Francis N. Ettienne v. U.S. Atty. General , 190 F. App'x 938 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10504 AUGUST 3, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A34-304-457
FRANCIS NORMAN ETTIENNE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 3, 2006)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner is a native and citizen of the Island of Dominica. He entered the
United States on February 2, 1974 at San Juan, Puerto Rico as an immigrant. He
subsequently applied for naturalization as a United States citizen but abandoned his
application.
On July 13, 2001, petitioner, having been convicted in federal court of bank
fraud and possession of counterfeit securities, was sentenced to prison for 18
months. On September 13, 2001, he was issued a Notice to Appear by the
Immigration authorities and proceedings to remove him from the United States
commenced. The grounds for removal were that he had been convicted of an
aggravated felony. On September 2, 2002, petitioner was convicted in a Florida
state court of grand theft and sentenced to 46 months confinement. The Notice to
Appear was subsequently amended to include this offense as a ground for removal.
In response to the Notice to Appear, petitioner applied for asylum and
withholding of removal. At a hearing on the Notice, an Immigration Judge (“IJ”)
found that the charges cited in the Notice were true (based on petitioner’s
admissions) and that petitioner was ineligible for any form of relief from removal.
The IJ therefore ordered him removed.
Petitioner appealed the order to the Board of Immigration Appeals (“BIA”).
The BIA dismissed the appeal because the only ground he raised – that by applying
for naturalization, he attained the status of a “national” of the United States – was
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meritless.1 Petitioner sought review in this court, but we dismissed his petition
because it was untimely.
Petitioner, then incarcerated in a Florida jail, thereafter petitioned the United
States District Court for the Northern District of Florida pursuant to 28 U.S.C. §
2241 for a writ of habeas corpus. That court transferred the petition to this court
pursuant to the Real ID Act, § 106(c), 119 Stat. 231 at 311, and it is now before
this panel.
Petitioner’s sole argument to us is that, contrary to the decision of the BIA,
he is a national of the United States and thus is not subject to removal. He asserts
that he has demonstrated permanent allegiance to the United States by
(1) continuously residing in the United States since 1974, and prior to that residing
in a United States territory since 1963; (2) obtaining lawful permanent resident
status; (3) applying for citizenship; and (4) taking an oath of allegiance to the
United States.
“Though 8 U.S.C. § 1101(a)(22) states that a person is a ‘national of the
United States’ if he owes ‘permanent allegiance to the United States,’ the manner
in which one comes to owe allegiance to the United States is through birth or
naturalization pursuant to the statutory scheme enacted by Congress.” Tovar-
1
Petitioner conceded that he was not qualified for asylum. Given this concession, he
was ineligible for withholding of removal.
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Alvarez v. United States Atty. Gen., 427 F.3d 1350 (11th Cir. 2005). An alien
cannot establish nationality by demonstrating permanent allegiance through
longtime residence and application for citizenship. Id.Petitioner was not born in the United States or one of its territories, nor has
he completed the naturalization process promulgated by Congress. His only basis
for claimed nationality is his lengthy permanent resident status and his applications
for citizenship. This is insufficient to establish nationality.
PETITION DENIED.
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