Ogundoju v. Attorney General , 316 F. App'x 129 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-5-2009
Ogundoju v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1368
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-1368
___________
OLUWAFUNMILAYO OGUNDOJU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Initially Docketed as an Appeal from the
United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 01-CV-00680)
Converted to a Petition for Review
Pursuant to the REAL ID Act of 2005
Agency No. A39 039 008
Immigration Judge: Charles Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 30, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: March 5, 2009)
___________
AMENDED OPINION
___________
PER CURIAM
This matter originally came to our Court as an appeal of an order of the United
States District Court for the Middle District of Pennsylvania, which had denied
Oluwafunmilayo Ogundoju’s petition for a writ of habeas corpus. Due to the passage of
the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, while the appeal was pending, we
will vacate the District Court’s decision, convert Ogundoju’s habeas petition into a
petition for review, and transfer the matter to the District Court for a new hearing
regarding Ogundoju’s claim of derivative United States citizenship under since-repealed 8
U.S.C. § 1432(a).1
I.
Because we write primarily for the parties, we need not describe all the facts and
the long procedural history. In brief, Ogundoju entered the United States as a lawful
1
This statute provided, in pertinent part:
A child born outside of the United States of alien parents, or of an alien parent and a
citizen parent who has subsequently lost citizenship of the United States, becomes a
citizen of the United States upon fulfillment of the following conditions:
...
(3) The naturalization of the parent having legal custody of the child when there has been
a legal separation of the parents . . . ; and if
(4) Such naturalization takes place while such child is under the age of eighteen 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 . . . naturalized under
clause . . . (3) of this subsection, or thereafter begins to reside permanently in the United
States while under the age of eighteen years.
8 U.S.C. § 1432(a) (1999), repealed by CCA, § 103, Pub.L. No. 106-395, 114 Stat. 1631.
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permanent resident in 1989 at the age of 15. Dkt. #66, Exh. B. He states that he was then
in the sole custody of his father, who was already a naturalized citizen, and that his father
and mother divorced many years earlier. In 1996 and 1997, Ogundoju was convicted of
two drug crimes, and he was placed in removal proceedings on the basis of those
convictions. Id.
In the meantime, Ogundoju filed an N-600 form, Application for Certificate of
Citizenship, claiming he derived United States citizenship from his father. The
application was denied on May 3, 1999 because of a lack of evidence that his parents had
been married and divorced. Dkt. #66, Exh. D. Ogundoju’s two requests for consideration
were denied; see Dkt. #66, Exhs. F and G; and his appeal to the Administrative Appeals
Unit (AAU) was denied on February 29, 2000; see Dkt. #66, Exh. H.
On July 13, 2000, the Immigration Judge (IJ) ordered Ogundoju removed in
absentia, as neither he nor his attorney was present for a hearing before the IJ. Dkt. #66,
Exh. I. Ogundoju sought reopening, but the IJ rejected his contention that he had not
received notice of the removal hearing and denied his motion, noting that Ogundoju was
present and informed of his hearing date. Dkt. #66, Exh. J. Ogundoju did not appeal to
the Board of Immigration Appeals (BIA). Instead, he filed a habeas petition in the
District Court, which he later amended to include his claim of derivative citizenship.
The District Court determined that it had jurisdiction to consider constitutional and
legal claims involving a criminal alien’s citizenship claim in the context of a habeas
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proceeding, but determined that it lacked jurisdiction to decide disputed questions of fact.
As both Ogundoju and the Government recognized that there was a disputed issue; i.e.,
whether Ogundoju’s father took custody of him following a legal separation, the District
Court declined to resolve the citizenship issue. Dkt. #112. Ogundoju filed a timely
appeal. Dkt. #114.
On March 31, 2005, this Court granted Ogundoju’s motion for a stay of removal,
and asked the parties to brief three issues: “(i) whether a district court’s habeas
jurisdiction includes the authority to decide a claim that a petitioner is a citizen of the
United States; (ii) if so, whether a habeas court deciding a citizenship claim may resolve
disputed issues of fact; and (iii) whether Appellant sufficiently exhausted his claim that
he is a United States citizen.” Less than two months later, the REAL ID Act became
effective. As we have converted the habeas petition to a petition for review, the need to
decide the District Court’s habeas jurisdiction and the scope of its jurisdiction in that
context is obviated. Jordon v. Attorney General, 424 F.3d 320, 325 (3d Cir. 2005).
II.
The remaining legal issue is exhaustion. The question of whether a person is an
alien is an essential jurisdictional fact: the Government lacks the authority to remove a
person unless he or she is an alien. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
Because we are reviewing a final order of removal of a purported alien, “[u]ntil the claim
of citizenship is resolved, the propriety of the entire proceeding is in doubt.” Frank v.
4
Rogers, 253 F.2d 889, 890 (D.C. Cir. 1958). Further, although “the exhaustion
requirement of 8 U.S.C. § 1252(d) is jurisdictional,” Popal v. Gonzales, 416 F.3d 249,
252 (3d Cir. 2005), the exhaustion doctrine applies by its terms only to aliens. 8 U.S.C. §
1252(d)(1). If Ogundoju is, as he claims, actually a United States citizen, the immigration
laws – including their requirement of administrative exhaustion – do not apply to him.
Other circuit courts of appeal have thus held that a citizenship claim can be heard without
regard to whether the person bringing the claim has exhausted administrative remedies.
See, e.g., Poole v. Mukasey, 522 F.3d 259, 264 (2d Cir. 2008); Omolo v. Gonzales, 452
F.3d 404, 407 (5th Cir. 2006); Theagene v. Gonzales, 411 F.3d 1107, 1110 (9th Cir.
2005); Moussa v. I.N.S., 302 F.3d 823, 825 (8th Cir. 2002). We thus find that we have
jurisdiction to consider Ogundoju’s citizenship claim and must entertain that claim before
§ 1252(d)(1) can be applied.
We may not decide the merits of Ogundoju’s claim, however, because, as the
parties recognize, there remains a genuine issue of material fact, which must be resolved
by the District Court in the first instance. 8 U.S.C. § 1252(b)(5)(B). We will therefore
hold the petition in abeyance and transfer the matter to the District Court for a new
hearing on the citizenship claim.
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