In Re: Biba Kajtazi ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-12-2005
In Re: Biba Kajtazi
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3966
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"In Re: Biba Kajtazi " (2005). 2005 Decisions. Paper 425.
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BPS-358 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3966
________________
IN RE: BIBA KAJTAZI,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court For the
District of New Jersey
(Related to D.C. Civ. No. 02-cv-00124)
__________________________
Submitted Pursuant to Rule 21, Fed. R. App. Pro.
September 9, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: October 12, 2005 )
_________________
OPINION
PER CURIAM
On January 11, 2002, petitioner Biba Kajtazi, a federal prisoner, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2241 in United States District Court for the
District of New Jersey, challenging a March 1, 2001 detainer lodged against him by the
former Immigration and Naturalization Service.1 In December 1995, Kajtazi pleaded
guilty to possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1) in United States District Court for the District of Puerto Rico, and he
is now serving a 10 year mandatory minimum sentence. This conviction provides a basis
for his removal from the United States pursuant to Immigration and Nationality Act
(“INA”) § 237(a)(2)(B)(i) (controlled substance violation other than possession of 30
grams or less of marijuana for personal use), 8 U.S.C. § 1227(a)(2)(B)(i), for example,
but only if Kajtazi is an alien, and not a United States citizen. Kajtazi is not yet in
removal proceedings.
The habeas petition challenged the immigration detainer on the ground that Kajtazi
acquired United States citizenship on July 31, 1985, when his father was naturalized.
When Kajtazi was five years old, he and his parents emigrated to the United States as
lawful permanent residents. In April 1985, his parents allegedly were divorced by the
Municipal Court of Prizren in Kosovo. The divorce decision granted custody of Kajtazi
to his father. On July 31, 1985, when Kajtazi was seventeen years old, his father became
a naturalized citizen of the United States.
The District Court credited Kajtazi’s argument that he automatically acquired
1
On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an
independent agency within the Department of Justice, and its functions were transferred
to the newly formed Department of Homeland Security. See Homeland Security Act, 116
Stat. 2135, Pub.L. 107-296 (2002). The former INS was divided into three separate
agencies: United States Immigration and Customs Enforcement; Bureau of Customs and
Border Protection; and United States Citizenship and Immigration Services.
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citizenship by satisfying former 8 U.S.C. § 1432(a)(3) when his father was naturalized.2
The court found that he would have automatically acquired citizenship under the statute if
the following conditions were met: (1) naturalization of the parent, (2) having legal
custody of the child, (3) when there has been a legal separation of the parents; (4)
naturalization of the parent takes place while the child is under age 18; and (5) the child
resides in the United States at the time of the naturalization pursuant to a lawful
admission for permanent residence. However, the District Court could not determine
from the face of the documents submitted by Kajtazi that his parents, in fact, had been
legally separated.
The District Court appointed the Federal Public Defender to represent Kajtazi and
scheduled an evidentiary hearing, but then adjourned matters pending administrative
proceedings. On July 8, 2003, the Bureau of Citizenship and Immigration Services
denied Kajtazi’s N-600 application for a certificate of derivative citizenship. The BCIS
found that, at all relevant times, Kajtazi’s parents were married, and that the divorce
decree submitted in support of the citizenship application was not authentic. Apparently,
the Consular Section of the U.S. Office in Pristina informed the District Adjudications
Officer for the INS that the authenticity of the documentation was questionable, as the
“Marriage Registry Book in Prizren Municipality” did not contain any divorce record for
Kajtazi’s parents.
2
Insofar as we write only for the parties, and they are familiar with the statute as set
forth in the District Court’s Order on pages 4-5, we will not set it forth here.
3
On November 5, 2004, the Administrative Appeals Office of U.S. Citizenship and
Immigration Services rejected Kajtazi’s appeal as untimely. With administrative
proceedings seemingly concluded, Kajtazi moved in November 2004 to reopen the habeas
proceedings and for an evidentiary hearing to resolve a factual dispute concerning his
parents’ divorce. The government opposed the motion, arguing that administrative
proceedings were ongoing insofar as USCIS had on its own, on December 14, 2004,
decided to reopen proceedings pursuant to 8 C.F.R. § 103.5(a)(5)(ii). Kajtazi participated
in these proceedings, and his parents submitted affidavits indicating that they were
divorced in 1985, but remarried two years later.
On February 14, 2005, the New York District Office once again denied Kajtazi’s
application, finding that his parents were still married to each other and had not been
divorced prior to his turning 18. The decision was based on assertions made by his
mother, on February 17, 1994, and father, on July 31, 1985, in the context of their
naturalization applications, as recorded in their alien files, that they were “still married”
as of those dates. Neither ever mentioned a divorce or remarriage during naturalization
proceedings, and their contemporary affidavits were deemed not credible.
On August 23, 2005, when there had been no further developments in his habeas
case, Kajtazi filed a petition for writ of mandamus pro se in this Court, asking us to take
jurisdiction away from the District Court and assume it ourselves, or, in the alternative,
order the District Court to rule on his habeas petition. Kajtazi alleged a violation of his
4
right to due process insofar as habeas proceedings have been inordinately delayed.
Although not scheduled to be released until February 13, 2006, Kajtazi asserts that he
would be eligible for early release for completing drug treatment were it not for the
detainer.
We will deny the petition for writ of mandamus. A writ of mandamus is an
extreme remedy that is invoked only in extraordinary situations. See Kerr v. United
States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this extraordinary
remedy, a petitioner must show both a clear and indisputable right to the writ and that he
has no other adequate means to obtain the relief desired. See Haines v. Liggett Group
Inc., 975 F.2d 81, 89 (3d Cir. 1992). Although an appellate court may issue a writ of
mandamus on the ground that undue delay is tantamount to a failure to exercise
jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), the manner in which a
court controls its docket is discretionary, In re Fine Paper Antitrust Litigation, 685 F.2d
810, 817 (3d Cir. 1982).
In an order entered on August 31, 2005, the District Court, in pertinent part,
granted Kajtazi’s motion to reopen and scheduled an evidentiary hearing for September
20, 2005. The court appears to have concluded that, although Kajtazi has now exhausted
his available administrative remedies, a genuine issue of material fact exists with respect
to the authenticity of Kajtazi’s parents’ divorce decree. Kajtazi was able to obtain
documentation from a United Nations official in Kosovo that it is unlikely that anyone
5
will ever be able to obtain pre-conflict records to substantiate the legal separation of his
parents. Those public records have been either lost or destroyed in the political upheaval
in the former Yugoslavia.
It is thus clear from the August 31 Order that the District Court is aware of the
possibility of prejudice with the passing of time, and intends to move quickly to resolve
the factual issue concerning whether Kajtazi has satisfied 8 U.S.C. § 1432(a), specifically
whether he has established that his parents were indeed divorced by the Municipal Court
of Prizren in Kosovo in April 1985. Resolution of the factual issue will necessarily result
in a decision on the habeas petition. We thus will not disturb the court’s handling of
Kajtazi’s habeas case.
We will deny the petition for writ of mandamus.
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