Nyabwa v. United States ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COLLINS O. NYABWA,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1565
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-01056-MBH, Judge Marian Blank
Horn.
______________________
Decided: June 13, 2017
______________________
COLLINS O. NYABWA, Corpus Christi, TX, pro se.
ALEXANDER ORLANDO CANIZARES, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., DEBORAH A. BYNUM.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
2 NYABWA v. UNITED STATES
PER CURIAM.
Collins O. Nyabwa appeals an order of the United
States Court of Federal Claims (“Claims Court”) dismiss-
ing his case for lack of jurisdiction. We affirm.
BACKGROUND
As alleged in Nyabwa’s complaint, in 2011, Nyabwa
was convicted by a Texas state court of three counts of
“improper photography” under section 21.15(b)(1) of the
Texas Penal Code. After serving his state criminal sen-
tence, Nyabwa was transferred to federal immigration
authorities and detained pending proceedings to remove
him from the country. Nyabwa’s removal proceedings
terminated in 2013, at which point he was released from
federal custody. {J.A. 13}
In 2014, the Texas Court of Criminal Appeals held
that section 21.15(b)(1) was unconstitutional under the
First Amendment. Ex parte Thompson, 442 S.W.3d 325,
351 (Tex. Crim. App. 2014). Relying on this decision, the
United States District Court for the Southern District of
Texas subsequently granted a petition for habeas corpus
filed by Nyabwa and vacated his state criminal convic-
tions. See Nyabwa v. Davis, 2016 WL 4490635, at *1 (S.D.
Tex. Aug. 23, 2016).
Nyabwa proceeded to file a complaint in the Claims
Court seeking damages against the United States pursu-
ant to 28 U.S.C. § 1495, which grants the Claims Court
the power to “render judgment upon any claim for damag-
es by any person unjustly convicted of an offense against
the United States and imprisoned.” The government filed
a motion to dismiss Nyabwa’s complaint for lack of juris-
diction, which the Claims Court granted.
Nyabwa appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3). We review dismissals for lack of
jurisdiction in the Claims Court de novo. Banks v. United
States, 741 F.3d 1268, 1275 (Fed. Cir. 2014).
NYABWA v. UNITED STATES 3
DISCUSSION
Section 1495 authorizes the Claims Court to “render
judgment upon any claim for damages by any person
unjustly convicted of an offense against the United States
and imprisoned.” (emphasis added). The statutory term
“offense against the United States” refers to offenses
defined by substantive federal criminal statutes. 1 Thus,
under section 1495, Nyabwa was required to identify a
criminal conviction (and vacatur thereof) under federal
law. Because his vacated criminal convictions were the
result of Texas state law, they do not suffice.
Nyabwa alleges that he was convicted of a federal of-
fense under 8 U.S.C. § 1227(a)(2)(A)(ii). Although Nyabwa
alleges that he was “convicted of violating” this statute,
J.A. 55, we are not obligated to accept Nyabwa’s legal
characterizations as true for the purpose of his pleadings.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Section
1227 is a federal immigration statute that defines “classes
of deportable aliens.” Relevant to Nyabwa’s detention by
federal officials, subsection (a)(2)(A)(ii) provides that an
alien convicted of “two or more crimes involving moral
turpitude” is subject to removal, while 8 U.S.C. § 1226(c)
requires that the “Attorney General . . . take into custody
1 See Viereck v. United States, 318 U.S 236, 241
(1943) (“One may be subjected to punishment for crime in
the federal courts only for the commission or omission of
an act defined by statute, or by regulation having legisla-
tive authority, and then only if punishment is authorized
by Congress.”); see also, e.g., United States v. Gibson, 881
F.2d 318, 321 (6th Cir. 1989) (“It has long been estab-
lished that the words ‘offense against the United States’
encompass all offenses against the laws of the United
States . . . .” (emphasis added)) (citing Thomas v. United
States, 156 F. 897, 901 (8th Cir. 1907), and Radin v.
United States, 189 F. 568, 571 (2d Cir. 1911)).
4 NYABWA v. UNITED STATES
any alien . . . deportable by reason of having committed
any offense covered in section 1227(a)(2)(A)(ii).” In other
words, Nyabwa’s state convictions made him subject to
federal deportation proceedings, and such proceedings
were initiated, and Nyabwa was detained under the
statute. But it is well established that deportation pro-
ceedings are civil—not criminal—in nature. See, e.g., INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A depor-
tation proceeding is a purely civil action to determine
eligibility to remain in this country, not to punish an
unlawful entry, though entering or remaining unlawfully
in this country is itself a crime.” (emphasis added)). Thus,
immigration detention pursuant to sections
1227(a)(2)(A)(ii) and 1226(c) cannot constitute an “offense
against the United States” under section 1495.
However, we think the Claims Court erred in dismiss-
ing Nyabwa’s complaint for lack of jurisdiction. Instead,
the dismissal of Nyabwa’s complaint is better framed as
one predicated on his failure to state a claim. See, e.g.,
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90
(1998); Fisher v. United States, 402 F.3d 1167, 1171 (Fed.
Cir. 2005) (en banc).
AFFIRMED
COSTS
No costs.