Dragenice v. Gonzales ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OLGENS DRAGENICE, 
Petitioner,
v.
 No. 05-7050
ALBERTO R. GONZALES, U.S.
Attorney General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A45-481-578)
Argued: September 21, 2006
Decided: December 4, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Petition for review denied by published per curiam opinion.
COUNSEL
ARGUED: Joseph M. Meadows, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Petitioner. Carol Federighi, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent. Robert S. Litt, Brian E. Bowcut,
Emily N. Glatfelter, ARNOLD & PORTER, L.L.P., Washington,
D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, M.
Jocelyn Lopez Wright, Assistant Director, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
2 DRAGENICE v. GONZALES
OPINION
PER CURIAM:
Olgens Dragenice challenges an order of the Board of Immigration
Appeals ("BIA") directing that he be removed to Haiti as an alien
convicted of certain removable offenses. Dragenice claims to be a
national of the United States and, therefore, not subject to removal.
We conclude that Dragenice is an alien subject to removal and deny
the petition for review.
I.
Dragenice, a native and citizen of Haiti, entered the United States
as an 18 year-old in April 1996, in order to join his father who was
residing in New York. Dragenice completed his high school degree
in 1998 and then, in 1999, enlisted in the United States Army
Reserves ("USAR"). Upon enlisting, Dragenice was required to take
an oath of allegiance:
Each person enlisting in an armed force shall take the fol-
lowing oath:
"I, _____________, do solemnly swear (or affirm) that I
will support and defend the Constitution of the United States
against all enemies, foreign and domestic; that I will bear
true faith and allegiance to the same; and that I will obey the
orders of the President of the United States and the orders
of the officers appointed over me, according to regulations
and the Uniform Code of Military Justice. So help me God."
10 U.S.C.A. § 502 (West 1998); see 10 U.S.C.A. § 12102(a) (West
1998) (requiring "enlisted member[s] of a reserve component" to take
the oath mandated by § 502).
In May 2000, Dragenice was convicted in Maryland state court on
three charges: (1) robbery with a dangerous and deadly weapon; (2)
theft involving an amount under $300; and (3) second degree assault.
The Maryland court imposed concurrent sentences of five years for
DRAGENICE v. GONZALES 3
the armed robbery, 18 months for the theft, and five years for the sec-
ond degree assault. The sentencing court subsequently reduced both
five-year sentences and instead imposed three-year sentences for both
the armed robbery and the assault.
Based on these three convictions, the Immigration and Naturaliza-
tion Service ("INS")1 served Dragenice with a Notice to Appear,
charging that he is subject to removal from the United States as an
alien convicted, within five years after admission to the United States,
of a crime involving moral turpitude for which a sentence of more
than one year may be imposed, see 8 U.S.C.A. § 1227(a)(2)(A)(i)
(West 2005); as an alien convicted of a crime of violence qualifying
as an aggravated felony, see 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West
2005); 8 U.S.C.A. § 1101(a)(43)(F) (West 2005); and as an alien con-
victed of a firearms offense, see 8 U.S.C.A. § 1227(a)(2)(C) (West
2005).
At his initial hearing on November 16, 2001, Dragenice appeared
pro se and conceded that he was not a citizen or national of the United
States and that he had been convicted of the predicate offenses set
forth in the Notice to Appear. The Immigration Judge determined that
Dragenice was subject to removal for having committed an aggra-
vated felony and a crime of moral turpitude within five years of
admission. The Immigration Judge deferred ruling on whether Drage-
nice was removable under § 1227(a)(2)(C) for having committed a
firearms offense.
Dragenice then indicated that he intended to seek withholding of
removal to Haiti under the Immigration and Nationality Act ("INA"),
see 8 U.S.C.A. § 1231(b)(3)(A) (West 2005), as well as withholding
of removal under the Convention Against Torture ("CAT"), see 8
C.F.R. § 208.16(c). The Immigration Judge continued the hearing to
afford Dragenice an opportunity to file an application for such relief.
1
The INS ceased to exist in 2002, and its enforcement functions were
transferred to the Department of Homeland Security. See Aremu v.
Department of Homeland Security, 450 F.3d 578, 579 n.2 (4th Cir.
2006).
4 DRAGENICE v. GONZALES
In his application, Dragenice designated his "Present Nationality
(Citizenship)" as Haitian. Dragenice also supplied various details of
his employment history, including his service in the USAR. After
conducting a hearing, the Immigration Judge denied Dragenice’s
request for withholding of removal under either the INA or the CAT.
Based on his previous determination that Dragenice qualified as an
aggravated felon, the Immigration Judge concluded that he was statu-
torily ineligible for withholding of removal under the INA. See 8
U.S.C.A. § 1231(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2). Despite Drage-
nice’s conviction for an aggravated felony and his resulting ineligibil-
ity for withholding, he remained eligible for deferral of removal under
the CAT. See 8 C.F.R. § 208.17(a). Accordingly, the Immigration
Judge considered Dragenice’s claim for relief under the CAT on the
merits but rejected it, finding that he "failed to present sufficient evi-
dence to establish that he will be subjected to ‘torture’" at the hands
of Haitian government officials. J.A. 115. On March 1, 2002, the
court then entered an order denying the requested relief and directing
that Dragenice be removed to Haiti.
Dragenice appealed the order of removal to the BIA, challenging
the Immigration Judge’s factual determination that the evidence did
not establish a likelihood of torture. More importantly for purposes of
the question presently before us, Dragenice asserted for the first time
that he was a national of the United States by virtue of his military
service and, as such, was not subject to removal.
On April 30, 2003, the BIA entered a per curiam order affirming
without opinion the decision of the Immigration Judge and expressly
declaring it to be "the final agency determination." J.A. 136. After
Dragenice filed a motion to reconsider, the BIA entered a second
order dated October 17, 2003, denying Dragenice’s motion. In its sec-
ond order, the BIA specifically addressed the nationality claim: "The
respondent also again argues that he is a national of the United States.
The respondent has not presented an error in our previous decision
regarding this issue. Moreover, even considering the respondent’s
arguments in his motion to reconsider, he has not established that he
acquired United States nationality under the means provided in the
Immigration and Nationality Act." J.A. 137.2
2
In so concluding, the BIA cited and relied upon its decision in Matter
of Navas-Acosta, 23 I & N Dec. 586 (BIA 2003). In Matter of Navas-
DRAGENICE v. GONZALES 5
Dragenice did not petition for review of either BIA decision.
Instead, on February 26, 2003, while his appeal of the Immigration
Judge’s decision was still pending before the BIA, Dragenice filed a
habeas petition in federal district court alleging that his detention
pending removal was unlawful because he was not an "alien" as
defined by the INA. See 8 U.S.C.A. § 1227(a)(2); 8 U.S.C.A.
§ 1101(a)(3) (West 2005). As in his appeal to the BIA, Dragenice
argued that he was a "national of the United States," having voluntar-
ily enlisted in the USAR and taken an oath of allegiance to the United
States for that purpose. See 8 U.S.C.A. § 1101(a)(22) (defining
United States national as a citizen or, alternatively, a noncitizen who
"owes permanent allegiance to the United States"). Dragenice asserted
that he was still a member of the USAR and had not been discharged
from his sworn duty. The district court concluded, however, that it
lacked habeas jurisdiction to determine an issue of nationality in the
context of a removal proceeding. The court transferred Dragenice’s
habeas action to this court under 28 U.S.C. § 1631, which permits the
transfer of a case from a court without jurisdiction to a court in which
the action "could have been brought" originally. We remanded the
case, concluding that the district court had not been without jurisdic-
tion to consider Dragenice’s nationality claim raised in the habeas
petition and thus had improperly transferred the action under sec-
tion 1631. See Dragenice v. Ridge, 389 F.3d 92, 100 (4th Cir. 2004).
Before the district court issued a decision on remand, however,
Congress passed the REAL ID Act of 2005. Section 106(a) of the
REAL ID Act streamlined the process of seeking judicial review of
removal orders under the INA, providing that, "[n]otwithstanding any
other provision of law . . . including section 2241 of Title 28, or any
other habeas corpus provision, . . . a petition for review filed with an
appropriate court of appeals . . . shall be the sole and exclusive means
for judicial review of an order of removal." 8 U.S.C.A. § 1252(a)(5).3
Thus, Congress "divested federal courts of jurisdiction over § 2241
Acosta, the BIA determined, based on "the historical meaning of the term
‘national’ and the statutory framework of the Act," that a person may
acquire the status of a United States national "only though birth or natu-
ralization." Id. at 588.
3
The statute includes limited exceptions not relevant here.
6 DRAGENICE v. GONZALES
petitions attacking removal orders." Rosales v. Bureau of Immigration
and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005) (per
curiam), cert. denied, 126 S. Ct. 1055 (2006).
Moreover, in section 106(c) of the REAL ID Act, Congress estab-
lished transitional rules, directing that in cases like this one, where a
habeas petition "challenging a final administrative order of removal
. . . [was] pending in a district court on the date of the enactment of
this division, then the district court shall transfer the case . . . to the
court of appeals for the circuit in which a petition for review could
have been properly filed. . . . The court of appeals shall treat the trans-
ferred case as if it had been filed pursuant to a petition for review.
. . ." Pub. L. No. 109-13, 119 Stat. 231, 311 § 106(c); see Medellin-
Reyes v. Gonzales, 435 F.3d 721, 723 (7th Cir. 2006) (per curiam)
("[A]ll collateral proceedings pending on May 11, 2005, when the
Real ID Act took effect, and transferred to courts of appeals under
§ 106(c), must be treated as timely petitions for review, no matter
how long it has been since the [BIA] rendered its decision.").
The district court transferred Dragenice’s habeas petition to this
court pursuant to the REAL ID Act’s transitional rules. In accordance
with the transitional rules, we will treat the habeas petition as if it
were a petition for review.
Accordingly, we turn now to consider the single issue in the pres-
ent appeal: Is Dragenice, by virtue of the oath administered when he
enlisted in the United States Army, a "national of the United States"
who, by definition, is not subject to removal?
II.
Only "aliens" are subject to removal under the INA. See 8 U.S.C.A.
§ 1227(a) (delineating "classes" of aliens subject to removal from the
United States); see also Alwan v. Ashcroft, 388 F.3d 507, 512 (5th
Cir. 2004). The INA defines "alien" as "any person not a citizen or
national of the United States." 8 U.S.C. § 1101(a)(3). In turn, the INA
defines a "national of the United States" as "(A) a citizen of the
United States, or (B) a person who, though not a citizen of the United
States, owes permanent allegiance to the United States." 8 U.S.C.
§ 1101(a)(22). Congress provided no explicit guidance, however, as
DRAGENICE v. GONZALES 7
to the circumstances under which a person "owes permanent alle-
giance to the United States."
Dragenice contends that he qualifies as a "national of the United
States" under subsection (B) because he is a noncitizen who owes per-
manent allegiance to the United States. According to Dragenice, he
acquired "national" status when he took the enlistment oath for the
United States military in 1999, swearing to "support and defend the
Constitution of the United States against all enemies, foreign and
domestic; . . . [and to] bear true faith and allegiance to the same." 10
U.S.C.A. § 502. Dragenice argues that his sworn allegiance is "per-
manent" within the meaning of the statute because it is of a continu-
ing nature—Dragenice has not yet been discharged and remains
subject to his military obligations even now.
The Attorney General asserts that "national" status cannot be
acquired under section 1101(a)(22) through the means suggested by
Dragenice; rather, he contends that the structure of the INA permits
a noncitizen to become a "national of the United States" only through
one of two ways. First, a person may become a national — indeed,
a citizen national — through the process of naturalization. Chapter 2
of Title III of the INA, entitled "Nationality Through Naturalization,"
establishes this process. See 8 U.S.C.A. §§ 1421-1458 (West 2005).
Second, national status may be obtained through a person’s circum-
stances of birth. Chapter 1 of Title III, entitled "Nationality at Birth
and Collective Naturalization," awards noncitizen national status to
individuals born to parents who are nationals or born in outlying terri-
tories of the United States. See 8 U.S.C.A. § 1408. The Attorney Gen-
eral points out that the INA does not establish any other avenues for
becoming a national, including enlistment in the United States mili-
tary. Therefore, the Attorney General takes the position that, unless
one acquires national status through birth, anything short of full natu-
ralization will not permit a person to claim the benefits of being a "na-
tional of the United States." See Abou-Haidar v. Gonzales, 437 F.3d
206, 207 (1st Cir. 2006); Marquez-Almanzar v. INS, 418 F.3d 210,
217-19 (2d Cir. 2005); Tovar-Alvarez v. United States Att’y Gen., 427
F.3d 1350, 1353 (11th Cir. 2005) (per curiam); Perdomo-Padilla v.
Ashcroft, 333 F.3d 964, 966 (9th Cir. 2003).
Dragenice, however, claims that under United States v. Morin, 80
F.3d 124 (4th Cir. 1996), he may establish that he owes permanent
8 DRAGENICE v. GONZALES
allegiance to the United States without having to complete the natu-
ralization process. In Morin, this court considered whether there was
a sufficient basis upon which to impose a penalty under 18 U.S.C.A.
§ 2332(a) for the murder of "a national of the United States, while
such national is outside the United States." See Morin, 80 F.3d at 126.
Morin held that the victim, a citizen of Mexico, qualified as a national
under section 1101(a)(22) because he was a permanent legal resident
who had applied for citizenship. See id. Thus, Dragenice insists that
this circuit reads the INA to permit the acquisition of American
national status through means other than birth or the process of natu-
ralization.
We need not determine if, and to what extent, Morin, which arose
in a criminal context, controls our analysis in the immigration context.
Even under Dragenice’s theory that "national of the United States"
status may be established without regard to birth circumstances or the
naturalization process — i.e., "that an alien may attain national status
through sufficient objective demonstrations of allegiance" — we con-
clude that Dragenice does not qualify as a national. Alwan, 388 F.3d
at 513 (declining to decide whether birth and naturalization are the
exclusive means to becoming an American national since petitioner’s
"claim of national status fails under either standard").
The oath Dragenice took upon enlistment does not establish that he
owes permanent allegiance to the United States. The INA defines
"permanent" as "a relationship of continuing or lasting nature, as dis-
tinguished from temporary, but a relationship may be permanent even
though it is one that may be dissolved eventually at the insistence
either of the United States or of the individual, in accordance with
law." 8 U.S.C. § 1101(a)(31). Military service is temporary by nature;
it necessarily has a limit and the oath of allegiance lasts only as long
as the duration of the military service. See Reyes-Alcaraz v. Ashcroft,
363 F.3d 937, 940 (9th Cir. 2004) (rejecting the claim that military
oath could establish national status as "[t]he military oath, fairly read,
promises allegiance . . . for the duration of military service, rather
than permanently"). By contrast, one’s status as a citizen or national
is expected to continue perpetually. Our reading of the plain text in
section 1101(a)(22) — even if this section is removed from the con-
text of the INA as a whole — requires that we reject Dragenice’s
DRAGENICE v. GONZALES 9
argument that he owes "permanent allegiance" by virtue of his mili-
tary oath.
There is an another factor at play that confirms our view that
Dragenice does not qualify as a national under section 1101(a)(22) by
virtue of his military service. The INA specifically addresses the natu-
ralization process for noncitizen members of the United States mili-
tary. Congress relaxed the requirements for such individuals but did
not dispense with them. See 8 U.S.C.A. §§ 1439, 1440. Also instruc-
tive is the exception afforded military personnel from the statutory bar
against applications for naturalization when there are removal pro-
ceedings against the applicant. See 8 U.S.C.A. § 1429. Persons who
served in the military are exempt from section 1429. See 8 U.S.C.A.
§§ 1439(b)(2), 1440(b)(2). These provisions suggest that the oath
administered in connection with military service cannot alone confer
national status; if it were otherwise, then noncitizen soldiers would
never be subject to removal and Congress would not have needed to
craft an exemption. See Reyes-Alcaraz, 363 F.3d at 940-41 (observing
that numerous provisions under the INA that apply specifically to the
naturalization of military personnel "suggest that the persons to whom
[the statutes] apply are not citizens and are not nationals" in the first
place).
III.
For the foregoing reasons, we conclude that Dragenice is not a
national of the United States under 8 U.S.C.A. § 1101(a)(22), that he
is an alien, and that he is subject to removal from the United States
on the grounds set forth in the order of removal.
PETITION FOR REVIEW DENIED