Neil Sean Fagan v. USA

USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13524
Non-Argument Calendar
____________________
NEIL SEAN FAGAN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
WARDEN, STEWART DETENTION CENTER,
ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE,
SECRETARY, U.S. DEPT. OF HOMELAND
SECURITY,
FIELD OFFICE DIRECTOR, ATLANTA
DISTRICT FIELD OFFICE,
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 2 of 7
2 Opinion of the Court 21-13524
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:19-cv-00349-WTM-CLR
____________________
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Neil Sean Fagan appeals the district court’s dismissal of his
28 U.S.C. § 2241 habeas corpus petition for lack of subject-matter
jurisdiction. Because Fagan sought review of issues decided in his
removal proceeding—specifically, whether he is a U.S. citizen—the
sole and exclusive means for judicial review is through his petition
for review. 1 We affirm the dismissal of his petition.
I.
The relevant background is largely undisputed. Fagan was
born in Jamaica in 1969 and immigrated to the United States with
1 Fagan’s petition for review of the underlying removal order is docketed with
this Court as appeal No. 20-10239. In December 2022, we transferred the pro-
ceeding to the district court for a de novo hearing on Fagan’s nationality claim,
in accordance with 8 U.S.C. § 1252(b)(5). Fagan v. U.S. Att’y Gen., No. 20-
10239 (11th Cir. Dec. 15, 2022).
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 3 of 7
21-13524 Opinion of the Court 3
his mother in 1974. His mother became a citizen in 1986, and he
became a lawful permanent resident in 1988.
In 2012, Fagan was convicted of one count of conspiracy to
commit wire and mail fraud and four counts of mail fraud. He was
sentenced to 90 months of imprisonment and three years of super-
vised release.
A.
In 2018, the government brought a proceeding to remove
Fagan based on his fraud convictions, and he was placed in immi-
gration custody. Fagan moved to terminate and otherwise de-
fended the removal proceeding on the ground that he was a U.S.
citizen, allegedly having acquired derivative citizenship through his
mother’s naturalization.
After multiple hearings, the Immigration Judge (“IJ”) found
that Fagan did not obtain derivative citizenship because he did not
become a lawful permanent resident before his eighteenth birth-
day. The IJ denied Fagan’s motions to terminate and ordered him
removed to Jamaica for having committed two or more crimes in-
volving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). The
Board of Immigration Appeals (“BIA”) affirmed the IJ’s decisions
and dismissed Fagan’s appeal in December 2019.
Fagan timely filed a petition for review of the BIA’s decision.
We stayed removal and then, on December 15, 2022, we trans-
ferred the proceeding to the district court for a de novo hearing on
Fagan’s nationality claim, pursuant to 8 U.S.C. § 1252(b)(5)(B),
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 4 of 7
4 Opinion of the Court 21-13524
finding that there was a “genuine dispute of material fact as to Mr.
Fagan’s claim of citizenship.” Fagan v. U.S. Att’y Gen., No. 20-
10239 (11th Cir. Dec. 15, 2022). We held the petition for review in
abeyance pending the resolution of the nationality claim.
B.
Meanwhile, shortly after the BIA’s adverse decision in De-
cember 2019, Fagan filed a 28 U.S.C. § 2241 petition for a writ of
habeas corpus in federal district court. In the petition, which is the
subject of this appeal, Fagan alleged that his immigration detention
was unlawful because he was a U.S. citizen and because the gov-
ernment failed to meet its burden of proof and misrepresented or
concealed facts in the removal proceeding. It does not appear Fa-
gan’s § 2241 petition raised any claim distinct from his nationality
claim. Among other relief, he sought injunctions barring his re-
moval and releasing him from custody, and a declaration that he
was a U.S. citizen. It appears Fagan was released from custody in
November 2020.
The district court granted the government’s motion to dis-
miss the petition for lack of subject-matter jurisdiction in Septem-
ber 2021. The court explained that judicial review of legal and con-
stitutional errors in a removal order was, by statute, within the ex-
clusive jurisdiction of the courts of appeals. So, the court stated, it
lacked jurisdiction to review issues “intrinsically linked” to the re-
moval proceeding, such as Fagan’s nationality claim. Fagan timely
appealed.
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 5 of 7
21-13524 Opinion of the Court 5
II.
We review questions of subject-matter jurisdiction de novo.
Amodeo v. FCC Coleman-Low Warden, 984 F.3d 992, 996 (11th
Cir. 2021). The burden of establishing subject-matter jurisdiction
rests on the party asserting jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Since the passage of the REAL ID Act in 2005, “a petition for
review filed with the appropriate court is now [a non-citizen’s] ex-
clusive means of review of a removal order.” Alexandre v. U.S.
Att’y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006); see 8 U.S.C. §
1252(a)(5). Through the REAL ID Act, Congress expanded the ju-
risdiction of courts of appeals “to review all legal and constitutional
errors in a removal order,” but it precluded “habeas corpus relief”
in the district courts under § 2241. See Alexandre, 452 F.3d at 1206;
see Balogun v. U.S. Att’y Gen., 425 F.3d 1356, 1360 (11th Cir. 2005)
(“The provisions of 28 U.S.C. § 2241(a) no longer play any role in
immigration cases.”). Thus, district courts generally lack jurisdic-
tion to review “all questions of law and fact . . . arising from any
action taken or proceeding brought to remove” a noncitizen. 8
U.S.C. § 1252(b)(9). Rather, review of such questions “shall be
available only in judicial review of a final order” of removal in the
appropriate court of appeals. Id.Here, the district court correctly found that it lacked juris-
diction over Fagan’s § 2241 habeas corpus petition, which rested on
his claim to U.S. citizenship. Fagan raised his potential U.S. citizen-
ship as a defense to removal stemming from the fraud convictions,
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 6 of 7
6 Opinion of the Court 21-13524
and the IJ and BIA ordered his removal only after rejecting this na-
tionality claim. “[B]ecause the issue of [Fagan’s] citizenship arose
in his removal proceedings, his petition for review, not his habeas
corpus petition, is the proper means of seeking redress.” Johnson
v. Whitehead, 647 F.3d 120, 124 (4th Cir. 2011).
Our remand in Fagan’s other appeal, No. 20-12039, confirms
that his petition for review is the proper and exclusive means of
seeking redress based on his nationality claim. Section 1252(b)(5)
expressly provides that “nationality claim[s]” are covered by peti-
tions for judicial review of removal orders. Under §1252(b)(5)(B),
If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine
issue of material fact about the petitioner’s nationality
is presented, the court shall transfer the proceeding to
the district court of the United States for the judicial
district in which the petitioner resides for a new hear-
ing on the nationality claim and a decision on that
claim as if an action had been brought in the district
court under section 2201 of Title 28.
“The petitioner may have such nationality claim decided only as
provided in this paragraph”—that is, only by a petition for review,
not by a § 2241 petition. 8 U.S.C. § 1252(b)(5)(C) (emphasis added).
Fagan’s argument for judicial review in this case is unpersua-
sive. He maintains that jurisdiction existed based on 8 U.S.C. §
1252(e). That statute governs judicial review of expedited removal
USCA11 Case: 21-13524 Document: 56-1 Date Filed: 03/28/2023 Page: 7 of 7
21-13524 Opinion of the Court 7
orders entered under 8 U.S.C. § 1225(b)(1), and it carves out a lim-
ited role for habeas corpus review, including “whether the peti-
tioner is an alien.” See 8 U.S.C. § 1252(e)(2)(A).
But those provisions do not apply here. Section 1225(b)(1)
permits immigration officers to enter expedited removal orders
against certain inadmissible noncitizens who do not seek asylum or
withholding of removal. 8 U.S.C. § 1225(b)(1)(A)(i); see Dep’t of
Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964–65 (2020).
Here, though, there is no indication that Fagan has ever been sub-
ject to an expedited removal order under § 1225(b)(1). The only
removal order in the record was entered under the ordinary proce-
dures for a lawful permanent resident. And so, the ordinary limi-
tations on judicial review apply. See 8 U.S.C. §1252(a)(5), (b)(9).
To be clear, the dismissal of this case in no way limits Fa-
gan’s ability to obtain judicial review of his nationality claim. In
fact, it appears he will receive a judicial determination of citizen-
ship after a de novo hearing in the district court stemming from his
petition for review. See 8 U.S.C. § 1252(b)(5). But that proceeding
only reinforces that Fagan’s “petition for review, not his habeas
corpus petition, is the proper means of seeking redress” based on
his nationality claim. Johnson, 647 F.3d at 124.
For these reasons, we affirm the dismissal of Fagan’s § 2241
petition for lack of jurisdiction.
AFFIRMED.