Methode Bekou v. Eric Holder, Jr, U S Attorney , 363 F. App'x 288 ( 2010 )

Case: 09-60235 Document: 00511014041 Page: 1 Date Filed: 01/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2010
No. 09-60235 Charles R. Fulbruge III
Summary Calendar Clerk
METHODE KOMI MAWUNA BEKOU,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
BIA No. A77 818 460
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Petitioner Methode Komi Mawuna Bekou (Bekou), proceeding pro se and
in forma pauperis, seeks review of a March 4, 2009 order of the Board of
Immigration Appeals (BIA) that dismissed Bekou’s case after determining that
it lacked jurisdiction because Bekou had waived appeal of the Immigration
Judge’s (IJ’s) December 15, 2008 decision ordering him removed from the United
States. Bekou alleges that his waiver of appeal of the IJ’s December 15, 2008
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5th
Circuit Rule 47.5.4.
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decision was ineffective, and even if the waiver was effective, this court should
find that he is a citizen by birth of the United States.
I. FACTUAL BACKGROUND
Bekou entered the United States on July 21, 1998 on a J-1 non-immigrant
visa, with authorization to remain in the United States for a temporary period
not to exceed October 17, 1998, in order to teach French at the Concordia
Language Villages in Hackensack, Minnesota. Bekou has remained in the
United States beyond October 17, 1998 without authorization from the
Immigration and Naturalization Services (INS). Accordingly, on July 21, 2008,
the Department of Homeland Security (DHS) issued a Notice to Appear to
petitioner charging him with removability under section 237(a)(1)(B) of the
Immigration and Nationality Act (INA). 8 U.S.C. § 1227(a)(1)(B). During the
removal proceedings, Bekou argued that he had dual citizenship in both the
United States and Togo based on his alleged birth at Niagara Falls, New York
and his Togolese passport allegedly obtained in 2006 by his mother in Togo.
After holding four hearings on the charge of removability and offering
several opportunities for Bekou to obtain counsel, the IJ found that Bekou was
not born in the United States and accordingly was removable as charged. Bekou
indicated his acceptance of the decision and stated “I don’t want to appeal
anything.” Accordingly, the IJ entered a final removal to Germany, Bekou’s
designated removal destination, with an alternate order of removal to Togo.
Notwithstanding his waiver of appeal, on January 5, 2009, Bekou filed a timely
appeal of the IJ’s decision before the BIA. On March 4, 2009, the BIA found that
Bekou had waived his appeal and therefore found it lacked jurisdiction to hear
his appeal. On March 23, 2009, Bekou filed a motion to reconsider with the BIA,
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and on June 30, 2009, the BIA denied Petitioner’s motion after determining that
reconsideration of the March 4, 2009 decision was not warranted.1
II. CLAIM OF INEFFECTIVE WAIVER
Jurisdiction to review Bekou’s appeal of the BIA’s March 4, 2009 order is
proper in this court under section 242(a)(1) of the INA. 8 U.S.C. § 1252(a)(1),
amended by the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106, 119
Stat. 231. With respect to Bekou’s claim that his waiver of appeal of the IJ’s
final order was ineffective, jurisdiction in this court is proper even though Bekou
failed to specifically raise the issue on appeal to the BIA. While “we refuse to
saddle the BIA with the burden of identifying the substance of an immigration
appeal[,] . . . [t]his is not to preclude the BIA from raising issues that the parties
have seemingly abandoned, and should the BIA choose to do so, our exhaustion
inquiry might be much different.” Omari v. Holder, 562 F.3d 314, 322 (5th Cir.
2009) (citing Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 122-26 (3d Cir. 2008)
(discussing the circuit split on the issue of exhaustion)). Furthermore, the
exhaustion requirement “is not needlessly technical or formalistic[,]” and
“requiring the fair presentation of a contested issue is sound policy.” Omari,
562. F.3d at 321.2
1
Because Bekou did not seek judicial review of the BIA’s June 30, 2009 order, we shall
not consider it. See United States v. Narviz-Guerra, 148 F.3d 530, 537 (1998) (“[A]ll issues not
briefed are waived.” (citation omitted)). For final removal orders, section 242(b)(1) of the
Immigration and Naturalization Act, 8 U.S.C. § 1252(b)(1), provides that a petition for judicial
review “must be filed not later than thirty days after the date of the final order of removal.”
See also Stone v. Immigration and Naturalization Serv., 514 U.S. 386, 405 (1995) (holding that
“a deportation order is final, and reviewable, when issued,” and “[i]ts finality is not affected
by the subsequent filing of a motion to reconsider”).
2
The Third Circuit has held that “[w]hile we would usually hold that a petitioner’s
failure to present an issue to the BIA constituted a failure to exhaust, thus depriving us of
jurisdiction to consider it,” where the BIA addresses and rules on the unraised issue sua
sponte, we have jurisdiction to consider the petition for review because the BIA addressed the
issue on the merits “thereby exhausting the issue.” Lin, 543 F.3d at 126.
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With respect to Bekou’s waiver, we shall make our determination “only on
the administrative record on which the order of removal is based,” and “the
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §§ 1252(b)(4)(A)-(B).
In addition, we review factual determinations under the substantial evidence
standard and will not reverse the BIA’s findings “unless the evidence is so
compelling that no reasonable fact finder could fail to find otherwise.” Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001) (internal quotations and
citations omitted).
The BIA found that Bekou had “not made an effective argument that his
decision to waive appeal was not a knowing and intelligent one,” and
accordingly, “the Immigration Judge’s decision became administratively final
upon the respondent’s waiver of the right to appeal . . . .” Particularly, the BIA
found that “[t]he hearing transcript includes the respondent’s testimony that he
accepted the removal order and did not want to appeal with regard to any
issue[,]” and “the Immigration Judge noted the appeal waiver at the bottom of
his decision.” Moreover, because the waiver of appeal was plain on the record,
the BIA was entitled to summarily dismiss his appeal. 8 C.F.R. §
1003.1(d)(2)(i)(G), (e)(3). Because Bekou has failed to introduce any evidence
that his decision to waive appeal was not a knowing and intelligent one, we find
that no “reasonable adjudicator would be compelled to conclude to the contrary”
and accordingly, we affirm the decision of the BIA. 8 U.S.C. §§ 1252(b)(4)(A)-(B).
III. CLAIM OF U.S. CITIZENSHIP BY BIRTH
We shall review Bekou’s claim of United States citizenship de novo unless
we find that “a genuine issue of material fact about [Bekou’s] nationality” has
been presented to the court, in which case we “shall transfer the proceeding to
the district court . . . for a new hearing on the nationality claim and a decision
on that claim as if an action had been brought in the district court.” 8 U.S.C. §
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1252(b)(5)(A)-(B). See Lopez v. Holder 563 F.3d 107, 110 (5th Cir. 2009) (“[A]
court of appeals is directed to conduct a de novo determination based on the
record, of an alien’s claim of nationality.” (citing Marquez-Marquez v. Gonzales,
455 F.3d 548, 554 (5th Cir. 2006))); see also Bustamante-Barrera v. Gonzales, 447
F.3d 388, 393 (5th Cir. 2006) (“Under the plain words of 8 U.S.C. § 1252(b)(5)(A),
we are empowered to ‘decide [a putative citizen’s] nationality claim’ if we ‘find[]
from the pleadings and affidavits that no genuine issue of material fact about
[his] nationality is presented.’”); Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.
2004) (“[T]he INA explicitly places the determination of nationality claims in the
hands of the courts.” (citation omitted)).
Here, transfer to the district court is inappropriate because Bekou has
failed to present “a genuine issue of material fact” as to his citizenship. At the
proceedings below, the IJ found that “all of the evidence indicate[d] that [Bekou
was] born in Togo.” In particular, DHS presented the following evidence
establishing that Bekou was a native and citizen of Togo: (1) Bekou’s Togo
passport which was issued on March 14, 2006 and lists his nationality as
Togolaise, his birth place as Atakpame, Togo, and his date of birth as March 25,
1968; (2) Bekou’s prior Form I-589, Application for Asylum and Withholding of
Removal, which was signed by Bekou on April 16, 1999 and lists his present
nationality as Togolese, his nationality at birth as Togolese, his city of birth as
Atakpame, Togo, his birth date as March 25, 1968, and the expiration date of his
authorized stay as October 17, 1998; (3) Bekou’s signed and notarized affidavit
in support of his Application for Asylum, wherein Bekou states he was born in
Atakpame, Togo on March 25, 1968 and is a native and citizen of Togo; (4) an
attestation by Komla Clement Nyamikou, the Federal President of the Union of
Forces for Change Federation of Wawa (a political organization in which Bekou
was active) stating that Bekou was born on March 25, 1968 in Atakpame, Togo;
(5) US-Visit records listing Bekou’s nationality and birthplace as Togo; and a
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November 7, 2008 memorandum from Bryan Firmin, U.S. Immigration and
Customs Enforcement Deportation Officer stating that “there is no doubt” that
the fingerprints submitted with Bekou’s I-589 Asylum Application match a 2008
sample taken while he was in DHS custody. In contrast, nothing in the record
supports Bekou’s claim that he was born in the United States.
In his petition before this court, Bekou has introduced additional
evidentiary documents, such as college transcripts, receipts for tax preparation
services, a United States Treasury tax return check, and medical records;
however, none of the additional evidence presented is sufficient to establish that
a genuine issue of material fact exists with respect to Bekou’s nationality by
birth. Bekou’s conclusory allegations that he was born in the United States are
insufficient, and “[s]omething more than a fanciful allegation is required . . .
when the moving party has met its burden of demonstrating the absence of any
genuine issue of material fact.” Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d
1017, 1030 (5th Cir. 1983).3 Accordingly, this court shall retain jurisdiction and
determine his claim of citizenship by birth.
When, as in this case, an alien “asks the [g]overnment to endow him with
all the advantages of citizenship[,]” “the burden is on the alien applicant to show
his eligibility for citizenship in every respect.” Berenyi v. Dist. Dir., Immigration
and Naturalization Serv., 385 U.S. 630, 636-37 (1967). Because citizenship,
“once granted, cannot lightly be taken away,” all “doubts ‘should be resolved in
favor of the United States and against the claimant.’” Id. at 637 (citing United
States v. Macintosh, 283 U.S. 605, 625 (1931) overruled on other grounds by
3
The “genuine issue of material fact” standard is analogous to that governing motions
for summary judgment under Fed. R. Civ. P. 56. Agosto v. Immigration and Naturalization
Serv., 436 U.S. 748, 754 (1978). “We may reasonably assume that, in using the language from
Rule 56 as the standard for granting de novo district court hearings on citizenship claims,
Congress intended the language to be interpreted similarly to that in Rule 56.” Id. See also
Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986).
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Girouard v. United States, 328 U.S. 61 (1946)). In addition, “the burden of proof
shall be upon the claimant . . . to establish the claimed citizenship by a
preponderance of the evidence.” 8 C.F.R. § 341.2(c).
Bekou has failed to prove, by a preponderance of the evidence, that he is
a citizen of the United States. We agree with the IJ’s determination that the
evidence points towards the conclusion that Bekou was born in Atakpame, Togo
on March 25, 1968 and therefore not a citizen by birth of the United States.4
For the foregoing reasons, Bekou’s petition for review and claim of United
States citizenship are each hereby DENIED.
4
A person may acquire U.S. citizenship through either birth or naturalization. See
Miller v. Albright, 523 U.S. 420, 423 (1998). Because Bekou has not alleged or provided any
evidence that he is a naturalized U.S. citizen, we will not consider that issue. See Narviz-
Guerra, 148 F.3d at 537 (“All issues not briefed are waived.” (citation omitted)).
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