Poole v. Mukasey ( 2008 )

06-4069-ag
Poole v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
(Submitted: February 5, 2008 Decided: March 27, 2008)
Docket No. 06-4069-ag
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RODWELL ARLIE ANTHONY POOLE,
Petitioner,
v.
MICHAEL B. MUKASEY,* Attorney General
of the United States, DEPARTMENT OF
HOMELAND SECURITY, and IMMIGRATION
AND CUSTOMS ENFORCEMENT (ICE),
Respondents.
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Before: NEWMAN, WINTER, and B.D.PARKER, Circuit Judges.
Petition for review of the August 2, 2006, decision of the Board
of Immigration Appeals dismissing as untimely challenges to an order
of removal without considering a claim for derivative citizenship.
Dismissed in part and remanded in part.
Jennifer Oltarsh, Oltarsh & Associates, P.C.,
New York, N.Y., submitted a brief for
Petitioner.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Michael B. Mukasey is automatically substituted for former Attorney
General Alberto R. Gonzales as a respondent in this case.
Carol Federight, Senior Litigation Counsel,
Peter D. Keisler, Asst. Atty. General, M.
Jocelyn Lopez Wright, Asst. Director, Civil
Division, Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C., submitted a brief for
Respondents.
JON O. NEWMAN, Circuit Judge.
This petition to review a decision of the Board of Immigration
Appeals (“BIA”) primarily concerns the proper disposition of the
petitioner’s claim for derivative citizenship. Rodwell Arlie Anthony
Poole, a native and citizen of Guyana, who has been a lawful permanent
resident of the United States since 1976, seeks review of a decision
of the BIA, dismissing as untimely his appeal from an Immigration
Judge’s (“IJ”) order of removal. We lack jurisdiction to consider all
of his claims except his claim for derivative citizenship, as to which
we remand. We therefore dismiss in part and remand in part.
Background
Poole was admitted to the United States as a lawful permanent
resident in 1976, at the age of ten, along with his mother. His
parents immigrated from Guyana and never married. Poole was raised by
his mother through whom he claims derivative citizenship. She applied
for citizenship in November 1982, when Poole was 16. Her citizenship
application was granted on November 27, 1984, nine months after
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Poole’s eighteenth birthday.2 Poole has three children, aged nineteen,
fourteen, and ten, all of whom are citizens.
Between April 1997 and January 2000, Poole was convicted of
several crimes in New York state court including: third-degree
misdemeanor assault, second-degree felony assault, first-degree
reckless endangerment and third-degree criminal possession of a
weapon.
In June 2002, Poole was served with notice to appear in
immigration court to answer the charges that he is subject to removal
as an alien convicted of an aggravated felony and as an alien
convicted for a firearms offense. See 8 U.S.C. § 1227(a)(2)(A)(iii)
(aggravated felon); id. at 1227(a)(2)(C) (firearms offense).
Poole admitted the allegations against him, except for the
allegation that he is an alien. He contended that he was entitled to
derivative citizenship through his mother, or, alternatively, that he
is entitled to be considered a national of the United States on the
theory that he would have derived citizenship through his mother but
for the delay of the Immigration and Naturalization Service (“INS”) in
processing her citizenship application.
On May 5, 2006, after a series of hearings in immigration court
2
Although not relevant to this appeal, Poole’s father became a
United States citizen on March 22, 1994.
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beginning in 2002, the IJ issued a written decision, ruling that Poole
is not a citizen or national of the United States and that he is
removable as charged and not entitled to any relief. Specifically,
the IJ, citing INS v. Miranda, 459 U.S. 14 (1982), ruled that because
Poole had not shown that the INS committed “affirmative misconduct” in
processing his mother’s citizenship application, he could not make a
claim under former section 321 of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1432(a), that he was entitled to derivative
citizenship. The IJ then found that Poole’s conviction for second-
degree assault was a crime of violence qualifying him as an
“aggravated felon,” and that the crime was also a “particularly
serious crime,” thus rendering Poole ineligible for asylum and
withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and the
Convention Against Torture (“CAT”). The IJ then denied Poole’s
remaining claim for deferral of removal under the CAT, noting that
nothing in the record supported the conclusion that Poole would be
subjected to torture if returned to Guyana. Accordingly, the IJ
ordered him removed to Guyana.
Poole had until June 5, 2006, the next business day following the
thirtieth day after the immigration judge mailed his decision, to file
his appeal with the BIA. See 8 C.F.R. § 1240.15. His appeal was filed
on June 7, 2006, two days late. In August 2006, the BIA dismissed
Poole’s appeal as untimely. The BIA made no reference to Poole’s
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claim of derivative citizenship.
Discussion
Jurisdiction. Our jurisdiction turns on the nature of the claims
presented. Poole challenges his removal on the ground that his
second-degree assault conviction is not an aggravated felony and
because he is a citizen. With respect to a removal order against a
non-citizen who is removable by reason of having committed an
aggravated felony, we lack jurisdiction unless the petition raises a
constitutional claim or a question of law. See 8 U.S.C.
§ 1252(a)(2)(C), (D); see Pierre v. Gonzales, 502 F.3d 109, 113 (2d
Cir. 2007). Thus, except for an obstacle concerning exhaustion of
remedies, which we consider below, we would have jurisdiction to
resolve the legal issue of whether the crime Poole committed is an
aggravated felony. See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d
Cir. 2007).
With respect to Poole’s claim to derivative citizenship, this too
presents an issue of law, over which we retain jurisdiction under
section 1252(a)(2)(C). See Ashton v. Gonzales, 431 F.3d 95, 97 (2d
Cir. 2005).
Exhaustion of remedies. The Government contends that Poole’s
appeal of the IJ’s decision to the BIA was untimely and that, as a
result, Poole failed to exhaust his administrative remedies, thus
depriving this court of jurisdiction to review his legal challenge to
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the removal order. Poole responds that the Federal Rules of Civil
Procedure provided him with an additional three days to file his
appeal to the BIA.
The regulations governing procedures before IJs and the BIA
provide that a notice of appeal to the BIA of an IJ’s decision “shall
be filed directly with the Board . . . within 30 calendar days after
the stating of an Immigration Judge’s oral decision or the mailing of
an Immigration Judge’s written decision.” 8 C.F.R. § 1003.38(b). “If
the final date for filing falls on a Saturday, Sunday, or legal
holiday, [the] appeal time shall be extended to the next business
day.” Id. The date the BIA received the notice of appeal is the date
it is considered filed. Id. at 1003.38(C).
The IJ issued his decision on May 5, 2006. The decision was
mailed on that date and stated on its cover that a notice of appeal is
due “within 30 calendar days of the date of the mailing of this
written decision.” Poole thus had until June 5, 2006, to file his
appeal. The BIA received Poole’s notice of appeal on June 7, 2006,
and denied the appeal as untimely. The BIA’s order stated that the
IJ’s decision was final, and that any party wishing to challenge the
finding of untimeliness must file a motion to reconsider with the BIA,
and that any other motion should be filed with the IJ. Poole did not
file any subsequent motions.
Poole presents two arguments in response to the BIA’s ruling that
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his administrative appeal was untimely. First, he argues that his
counsel did not receive the IJ’s decision until “almost two weeks
later.” This assertion, which appears only in Poole’s brief to this
Court, need not be considered since its factual basis is not in the
record. See 8 U.S.C. 1252(b)(4)(A) (“[T]he court of appeals shall
decide the petition only on the administrative record on which the
order of removal is based.”). Moreover, nothing in the record compels
the conclusion that the decision was not mailed on May 5, 2006, as
would be required to reverse a factual determination made by the BIA
as to timeliness. See 8 U.S.C. 1252(b)(4)(A).
Second, Poole claims that the “three-day rule” of Rule 6(e) of
the Federal Rule of Civil Procedure 6(e) should apply here. Rule 6(e)
provides: “Whenever a party must or may act within a prescribed period
after service and service is made under Rule 5(b)(2)(B), (C), or (D),
3 days are added after the prescribed period would otherwise expire
under subdivision (a).” This issue was never raised before the BIA,
and is thus unexhausted and cannot be raised here for the first time.
See Lin Zhong v. United States DOJ, 480 F.3d 104, 107 (2d Cir. 2006).
Moreover, the Federal Rules of Civil Procedure do not apply to
proceedings before the BIA. See Fed. R. Civ. P. 1 (“[t]hese rules
govern the procedure in . . . the United States district courts”);
Kalejs v. INS, 10 F.3d 441, 447 (7th Cir. 1993) (Federal Rules of
Civil Procedure do not apply to deportation proceedings); In re Magana
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17 I. & N. Dec. 111, 115 (B.I.A. 1979) (same); In re McNeil, 11 I. &
N. Dec. 378, 389 (B.I.A. 1965) (same); see also Zhong Guang Sun v.
U.S. Department of Justice, 421 F.3d 105, 108 (2d Cir. 2005) (Federal
Rules of Appellate Procedure inapplicable to deportation proceedings).
Finally, even if Rule 6(e) of the Civil Rules were applicable, it
would add three days only to a time period that begins running on the
date of “service,” and thus would not extend Poole’s 30-day appeal
period, which began running on the date of mailing. See Hatchell v.
United States, 776 F.2d 244, 246 (9th Cir. 1985).
Poole’s objections to the BIA’s untimeliness ruling therefore
lack merit. As a result his challenge to the removal order in this
Court remains unexhausted. “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.” 8 U.S.C. § 1252(d)(1).
“Statutory exhaustion requirements are mandatory, and courts are not
free to dispense with them.” Bastek v. Fed. Crop Ins., 145 F.3d 90, 94
(2d Cir. 1998). In particular, the INA's exhaustion requirement
constitutes a “clear jurisdictional bar, and admits of no exceptions.”
Mejia-Ruiz v. INS, 51 F.3d 358, 362 (2d Cir. 1995) (internal quotation
marks omitted). Accordingly, Poole’s removal and CAT claims are
unexhausted, and we lack jurisdiction to consider them.
This Circuit has not expressly considered whether a failure to
file a timely appeal with the BIA renders claims unexhausted, but we
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agree with the Sixth and Ninth Circuits that a late appeal to the BIA
leaves a petitioner’s claim unexhausted, and that a court then lacks
jurisdiction to consider the unexhausted claims. See Sswajje v.
Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003); Da Cruz v. INS, 4 F.3d
721, 722-23 (9th Cir. 1993).
We must therefore dismiss for lack of jurisdiction all aspects of
Poole’s petition, except his claim for derivative citizenship, to
which we now turn.
Derivative citizenship. Poole’s claim to derivative citizenship
does not encounter a jurisdictional obstacle for lack of exhaustion.
The Executive Branch may remove certain aliens but has no authority to
remove citizens. An assertion of United States “citizenship is thus
a denial of an essential jurisdiction fact” in a deportation
proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922); Rivera v.
Ashcroft, 394 F.3d 1129, 1136 (9th Cir. 2005); see also Frank v.
Rogers, 253 F.2d 889, 890 (D.C. Cir. 1958) (“Until the claim of
citizenship is resolved, the propriety of the entire proceeding is in
doubt.”). If the Government’s argument that exhaustion is required
were correct, “it would be possible to unintentionally relinquish U.S.
citizenship . . . . The Constitution does not permit American
citizenship to be so easily shed.” Rivera, 394 F.3d at 1136.
Relinquishing citizenship requires an affirmative act. See Vance v.
Terrazas, 444 U.S. 252, 260-61 (1980); see also Trop v. Dulles, 356
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U.S. 86, 92 (1958) (plurality opinion) (“citizenship is not a license
that expires upon misbehavior.”). “[T]he statutory administrative
exhaustion requirement of § 1252(d)(1) does not apply” to “a person
with a non-frivolous claim to U.S. citizenship.” Minasyan v. Gonzales,
401 F.3d 1069, 1075 (9th Cir. 2005) (internal quotation marks
omitted); see also Moussa v. INS, 302 F.3d 823, 825 (8th Cir. 2002)
(holding that the exhaustion requirement of subsection 1252(d)(1)
applies “only to an ‘alien’” “challenging a final order of removal”
and not to “‘any person.’”).
To determine whether an alien obtains derivative citizenship
under 8 U.S.C. § 1432(a), the court “appl[ies] the law in effect when
[petitioner] fulfilled the last requirement for derivative
citizenship.” Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005). At
the time Poole’s mother received citizenship in 1984, section 321(a)
of the INA provided:
A child born outside of the United States of alien parents
. . . becomes a citizen of the United States upon
fulfillment of the following conditions:
(1) the naturalization of both parents; or
(2) the naturalization of the surviving parent if one of the
parents is deceased; or
(3) the naturalization of the parent having legal custody of
the child when there has been a legal separation of the
parents or the naturalization of the mother if the child was
born out of wedlock and the paternity of the child has not
been established by legitimation; and if
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(4) such naturalization takes place while such child is
unmarried and under the age of 18 years; and
(5) such child is residing in the United States pursuant to
a lawful admission for permanent residence at the time of
the naturalization of the parent last naturalized under
clause 8 U.S.C. § 1432(1), or the parent naturalized under clause (2) or (3), or thereafter begins to reside
permanently in the United States while under the age of 18 years.
8 U.S.C. § 1432(a) (repealed). Subsections 1432(a)(1) and (2) are
inapplicable here. Accordingly, the only way Poole can secure
derivative citizenship is by showing (1) either (a) that there has
been a legal separation of his parents and the parent having legal
custody has been naturalized, or (b) that he has been born out of
wedlock, his mother has been naturalized, and his paternity has not
been established by legitimation; (2) that such naturalization
occurred while he was under the age of eighteen; and (3) that he was
residing in the United States pursuant to a lawful admission for
permanent residence at the time his mother becomes naturalized. See
id.Poole satisfies the second alternative of the first requirement
since he was born out of wedlock,3 his mother was naturalized, and his
father never legitimated him.4 He also satisfies the third requirement
3
The fact that Poole’s parents never married supports a finding
of a birth out of wedlock.
4
Legitimacy is determined by the law of the country in which Poole
was born, see Wedderburn v. INS, 215 F.3d 795, 797 (7th Cir. 2000)
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since as he was legally residing in this country at the time his
mother was naturalized.
Because Poole’s only possible claim to derivative citizenship is
through the illegitimacy prong of subsection 1432(a)(3), the final
inquiry focuses on whether Poole’s mother received her citizenship
prior to Poole’s eighteenth birthday. See 8 U.S.C. § 1432(a)(4).
Because Poole’s mother was naturalized nine months after Poole’s
eighteenth birthday he appears to fail to satisfy the timing
requirement of subsection 1432(a)(4).
However, there might be some basis for relieving Poole of the
requirement that his mother was naturalized prior to his eighteenth
birthday. She applied for citizenship when he was 16. The record
provides no indication why the Government took two years to process
her application. A more expeditious processing, if completed within
two years, would have provided Poole with derivative citizenship.
(referring to laws of Jamaica, where petitioner was born, to determine
petitioner’s paternity), which in this case is Guyana. As determined
in 2006 by the BIA, under Guyanese law, a father legitimates his
illegitimate child only if the father marries the child’s mother. In
re Rowe, 23 I. & N. Dec. 962, *12-13 (BIA 2006); see also Gorsira v.
Loy, 357 F. Supp. 2d 453, 463-64 (D. Conn. 2005) (finding same).
Poole’s parents never married. Accordingly, under Guyanese law, his
father never legitimated him.
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Form N–400 (Application for Naturalization) requires the applicant to
provide the names and dates of birth of children. The Third Circuit,
in an unpublished opinion, has accepted the argument that an
inexplicable delay on the part of the INS in processing a parent’s
citizenship application should not defeat a child’s claim for
derivative citizenship. See Calix-Chavarria v. AG of the United
States, 182 Fed. Appx. 72, 76 (3d Cir. 2006).
In the pending case, the IJ dismissed Poole’s derivative
citizenship claim by stating, “This court does not believe that the
respondent has derived citizenship through parentage for the reasons
indicated.” No reason is provided, but perhaps the IJ was referring
to his earlier statement that an estoppel against the Government was
not available because the INS had not engaged in affirmative
misconduct in processing the mother’s application. On appeal, the BIA
gave no consideration to the claim for derivative citizenship.
If the equities of the situation are relevant, they appear to
favor the exercise of discretion in Poole’s favor, despite his
criminal offenses. His mother’s application was filed two years
before his eighteenth birthday; the INS, alerted to the date when he
would turn eighteen, had an opportunity to complete its review in time
for him to acquire derivative citizenship; he has three children, aged
nineteen, fourteen, and ten, all of whom are citizens residing in this
country; and both his parents are citizens residing in this country.
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Under all the circumstances, we will remand the case to the BIA
for consideration of what relief, if any, might be accorded to Poole
with respect to his claim for derivative citizenship. Even if the BIA
determines that relief is not available for Poole, the Government
might wish to consider the advisability of instituting some procedure
whereby the citizenship applications of parents with minor children
born abroad are sorted by the children’s ages and a priority is given
to processing the applications of parents whose children are nearing
eighteen at the time of the application.
Conclusion
For the foregoing reasons, Poole’s claim of derivative
citizenship is remanded to the BIA, and the remainder of his claims
are dismissed for lack of jurisdiction.
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