Robertson-Dewar v. Holder
2011 U.S. App. LEXIS 13920
5th Cir.2011Background
- Robertson-Dewar was born in Jamaica in 1980 and admitted as a lawful permanent resident in 1993 when his father naturalized as a U.S. citizen.
- In 1996, his father filed for Robertson-Dewar’s citizenship under INA § 322; the filing used Form N-600 instead of N-400, and no adjudication occurred for about a decade.
- Robertson-Dewar was convicted in 2002 of offenses related to child pornography; CIS denied citizenship in 2006 after an eleven-year delay without explanation.
- In 2007, a superseding removal notice issued; DHS initially stated Robertson-Dewar facially met § 322 and the IJ later granted termination of proceedings pending citizenship pursuit.
- After further proceedings (2007–2009), the IJ ordered deportation; the BIA remanded but did not resolve citizenship issues due to lack of jurisdiction over naturalization applications.
- Robertson-Dewar sought judicial review; the Fifth Circuit denied relief, holding no equitable estoppel and no authority to compel nunc pro tunc naturalization through remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government is equitably estopped from deporting Robertson-Dewar | Robertson-Dewar contends delay violated due process and created a ministerial duty in §322. | Government argues no affirmative misconduct or detrimental reliance; delay alone is insufficient. | Equitable estoppel rejected; no affirmative misconduct or reasonable reliance shown. |
| Whether the BIA had jurisdiction to terminate removal to permit citizenship proceedings | DHS’s earlier non-opposition sufficed as affirmative communication to terminate and pursue nunc pro tunc relief. | Hidalgo requires affirmative DHS communication establishing prima facie eligibility; later DHS position changed; no jurisdiction to terminate. | BIA lacked jurisdiction to terminate; affirmed removal and denied remand. |
| Whether Robertson-Dewar established prima facie naturalization eligibility under §322 in 1996 | If termination occurred, he could seek nunc pro tunc citizenship under §322 as originally drafted. | DHS later declined to recognize prima facie eligibility; prima facie status cannot be established by the BIA. | Not established; no prima facie eligibility under Hidalgo’s framework. |
Key Cases Cited
- Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) (review of equitable estoppel without jurisdictional deprivation)
- In re Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) (requires affirmative communication from DHS to terminate removal for naturalization)
- Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007) (prima facie eligibility determined by DHS communication)
- Fano v. O'Neill, 806 F.2d 1262 (5th Cir. 1987) (estoppel requires more than delay or internal guideline neglect)
- Bloom v. United States, 112 F.3d 200 (5th Cir. 1997) (estoppel requires affirmative misconduct and reasonable reliance)
- Harriott v. Ashcroft, 277 F.Supp.2d 538 (E.D. Pa. 2003) (not binding; discussed INS guidelines for §322 processing)