Jermaine Thomas v. Loretta Lynch

Case: 14-60297 Document: 00513168473 Page: 1 Date Filed: 08/25/2015
REVISED AUGUST 25, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 14-60297 August 7, 2015
Lyle W. Cayce
Clerk
JERMAINE AMANI THOMAS, also known as Jermaine Thomas,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before KING, SMITH, and ELROD, Circuit Judges.
KING, Circuit Judge:
Jermaine Amani Thomas petitions for review of an order that he be
removed from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and
(iii). Thomas, who was born on a United States military base located in what
is now Germany, argues that he is not removable because he is a United States
citizen by virtue of the Fourteenth Amendment. For the following reasons, we
DENY the petition for review.
Case: 14-60297 Document: 00513168473 Page: 2 Date Filed: 08/25/2015
No. 14-60297
I. BACKGROUND
Petitioner Jermaine Amani Thomas was born on August 9, 1986, in a
military hospital located on a U.S. military base in Frankfurt, Germany.
Thomas’s father, a United States citizen, was a member of the United States
military serving on the base. Thomas’s father first entered the United States
in September 1977, enlisted in the United States Army in 1979, and became a
United States citizen in May 1984. Thomas’s mother was a citizen of Kenya.
Thomas was admitted to the United States as a lawful permanent resident in
July 1989. His visa form listed his nationality as Jamaican.
In 2013, the Department of Homeland Security issued Thomas a Notice
to Appear and Additional Charges of Inadmissibility/Deportability. The
Additional Charges notice alleged that Thomas was a citizen of Jamaica and
had three criminal convictions in the United States. It also stated that Thomas
was subject to deportation or removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)
because he had been convicted of an aggravated felony; 8 U.S.C. §
1227(a)(2)(E)(i) because he had been convicted of a crime of domestic violence;
and 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two or more
crimes involving moral turpitude.
At a hearing before an Immigration Judge (“IJ”) on December 12, 2013,
Thomas conceded that, if he is not a United States citizen, he is removable
based on his aggravated felony and domestic violence convictions. The only
relief sought by Thomas before the IJ was a declaration that he is a United
States citizen and the termination of removal proceedings. The IJ found that
Thomas’s birth in Germany gave rise to a rebuttable presumption of alienage.
The IJ determined that based on the Department of State Foreign Affairs
Manual (FAM), as well as the plain language of 8 U.S.C. § 1401(a) and the
Constitution, the military base on which Thomas was born was not part of the
United States for purposes of the Fourteenth Amendment. Accordingly, the IJ
2
Case: 14-60297 Document: 00513168473 Page: 3 Date Filed: 08/25/2015
No. 14-60297
concluded that Thomas had failed to rebut the presumption of alienage. The
IJ further found that Thomas was a citizen of Jamaica, and designated
Jamaica as the country for removal. Finally, the IJ ordered Thomas removed
pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii).
Thomas appealed the IJ’s order to the Board of Immigration Appeals (the
“BIA”). The BIA agreed with the IJ that Thomas’s birth at the military hospital
in Germany, to only one United States citizen parent, gave rise to a rebuttable
presumption of alienage. The BIA rejected Thomas’s claim that his birth on a
military base in Germany rendered him a birthright citizen by virtue of the
Fourteenth Amendment. Therefore, the BIA concluded that Thomas was
removable and it dismissed the appeal. On April 22, 2014, Thomas filed a
timely petition for review in this court.
II. STANDARD OF REVIEW
Generally, this court does not have jurisdiction to review a final order of
removal entered against an alien who has been convicted of certain offenses,
including aggravated felonies, or who has multiple convictions for crimes
involving moral turpitude. 8 U.S.C. § 1252(a)(2)(C); see Ogunfuye v. Holder,
610 F.3d 303, 307 (5th Cir. 2010) (explaining that this court is stripped “of
jurisdiction to review a final order of removal entered against an alien
convicted of certain criminal offenses, including aggravated felonies”).
However, in such cases, this court retains jurisdiction to review constitutional
claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); see Marquez-Marquez v.
Gonzales, 455 F.3d 548, 560–61 (5th Cir. 2006). If a “petitioner claims to be a
national of the United States and 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.” 8 U.S.C.
§ 1252(b)(5)(A). Thomas’s constitutional claim is afforded de novo review.
Danso v. Gonzales, 489 F.3d 709, 712 (5th Cir. 2007).
3
Case: 14-60297 Document: 00513168473 Page: 4 Date Filed: 08/25/2015
No. 14-60297
III. DISCUSSION
This case requires us to determine whether a United States military base
located within what is now Germany was “in the United States” for purposes
of the Fourteenth Amendment. The answer to this question is decisive because
the Fourteenth Amendment grants birthright citizenship to “[a]ll persons born
. . . in the United States, and subject to the jurisdiction thereof.” U.S. Const.
amend. XIV, § 1; see also Schneider v. Rusk, 377 U.S. 163, 166 (1964)
(explaining that “the rights of citizenship of the native born derive from § 1 of
the Fourteenth Amendment”). If Thomas derived birthright citizenship from
the Fourteenth Amendment, we must grant his petition for review because
only aliens can be deported. See 8 U.S.C. § 1227(a). If he is in fact not a citizen,
the petition for review must be denied because it is undisputed that he is
otherwise deportable as an aggravated felon. See 8 U.S.C. § 1227(a)(2)(A)(iii).
After a careful review of the decisions of the Supreme Court, other circuit
courts of appeals, and our own court, we hold that Thomas is not a citizen,
because the United States military base where he was born, which is located
in modern-day Germany, was not “in the United States” for purposes of the
Fourteenth Amendment.
“There are two sources of citizenship, and two only: birth and
naturalization.” Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir.
2006) (internal quotation marks omitted). “Within the former category, the
Fourteenth Amendment of the Constitution guarantees that every person ‘born
in the United States, and subject to the jurisdiction thereof, becomes at once a
citizen of the United States, and needs no naturalization.’” Miller v. Albright,
523 U.S. 420, 423–24 (1998) (quoting United States v. Wong Kim Ark, 169 U.S.
649, 702 (1898)). “Persons not born in the United States acquire citizenship by
birth only as provided by Acts of Congress.” Id. At the time of Thomas’s birth,
Congress extended birthright citizenship to children born abroad to one citizen
4
Case: 14-60297 Document: 00513168473 Page: 5 Date Filed: 08/25/2015
No. 14-60297
parent and one alien parent, as long as the citizen parent met certain physical-
presence requirements. See 8 U.S.C. § 1401(g) (1982), amended by Pub. L. No.
99–653, § 12, 100 Stat. 3655, 3657 (Nov. 14, 1986). Thomas was born on a
United States military base located within the territorial boundaries of
modern-day Germany. His father was a naturalized United States citizen
serving in the United States military and his mother was an alien. However,
it is undisputed that Thomas was not a statutory birthright citizen because his
father did not meet the physical presence requirement of the statute in force
at the time of Thomas’s birth. 1 Id. Consequently, Thomas must rely on the
Fourteenth Amendment, which provides, in relevant part, that “[a]ll persons
born . . . in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside,” U.S. Const.
amend. XIV, § 1, to sustain his claim that he is a birthright citizen. Thomas
contends that the military base located in modern-day Germany where he was
born was “in the United States” for purposes of the Fourteenth Amendment.
We disagree.
We have not previously decided whether a military base located abroad
qualifies as “in the United States” for Fourteenth Amendment purposes.
However, we have addressed whether a person derived United States
citizenship from his parents, who he claimed “became United States citizens
at birth because they were born in the Philippines when the country was a
1 The version of 8 U.S.C. § 1401(g) in effect at the time of Thomas’s birth required his
father to have at least ten years of physical presence in the United States for Thomas to
acquire citizenship through that statutory vehicle. 8 U.S.C. § 1401(g) (1982); see United
States v. Duron-Caldera, 737 F.3d 988, 990 n.1 (5th Cir. 2013) (“Derivative citizenship is
determined under the law in effect at the time of the child’s birth.”). The statute counted
time spent abroad in the military towards the ten year physical presence requirement. 8
U.S.C. § 1401(g) (1982). Congress amended the statute in 1986 to decrease the requisite U.S.
presence or service, but only after Thomas’s birth. See An Act to amend the Immigration and
Nationality Act, and for other purposes, Pub. L. No. 99–653, § 12, 100 Stat. 3655, 3657 (Nov.
14, 1986).
5
Case: 14-60297 Document: 00513168473 Page: 6 Date Filed: 08/25/2015
No. 14-60297
United States territory.” Nolos v. Holder, 611 F.3d 279, 282 (5th Cir. 2010)
(per curiam). In that case, we were required to determine whether the
Philippines was “in the United States” for Fourteenth Amendment purposes.
Id. at 282. For guidance, we looked to the Second, Third and Ninth Circuits,
which had previously “held that birth in the Philippines at a time when the
country was a territory of the United States does not constitute birth ‘in the
United States’ under the Citizenship Clause, and thus did not give rise to
United States citizenship.” Id. (citing Lacap v. INS, 138 F.3d 518, 518–19 (3d
Cir. 1998); Valmonte v. INS, 136 F.3d 914, 915–21 (2d Cir. 1998); Rabang v.
INS, 35 F.3d 1449, 1450–54 (9th Cir. 1994)). 2 Underlying those circuits’
conclusion was the recognition that “the Citizenship Clause of the Fourteenth
Amendment did not, without more, include United States territories simply
because the territories were subject to the jurisdiction or within the dominion
of the United States.” Id. (internal quotation marks and brackets omitted).
“In reaching their holdings, the courts found guidance from the Supreme
Court’s Insular Cases jurisprudence on the territorial scope of the term ‘the
United States’ as used in the Citizenship Clause of the Fourteenth
Amendment.” Id. (citing Valmonte, 136 F.3d at 918–19; Rabang, 35 F.3d at
1452). 3 In the Insular Cases, the Supreme Court “created the doctrine of
2 In Rabang, Judge Pregerson dissented from the majority opinion. Judge Pregerson
opined that the common law rule of dominion and the original intent of the authors of the
Fourteenth Amendment led to the conclusion that persons born in the Philippines during the
territorial period were born “in the United States” within the meaning of the Fourteenth
Amendment. Rabang, 35 F.3d at 1454–66 (Pregerson, J., dissenting).
3 The Insular Cases were a series of Supreme Court opinions that “addressed whether
the Constitution, by its own force, applies in any territory that is not a State.” Boumediene
v. Bush, 553 U.S. 723, 756 (2008). “The ‘Insular Cases,’ which arose at the turn of the century,
involved territories which had only recently been conquered or acquired by the United
States.” Reid v. Covert, 354 U.S. 1, 13 (1957). The Supreme Court ruled “that certain
constitutional safeguards were not applicable to these territories since they had not been
expressly or impliedly incorporated into the Union by Congress.” Id. (internal quotation
marks omitted).
6
Case: 14-60297 Document: 00513168473 Page: 7 Date Filed: 08/25/2015
No. 14-60297
incorporated and unincorporated Territories.” Examining Bd. of Eng’rs,
Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 599 n.30 (1976).
Incorporated Territories “encompassed those Territories destined for statehood
from the time of acquisition, and the Constitution was applied to them with
full force,” while unincorporated Territories were not destined for statehood
and only “fundamental constitutional rights were guaranteed to the
inhabitants.” Id. (internal quotation marks omitted). As relevant here, the
Court’s decision in Downes v. Bidwell, 182 U.S. 244 (1901), one of the Insular
Cases, “was derived in part by analyzing the territorial scope of the Thirteenth
and Fourteenth Amendments.” Valmonte, 136 F.3d at 918. In Downes, the
Court held that Puerto Rico was “not a part of the United States within the
revenue clauses of the Constitution.” Downes, 182 U.S. at 287. The Court
noted that the Thirteenth Amendment prohibits slavery and involuntary
servitude “within the United States, or any place subject to their jurisdiction.”
Id. at 251 (quoting U.S. Const. amend. XIII, § 1 (emphasis added)). The
“disjunctive ‘or’ in the Thirteenth Amendment demonstrates that ‘there may
be places within the jurisdiction of the United States that are no[t] part of the
Union’ to which the Thirteenth Amendment would apply.” Valmonte, 136 F.3d
at 919 (quoting Downes, 182 U.S. at 251).
Conversely, the Fourteenth Amendment “is not extended to persons born
in any place ‘subject to [the United States’] jurisdiction.’” Downes, 182 U.S. at
251. Instead, citizenship under the Fourteenth Amendment is “limited to those
born or naturalized in the states of the Union.” Nolos, 611 F.3d at 283 (citing
Rabang, 35 F.3d at 1452–53). In fact, the Citizenship Clause of the Fourteenth
Amendment, like the Revenue Clause, “‘has an express territorial limitation
which prevents its extension to every place over which the government
exercises its sovereignty.’” Id. (quoting Rabang, 35 F.3d at 1453). Therefore,
we held that “‘[i]t is . . . incorrect to extend citizenship to persons living in
7
Case: 14-60297 Document: 00513168473 Page: 8 Date Filed: 08/25/2015
No. 14-60297
United States territories simply because the territories are subject to the
jurisdiction or within the dominion of the United States, because those persons
are not born “in the United States” within the meaning of the Fourteenth
Amendment.’” Id. at 283–84 (alteration in original) (internal quotation marks
omitted) (quoting Valmonte, 126 F.3d at 920); see also Rabang, 35 F.3d at 1453;
Lacap, 138 F.3d at 519. 4 We are bound by our decision in Nolos.
Accordingly, regardless of whether the treaties applicable to the military
base in which Thomas was born rendered it “subject to the jurisdiction or
within the dominion of the United States,” such a base was not “in the United
States” for purposes of the Fourteenth Amendment. See id. at 283–84 (internal
quotation marks omitted) (citing Valmonte, 126 F.3d at 920; Rabang, 35 F.3d
at 1453; Lacap, 138 F.3d at 519). 5 Having already determined that the
Philippines, which was “under the complete and absolute sovereignty and
dominion of the United States” during its time as a United States territory,
The Diamond Rings, 183 U.S. 176, 179 (1901), was not “in the United States”
for Fourteenth Amendment purposes, we decline to hold that a military base
located in Germany qualifies as such, Nolos, 611 F.3d at 284; see also Friedrich
v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1983) (explaining that a different
military base in Germany “is not sovereign territory of the United States”);
4 The Supreme Court has previously assumed that persons born in the Philippines at
the time the Philippines was a territory of the United States were not United States citizens.
See Rabang v. Boyd, 353 U.S. 427, 432 n.12 (1957) (“The inhabitants of the islands acquired
by the United States during the late war with Spain, not being citizens of the United States,
do not possess the right of free entry into the United States.” (internal citation and quotation
marks omitted)).
5 In an unpublished opinion, the Third Circuit considered a petitioner’s argument that
his mother was a United States citizen because she “was born in Guantanamo Bay, Cuba,
which he asserts is a sovereign territory of the United States.” Williams v. Attorney General
of the United States, 458 F. App’x 148, 152 (3d Cir. 2012) (unpublished) (per curiam). The
Williams court noted that “the Department of State’s Foreign Affairs Manual provides that
military installations are not part of the United States within the meaning of the Fourteenth
Amendment.” Id. Accordingly, it held that the petitioner’s mother was not a citizen by birth.
Id.8
Case: 14-60297 Document: 00513168473 Page: 9 Date Filed: 08/25/2015
No. 14-60297
Rabang, 35 F.3d at 1452 (“In the Insular Cases the Supreme Court decided
that the territorial scope of the phrase ‘the United States’ as used in the
Constitution is limited to the states of the Union.” (footnote omitted)). As we
held in Nolos, the Fourteenth Amendment’s grant of birthright citizenship
contains an express geographical limitation, which does not encompass the
military base where Thomas was born. Accordingly, because Thomas was not
born “in the United States” for purposes of the Fourteenth Amendment, he is
not a birthright citizen. 6
Furthermore, scholars who have addressed the issue agree that
“contrary to popular belief, birth in . . . United States military facilities, does
not result in United States citizenship in the absence of another basis for
citizenship.” 7 Sarah Helene Duggin & Mary Beth Collins, ‘Natural Born’ in
the USA: The Striking Unfairness and Dangerous Ambiguity of the
Constitution’s Presidential Qualifications Clause and Why We Need to Fix It,
85 B.U. L. Rev. 53, 103 (2005); see also Charles Gordon et al., Immigration Law
and Procedure § 92.03(d) (rev. ed. 2010) (“The far-flung foreign interest and
operations of the United States . . . may also raise questions concerning the
status of children born in U.S. installations in foreign countries. It seems quite
clear that such installations cannot be regarded as part of the United States
for purposes of the Fourteenth Amendment . . . .”); Allan Erbsen, Constitutional
6 Even though, as we held in Nolos, the Fourteenth Amendment contains a territorial
limitation, Congress may extend birthright citizenship to individuals born outside of the
territorial United States. See Miller, 523 U.S. at 424 (“Persons not born in the United States
acquire citizenship by birth only as provided by Acts of Congress.”). Congress has provided
for birthright citizenship for individuals born abroad to one United States citizen parent. See
8 U.S.C. § 1401(g). However, as explained above, Thomas did not qualify for the statutory
grant of birthright citizenship applicable at the time of his birth.
7 We acknowledge that some scholars have argued that the Fourteenth Amendment
confers citizenship on certain individuals born outside the territorial United States. See, e.g.,
Lawrence Tribe and Theodore Olson, The ‘Natural Born Citizen’ Memo, (Mar. 19, 2008);
Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government
by the United States of Island Territory, 12 Harv. L. Rev. 393, 406 (1899).
9
Case: 14-60297 Document: 00513168473 Page: 10 Date Filed: 08/25/2015
No. 14-60297
Spaces, 95 Minn. L. Rev. 1168, 1195 n.101 (2011) (“Few commentators have
considered whether birth on a U.S. military base located within a foreign
country would constitute birth ‘in’ the United States for purposes of the
Fourteenth Amendment. The consensus is that such births would not confer
automatic citizenship.”). The commentary by these scholars supports our
conclusion that the military base where Thomas was born was not “in the
United States” for Fourteenth Amendment purposes.
Thomas cites the Supreme Court’s decision in United States v. Wong Kim
Ark, to support his position. There, the Supreme Court was asked to decide
“whether a child born in the United States, of parents of Chinese descent . . .
becomes at the time of his birth a citizen of the United States, by virtue of the
first clause of the fourteenth amendment of the constitution.” Wong Kim Ark,
169 U.S. at 653. However, Wong Kim Ark is inapposite. As we explained in
Nolos, “the question of the territorial scope of the Citizenship Clause of the
Fourteenth Amendment was not before the Court in Wong Kim Ark.” Nolos,
611 F.3d at 284. This is because the fact that “the child was born in San
Francisco was undisputed and it was therefore unnecessary to define ‘territory’
rigorously or decide whether ‘territory’ in its broader sense (i.e. outlying land
subject to the jurisdiction of this country) meant ‘in the United States’ under
the Citizenship Clause.” Id. (internal quotation marks and brackets omitted).
Accordingly, Wong Kim Ark does not support Thomas’s contention that the
military base on which he was born was “in the United States” for purposes of
the Fourteenth Amendment.
Thomas likewise does not find support in the recent decision of the Court
of Appeals for the District of Columbia Circuit in Tuaua v. United States, 788
F.3d 300 (D.C. Cir. 2015). In Tuaua, the D.C. Circuit was asked whether the
Citizenship Clause of the Fourteenth Amendment affords birthright
citizenship to individuals born in American Samoa. Id. at 301. In order to
10
Case: 14-60297 Document: 00513168473 Page: 11 Date Filed: 08/25/2015
No. 14-60297
answer this question, the D.C. Circuit considered at length “whether the
circumstances are such that recognition of the right to birthright citizenship
would prove ‘impracticable and anomalous,’ as applied to contemporary
American Samoa.” Id. at 309 (quoting Reid, 354 U.S. at 74 (Harlan, J.,
concurring)). Ultimately, the D.C. Circuit held that it was “anomalous to
impose citizenship over the objections of the American Samoan people
themselves, as expressed through their democratically elected
representatives.” Id. at 310. We are not convinced that Reid requires us to
consider whether it would be “impracticable and anomalous” to recognize a
right to birthright citizenship to those born on military bases located abroad.
Reid was concerned with what “constitutional limitations apply to the
Government when it acts outside the continental United States.” 354 U.S. at
8. Here, we are not concerned with any of the Constitution’s limitations on the
federal or state governments; rather, we are concerned with the “territorial
scope of the term ‘in the United States’ as used in the Citizenship Clause of the
Fourteenth Amendment.” Nolos, 611 F.3d at 282. “We note that the territorial
scope of the phrase ‘the United States’ is a distinct inquiry from whether a
constitutional provision should extend to a territory.” Rabang, 35 F.3d at 1453
n.8 (citing Downes, 182 U.S. at 249). Given that we have already determined
that “the Citizenship Clause has an express territorial limitation which
prevents its extension to every place over which the government exercises its
sovereignty,” Nolos, 611 F.3d at 283 (internal quotation marks omitted), we
decline to engage in a functional inquiry as to the scope of the Citizenship
Clause. Therefore, Tuaua does not change our conclusion that Thomas was
not born “in the United States” for Fourteenth Amendment purposes. 8
8 Thomas argues that if the Fourteenth Amendment does not provide him with
birthright citizenship, he is effectively stateless. However, even if we were to assume that
11
Case: 14-60297 Document: 00513168473 Page: 12 Date Filed: 08/25/2015
No. 14-60297
IV. CONCLUSION
For the foregoing reasons, we DENY the petition for review.
he would be rendered stateless because he is not a United States citizen, we are not convinced
that such a classification would change the analysis under the Fourteenth Amendment.
12