside the scope of removal proceedings”). 4
4
Even if one or more of M r. Abiodun’s filings in this court, such as his
docketing statement, could be construed as the functional equivalent of a notice of
appeal, cf. Sm ith v. Barry, 502 U.S. 244, 245 (1992) (holding that “a document
intended to serve as an appellate brief may qualify as the notice of appeal”);
Ayala v. United States, 980 F.2d 1342, 1344 (10th Cir. 1992) (holding that a
docketing statement and an attachment sufficiently augmented a defective notice
of appeal), we conclude that the district court properly dismissed M r. Abiodun’s
naturalization challenge for lack of jurisdiction. The challenge was expressly
premised on 8 U.S.C. § 1447(b), which gives the district court jurisdiction only
when there has been no action on a naturalization application within 120 days
(continued...)
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M r. Abiodun also argues that he is not removable because he became a
United States national upon executing an oath-of-allegiance form during his
naturalization examination. W hen review ing a removal order, this court ordinarily
has jurisdiction to consider w hether the petitioner is a national of this country.
See 8 U.S.C. § 1252(b)(5). But M r. Abiodun’s oath argument was presented and
rejected during this court’s first review of the removal order. See Abiodun,
461 F.3d at 1215-16. W e are statutorily barred from review ing a removal order if
“another court has . . . decided the validity of the order.” 8 U.S.C. § 1252(d)(2).
The only exceptions are if “the petition presents grounds that could not have been
presented in the prior judicial proceeding or that the remedy provided by the prior
proceeding was inadequate or ineffective to test the validity of the order.” Id.Neither exception applies here to permit a second review of M r. Abiodun’s
removal order.
II. Commencement of Removal Proceedings
M r. Abiodun next argues that his constitutional rights were violated by
immigration authorities “lodging a detainer against him immediately after the jury
conviction on April 24, 2002, when he had not waived his appeal as of right.”
4
(...continued)
after examination. M r. Abiodun filed his habeas challenge after BCIS acted on
his application by denying it. The proper statute for judicial review following
such a denial is 8 U.S.C. § 1421(c). But the district court could not have taken
jurisdiction under that statute because M r. Abiodun failed to exhaust his
administrative remedy of appealing the denial to an immigration officer. See id;
8 C.F.R. § 336.9(d).
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Pet. Br. at 16. Because this argument was presented and rejected during this
court’s first review of the removal order, see Abiodun, 461 F.3d at 1217, we
cannot consider it again, 8 U.S.C. § 1252(d)(2).
M r. Abiodun also argues that the “removal order [is] based on [a] charge
that was not sustained by the requisite evidence.” Pet. Br. at 19. But that
argument too was raised and resolved during our prior review, see Abiodun,
461 F.3d at 1217, and cannot be addressed again, 8 U .S.C. § 1252(d)(2).
M r. Abiodun further argues that “EO IR authorities [5] ” (1) “fail[ed] to notify
him of his right to contact consular or diplomatic officials of his native former
country for assistance,” Pet. Br. at 22; (2) “fail[ed] to determine his citizenship but
proceeded to take evidence,” id. at 19; (3) “fail[ed] to protect the petitioner’s right
to counsel under 8 C.F.R. § 292, but proceeded to take evidence,” id. at 20;
(4) “coerc[ed] his answers concerning citizenship, nationality and conviction and
thus incriminated him,” id.; and (5) failed to “giv[e] petitioner a reasonable
opportunity to examine the evidence against him,” id. at 20-21. None of these
arguments were raised in M r. Abiodun’s initial petition for review. Nevertheless,
5
M r. Abiodun is apparently referring to the Executive Office for
Immigration Review, which is the governmental entity that encompasses
immigration judges and the BIA . See Rubio-Rubio v. INS, 23 F.3d 273, 274 n.1
(10th Cir. 1994).
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because they could have been raised initially, they are barred now. See 8 U.S.C.
§ 1252(d)(2). 6
Finally, M r. Abiodun states that he has been transferred to a “new location”
which “lacks adequate legal, writing and printing materials to assist the petitioner
to effectively represent himself,” and that immigration authorities failed to
forw ard Respondent’s docketing statement to the new location. Pet. Br. at 23.
M r. Abiodun fails to satisfy the actual injury component of constitutional standing
to bring this claim.
Although due process applies in removal proceedings, Ferry, 457 F.3d at
1128, and due process requires that prisoners have at their disposal adequate legal
tools, see Bounds v. Smith, 430 U.S. 817, 828 (1977), M r. Abiodun does not
indicate how, or even if, the purportedly inadequate materials or the non-
forwarded docketing statement impacted this proceeding. Consequently, without
deciding the parameters of a removable prisoner’s due process right to adequate
legal materials, we simply conclude that M r. Abiodun has failed to demonstrate
any actual injury that “hindered his efforts to pursue a legal claim.” Lewis v.
Casey, 518 U.S. 343, 351 (1996).
6
M oreover, it appears that items four and five were not exhausted through
the BIA . See 8 U.S.C. § 1252(d)(1) (providing that “[a] court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right”); Galvez Pineda v. Gonzales, 427 F.3d 833, 837
(10th Cir. 2005) (observing that a “[f]ailure to exhaust administrative remedies by
not first presenting a claim to the BIA deprives this court of jurisdiction to hear
it”).
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The petition for review is DISM ISSED. 7
Entered for the Court
Jerome A. Holmes
Circuit Judge
7
M r. Abiodun’s motions to strike Respondent’s brief and to transfer this
proceeding to the district court are denied. M r. Abiodun’s motions for emergency
injunctive relief, and to amend the caption, are denied as moot. M r. Abiodun’s
motions to supplement his docketing statement, and to supplement his brief are
granted; we have considered the arguments contained therein. Similarly, we grant
M r. Abiodun’s motion to amend information. Respondent’s motions “to deny
Petitioner’s Attachment” and supplementation of the docketing statement are
denied. Respondent’s motion for judicial notice of the record in M r. Abiodun’s
prior removal proceeding is granted.
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