Okafor v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 21, 2006
IN THE UNITED STATES COURT OF APPEALS July 18, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 05-60001
_____________________
CELESTINE IFEANACH OKAFOR
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before KING, STEWART, and DENNIS, Circuit Judges.
KING, Circuit Judge:
Celestine Okafor petitions this court for review of a
decision of the Attorney General reversing a previous decision of
the Board of Immigration Appeals. For the reasons stated below,
we DENY the petition.
I. BACKGROUND
Petitioner Celestine Okafor (“Okafor”), a native of Nigeria,
entered the United States in 1990 and subsequently became a
lawful permanent resident as a result of his marriage to a United
States citizen. He applied for naturalization in 1994. On March
31, 1995, Okafor was interviewed by an INS officer about the
information in his application for naturalization. During or
after the interview, Okafor signed a document containing the oath
of renunciation and allegiance required of all applicants for
naturalization. After the interview, the INS officer recommended
the approval of Okafor’s naturalization application; however,
Okafor never participated in a public oath ceremony and never
received a certificate of naturalization. According to 8 U.S.C.
§ 1448(a), “[a] person who has applied for naturalization shall,
in order to be and before being admitted to citizenship, take in
a public ceremony before the Attorney General or a court with
jurisdiction under section 1421(b) of this title an oath”
pledging allegiance to the United States and renouncing all
former allegiances to foreign states and sovereignties.
On November 7, 1997, Okafor was convicted of conspiracies to
commit mail fraud, wire fraud, and money laundering. After his
conviction, the Immigration and Naturalization Service (“INS”)
charged Okafor with removability as an alien convicted of an
aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).
Following a hearing, on March 1, 2000, an immigration judge
(“IJ”) found Okafor removable as charged and issued an order
directing that Okafor be removed to Nigeria. In this order, the
IJ rejected Okafor’s claim that he was a naturalized U.S.
citizen, concluding that Okafor could not have been fully
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naturalized because he never took the required oath of
renunciation and allegiance in an administrative or court
ceremony.
Okafor appealed from this decision to the Board of
Immigration Appeals (“BIA”). On November 14, 2000, the BIA
accepted Okafor’s arguments that the signed oath form satisfied
the public oath ceremony requirement of 8 U.S.C. § 1448(a).
More specifically, the BIA found that Okafor’s signed copy of the
printed oath demonstrated that the oath “was administered to him
by the [INS] at the time of his naturalization interview.”
Therefore, the BIA concluded that Okafor had successfully
completed the naturalization process, and it ordered the removal
proceedings to be terminated.
The INS then filed a motion for reconsideration and a motion
to reopen with the BIA, and the BIA denied these motions on March
30, 2001. In this second decision, the BIA reiterated its “prior
conclusion that [Okafor] had been naturalized as a United States
citizen,” stating that the INS had “naturalized the respondent by
recommending him for naturalization and administering the oath in
writing . . . . in accordance with the evidence of record.”
On July 25, 2002, the BIA’s initial decision was referred to
the Attorney General for review. On December 1, 2004, the
Attorney General delivered his opinion, reversing the BIA’s
finding and ruling that Okafor was not a naturalized citizen
because he had not satisfied the public ceremony requirements of
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8 U.S.C. § 1448(a). After reviewing the record, the BIA opinion,
and the relevant statutes and regulations, the Attorney General
held that nothing “excused [Okafor] from the requirement that he
‘take [the oath] in a public ceremony.’” The Attorney General
also noted that the INS officer who interviewed Okafor stated
“that it was the practice of his office” to require all
applicants for naturalization to “sign a copy of the oath at the
conclusion of the interviews in order to save time at the
subsequent public ceremony and that the office informed all
applicants that they would not become citizens until they took
the oath at the ceremony.” Accordingly, the Attorney General
concluded that Okafor “did not meet the requirements for becoming
a naturalized citizen of the United States” and reversed the
BIA’s decision.
In accordance with the Attorney General’s decision, on
December 20, 2004, the BIA vacated its two prior decisions,
dismissed Okafor’s appeal, and reinstated the IJ’s prior order of
removal. Okafor filed his petition for review with this court on
January 3, 2005. On April 14, 2005, Okafor was removed to
Nigeria.
II. DISCUSSION
Our jurisdiction over this petition is governed by 8 U.S.C.
§ 1252, as modified by the REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231. Under § 1252(a)(2)(C), “no court shall have
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jurisdiction to review any final order of removal against an
alien” such as Okafor “who is removable by reason of having
committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii) . . . of this title . . . .” However, this
general jurisdictional bar must be measured against
§ 1252(a)(2)(D), which states that § 1252(a)(2)(C) shall not “be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.”
The government claims that Okafor has failed to raise any
constitutional claims or questions of law in his petition for
review with this court, and therefore, the government suggests
that our jurisdiction over Okafor’s petition is precluded by the
general jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C). But
contrary to the government’s jurisdictional argument, this
petition presents a question of law rather than a question of
fact because both sides agree about the underlying factual
sequence and disagree only about the legal significance of those
facts: Okafor argues that the signing of the oath form satisfied
the public ceremony requirements of 8 U.S.C. § 1448(a); the
government disagrees, and argues that § 1448(a) requires a
separate public oath ceremony. Accordingly, because Okafor has
raised a legal question of first impression before this court, we
have jurisdiction to review his petition pursuant to
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§ 1252(a)(2)(D). Cf. Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d
1350, 1351-52 (11th Cir. 2005) (per curiam) (ruling that the
Eleventh Circuit had jurisdiction over a near-identical petition
because the petitioner had presented a question of law).
In the alternative, the government suggests that we should
adopt the reasoning of the Eleventh Circuit in Tovar-Alvarez and
deny Okafor’s petition for review. In Tovar-Alvarez, the
Eleventh Circuit considered a petition for review from an alien
who, like Okafor, was removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). Also like Okafor, the alien petitioner in
Tovar-Alvarez argued “that he became an American citizen” and was
therefore exempt from subsequent removal “when he signed [an]
oath vowing allegiance to the United States in the presence of an
INS officer during his naturalization interview.” Tovar-Alvarez,
427 F.3d at 1352. The Eleventh Circuit rejected this argument
and held that by relying on the signed oath form, the petitioner
“failed to show that he has taken the oath of allegiance during a
public ceremony” as required by 8 U.S.C. § 1448(a). Id. at 1353.
Because the petitioner had not participated in a public ceremony
as required by statute, the Eleventh Circuit concluded that he
had “not satisfied the statutory prerequisites of citizenship[,]”
and it denied his petition for review. Id.
The Eleventh Circuit’s conclusion in Tovar-Alvarez is
supported by the Ninth Circuit’s similar reasoning in Perdomo-
Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003). In Perdomo-
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Padilla, the Ninth Circuit considered a petition for review from
an alien who, like Okafor and like the petitioner in Tovar-
Alvarez, was under an order of removal pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). The petitioner in Perdomo-Padilla argued
that he became a United States national--and was thereby exempt
from subsequent removal--when “he completed an application for
naturalization that contained a statement of allegiance to the
United States.” Perdomo-Padilla, 333 F.3d at 966. In
considering this argument, the Ninth Circuit observed that under
the petitioner’s interpretation of the governing statutes,
“rejected naturalization applicants who do not renounce their
statements of allegiance . . . . would not be aliens and,
accordingly, would not be removable under 8 U.S.C. § 1227
(providing only for the removal of ‘aliens’).” Id. at 969.
Concluding that Congress “clearly did not intend” such an “absurd
result[,]” the Ninth Circuit rejected this argument and denied
the petition for review. Id.
We agree with the government that Okafor’s petition presents
issues nearly identical to those considered by the Eleventh
Circuit in Tovar-Alvarez, and we are persuaded by the reasoning
of that court and by the reasoning of the Ninth Circuit in
Perdomo-Padilla. In arguing that his signed oath form satisfied
the public ceremony requirement of 8 U.S.C. § 1448(a), Okafor
presents an interpretation contrary to the clear language of the
statute which might create unnecessary obstacles to the removal
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of appropriately rejected naturalization applicants. Because
Okafor has failed to show that his signed oath form met the
statutory requirement of a public oath ceremony, he has failed to
show that he met the requirements for becoming a naturalized
citizen of the United States.
III. CONCLUSION
For the reasons stated above, Okafor’s petition for review
is DENIED.
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