Junior Ricketts v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3182
_____________
JUNIOR NATHANIEL RICKETTS
a/k/a Junior Mohammed Ricketts
a/k/a Paul Milton Miles,
Appellant
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Appeal from the United States District Court
for the Eastern District of New York
(D.C. No. 1-15-cv-00329)
District Judge: Hon. Margo K. Brodie
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 6, 2018
Before: JORDAN, GREENAWAY, JR., and FISHER,
Circuit Judges
(Filed: July 30, 2018)
_______________
Noah M. Weiss
Williams & Connolly
725 12th Street, N.W.
Washington, DC 20005
Counsel for Appellant
Benjamin M. Moss
Eric R. Quick
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Appellee
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OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
When an alien faces removal under the Immigration
and Nationality Act, one potential defense is that the alien is
not an alien at all but is actually a national of the United
States. 8 U.S.C. § 1252(b)(5). An individual contesting a
final order of removal has the opportunity to raise that
defense in a petition for review and, if it appears to the
appellate court considering the petition that a genuine factual
question exists as to the petitioner’s nationality, that court
must transfer the proceeding to the district court where the
2
petitioner resides, for a nationality determination to be made.
Id. § 1252(b)(5)(B).
This case requires us to address whether an appeal
from a nationality determination following such a transfer
must be taken to the appellate court that typically hears
appeals from the district court making the determination, or
whether jurisdiction lies with the appellate court that
transferred the case to the district court in the first place.
Both parties urge us to conclude that appeals from nationality
determinations made under § 1252(b)(5)(B) must be to the
court of appeals for the circuit that embraces the transferee
district court. We agree. The pertinent statutory language
makes it clear that Congress intended for hearings conducted
pursuant to § 1252(b)(5)(B) to be treated as new proceedings
separate from the underlying petitions for review. We thus
lack jurisdiction to entertain an appeal from a nationality
determination made by the United States District Court for
the Eastern District of New York.
I. BACKGROUND
Junior M. Ricketts petitioned this Court to review the
Board of Immigration Appeals’ denial of his motions to
reopen his removal proceedings, which had resulted in a final
order of removal.1 One of the defenses to removal that
Ricketts has raised is that he is in reality a United States
1
Ricketts has four petitions for review pending before
this Court, which have been consolidated (“consolidated
petitions for review”). See Case Nos. 10-1875, 10-2400, 17-
3298, and 18-1404. We have stayed those cases pending
further order of the Court.
3
citizen. After determining that there were genuine issues of
material fact as to his nationality, we granted a joint motion
by Ricketts and the government to transfer the nationality
dispute to the United States District Court for the Eastern
District of New York – the district where Ricketts resided at
the relevant time – pursuant to 8 U.S.C. § 1252(b)(5)(B), so
that a determination of his nationality could be made.
After the District Court conducted an evidentiary
hearing, it decided that Ricketts had “failed to demonstrate by
a preponderance of the evidence that he is a citizen of the
United States.” Ricketts v. Att’y Gen., No. 15-329, 2016 WL
3676419, at *1 (E.D.N.Y. July 7, 2016). It found instead that
the “evidence overwhelmingly establishe[d]” that he is a
Jamaican national who appropriated the identity of a United
States citizen. Id. at *7.
Of course dissatisfied with the District Court’s
determination, Ricketts filed a notice of appeal, seeking
review by the United States Court of Appeals for the Second
Circuit. The District Court, however, transmitted the appeal
to this Court, not to the Second Circuit. After receiving the
case file from the District Court, our Clerk of Court instructed
the parties to address whether Ricketts’s appeal was properly
transmitted to us or whether the appeal should be transferred
to the Second Circuit. In response, the government filed a
motion to transfer the appeal to the Second Circuit but
requested that we retain jurisdiction over Ricketts’s
consolidated petitions for review. Ricketts also requested that
we transfer his appeal to the Second Circuit.
4
II. DISCUSSION2
Our interpretation of the statutory scheme Congress
created to address disputes over nationality must begin, as
with any matter of statutory interpretation, with the plain text
of the relevant statutes. Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1721 (2017); Cazun v. Att’y Gen., 856
F.3d 249, 255 (3d Cir. 2017). “[O]ur inquiry into the
meaning of [a] statute’s text ceases when the statutory
language is unambiguous and the statutory scheme is
coherent and consistent.” Matal v. Tam, 137 S. Ct. 1744,
1756 (2017) (quotation marks and citation omitted).
Judicial review of a final order of removal is guided by
8 U.S.C. § 1252. Pertinent here is the portion of that statute
regarding a defense to removal based on an assertion that the
petitioner is “a national of the United States.”3 8 U.S.C.
2
The District Court had jurisdiction under 8 U.S.C.
§ 1252(b). Our appellate jurisdiction is the central issue
before us. As always, we have jurisdiction to determine our
own jurisdiction. United States v. Ruiz, 536 U.S. 622, 628
(2002).
3
Ricketts claims to be a U.S. citizen. Citizenship and
nationality are not synonymous. While all citizens are
nationals, not all nationals are citizens. See 8 U.S.C.
§ 1101(a)(22) (“The term ‘national of the United States’
means (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.”). Since citizens are a subset
of nationals, the defense that Ricketts has raised fits within
the statutory defense.
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§ 1252(b)(5). It provides that, if “the court of appeals finds
from the pleadings and affidavits that no genuine issue of
material fact about the petitioner’s nationality is presented,
the court shall decide the nationality claim.” Id.
§ 1252(b)(5)(A). But, if the court “finds that a genuine issue
of material fact [exists as to] the petitioner’s nationality,” it
must “transfer the proceeding to the district court of the
United States for the judicial district in which the petitioner
resides[.]” Id. § 1252(b)(5)(B). The statute then explicitly
instructs that, when a case is transferred from a court of
appeals to a district court pursuant to § 1252(b)(5)(B) for a
nationality determination, the district court must treat the case
“as if an action had been brought in the district court under
[28 U.S.C. § 2201].” Id.
Section 2201 of Title 28 is the Declaratory Judgment
Act, and it states, in relevant part, that “any court of the
United States … may declare the rights and other legal
relations of any interested party seeking such declaration[.]”
28 U.S.C. § 2201(a). Importantly, “[a]ny such declaration
shall have the force and effect of a final judgment or decree
and shall be reviewable as such.” Id. (emphasis added).
Reading together the Declaratory Judgment Act and the
provisions of 8 U.S.C. § 1252(b)(5)(B) pertaining to
nationality determinations shows that Congress intended the
following: (i) a case transferred pursuant to § 1252(b)(5)(B)
for a nationality determination hearing is to be treated by the
transferee district court as a new declaratory judgment action,
(ii) a district court’s nationality determination is to be treated
as a final judgment or decree, and (iii) any challenge to a
district court’s nationality determination is to be reviewable
in the same manner as any other final judgment or decree.
6
Except for limited circumstances not relevant here, all
“appeals from reviewable decisions of the district … courts
shall be taken to the court of appeals … for the circuit
embracing the district[.]” 28 U.S.C. § 1294(1). Accordingly,
the sole appellate court with jurisdiction to entertain an appeal
from a nationality determination made by the United States
District Court for the Eastern District of New York is the
United States Court of Appeals for the Second Circuit. Cf.
Leal Santos v. Mukasey, 516 F.3d 1, 3 & n.4 (1st Cir. 2008)
(reviewing challenge to nationality determination following a
§ 1252(b)(5)(B) transfer from the Third Circuit to the District
of Massachusetts, but noting that “[n]o issue ha[d] been
raised … about … whether [the First Circuit was] the
appropriate court to review the district court’s findings”).
That result comports with the common understanding
of the jurisdictional consequences that flow from other types
of case transfers. Section 1252(b)(5)(B), after all, employs
the word “transfer,” and “[w]e presume that Congress
expresses its intent through the ordinary meaning of the
words it uses.” Del. Cty. v. Fed. Housing Fin. Agency, 747
F.3d 215, 221 (3d Cir. 2014). Courts address the
jurisdictional consequences of a transfer most frequently
when a case has been transferred from one district court to
another pursuant to 28 U.S.C. § 1404. In that context we
have stated clearly that, once a transferor court sends the case
file to the transferee court, “the transferor court—and the
appellate court that has jurisdiction over it—lose all
jurisdiction over the case and may not proceed further with
regard to it.” White v. ABCO Eng’g Corp., 199 F.3d 140, 143
n.4 (3d Cir. 1999) (citation omitted). That basic principle of
appellate jurisdiction stems directly from the territorial
limitation Congress has placed on the courts of appeals’
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jurisdiction in 28 U.S.C. § 1294(1). See In re HealthTrio,
Inc., 653 F.3d 1154, 1162 (10th Cir. 2011) (explaining that
“§ 1294(1) confers jurisdiction in a territorial manner”); cf.
Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc.,
247 F.3d 44, 51 (3d Cir. 2001) (describing § 1294(1) as
conferring jurisdiction).
We acknowledge that the question of appellate
jurisdiction following a § 1404 transfer has caused a split
among our sister courts of appeals. See TechnoSteel, LLC v.
Beers Const. Co., 271 F.3d 151, 154-57 (4th Cir. 2001)
(addressing circuit split). They are not in agreement over
whether the pre-transfer decisions of a transferor court are
reviewable by the court of appeals embracing the transferee
court. Id. That disagreement is not at issue here, however,
because Congress has instructed that § 1252(b)(5)(B)
transfers must be treated as if they were new proceedings
arising under the Declaratory Judgment Act. See 8 U.S.C.
§ 1252(b)(5)(B) (instructing that transfer be treated “as if an
action had been brought in the district court under [the
Declaratory Judgment Act]”); Lopez v. Holder, 563 F.3d 107,
110 (5th Cir. 2009) (explaining that a § 1252(b)(5)(B)
transfer is a “new” proceeding). And in the context of
proceedings under § 1252(b)(5)(B), the only district court to
render a reviewable decision is the transferee district court.
Because in this case the transferee court was the United States
District Court for the Eastern District of New York, and that
court lies within the jurisdiction of the Second Circuit, we
have no power to entertain an appeal of the nationality
determination.4
4
See, e.g., In re Red Barn Motors, Inc., 794 F.3d 481,
484 (5th Cir. 2015) (addressing an appeal from a case that
8
Our decision today may put us at odds with a decision
of the United States Court of Appeals for the Ninth Circuit.
In Demirchyan v. Holder, the court characterized a
§ 1252(b)(5)(B) transfer as a limited remand which did not
require the petitioner challenging a nationality determination
to file a separate notice of appeal. 641 F.3d 1141, 1142-43
(9th Cir. 2011). The Ninth Circuit appears to have rejected
the contention that a court of appeals is deprived of
jurisdiction over a petitioner’s nationality challenge once it
initiates a § 1252(b)(5)(B) transfer. Id. at 1142. It has thus,
perhaps, implicitly rejected one of the premises from which
we are operating, namely that § 1252(b)(5)(B) transfers create
new proceedings. Importantly, however, Demirchyan
involved the more common procedural posture of an intra-
circuit § 1252(b)(5)(B) transfer. Id. Therefore, the Ninth
Circuit, as both the transferor court of appeals and the court
of appeals embracing the district court issuing the ruling, did
not have to grapple with the jurisdictional issue that arises
had been transferred out of the Fifth Circuit and explaining
that “[t]his is not just a case in which no appeal to the Fifth
Circuit has been perfected; instead, it is a proceeding in which
no appeal to this court can be taken”); Mackey v. Shalala, 360
F.3d 463, 467 n.2 (4th Cir. 2004) (explaining that there was
“no authority” that would permit it to “review the decisions”
of an out-of-circuit district court); SongByrd, Inc. v. Estate of
Grossman, 206 F.3d 172, 177 (2d Cir. 2000) (“[A] court of
appeals normally has no jurisdiction to review the decision of
a district court in another circuit[.]”).
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when there is an appeal following an inter-circuit
§ 1252(b)(5)(B) transfer, as is so here.5
For the reasons already explained, there is a
meaningful distinction between § 1252(b)(5)(B) transfers and
limited remands. As to § 1252(b)(5)(B), Congress
constructed a statutory scheme using the term “transfer” and
specifically instructed that such “transfers” be treated as if
they were newly filed declaratory judgment actions. 8 U.S.C.
§ 1252(b)(5)(B). In contrast, a limited remand is a procedural
device created by appellate courts for judicial convenience
and case management to allow a district court to make
“additional findings or explanations.” In re Lipitor Antitrust
Litig., 855 F.3d 126, 151 (3d Cir. 2017) (emphasis added).
Nationality determinations do not involve returning a case to
a district court for additional findings or explanations.
Rather, they require a district court to undertake an
examination of a petitioner’s nationality claim in the first
instance. See Joseph v. Att’y Gen., 421 F.3d 224, 229-30 (3d
Cir. 2005) (explaining that a § 1252(b)(5)(B) transfer results
in a district court conducting a de novo nationality
determination). Moreover, considerations of judicial
convenience and case management do not outweigh
Congressional directions. Accordingly, to the extent
Demirchyan can be read to stand for the proposition that a
court of appeals that initiates a § 1252(b)(5)(B) transfer
5
The United States Court of Appeals for the Second
Circuit has also suggested, in a non-precedential opinion, that
intra-circuit § 1252(b)(5)(B) transfers be treated as limited
remands. See Morales-Santana v. Holder, 529 F. App’x 78,
79-80 (2d Cir. 2013) (treating an intra-circuit § 1252(b)(5)(B)
transfer as a limited remand).
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necessarily retains jurisdiction over any subsequent challenge
to the nationality determination, we respectfully disagree.6
Our conclusion that we lack jurisdiction to entertain
Ricketts’s appeal of the nationality determination made by the
United States District Court for the Eastern District of New
York does not affect our jurisdiction over Ricketts’s
underlying consolidated petitions for review. The
jurisdictional discussion above relates only to the nationality
determination undertaken by the § 1252(b)(5)(B) transferee
district court. The proceedings here and in the circuit court
embracing the transferee district court progress, in effect, on
independent tracks, though it will typically be appropriate for
us to stay an underlying petition for review pending a
nationality determination. Once there is a final resolution of a
petitioner’s nationality claim, the merits of the underlying
petition for review should be ripe for disposition.
We will thus transfer only Ricketts’s nationality appeal
to the United States Court of Appeals for the Second Circuit
pursuant to 28 U.S.C. § 1631.
6
Our holding today does not conflict with Khouzam v.
Attorney General, 549 F.3d 235 (3d Cir. 2008). In Khouzam,
we held that, with respect to jurisdiction over petitions for
review, 8 U.S.C. § 1252(b)(2) “is a non-jurisdictional venue
provision.” 549 F.3d at 249. This case, however, does not
implicate our jurisdiction over a petition for review. Rather,
it implicates only our jurisdiction to entertain an appeal from
a reviewable decision made by an out-of-circuit district court.
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III. CONCLUSION
For the foregoing reasons, the motion to transfer will
be granted and the consolidated petitions for review will
remain stayed pending a final decision on Ricketts’s appeal of
his nationality determination.
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