Shepherd v. Holder, 2012 U.S. App. LEXIS 9344

Shepherd, an Indian-born adoptee, came to the U.S. as a child and was never petitioned for citizenship.
Shepherd was convicted in Utah for attempted and third-degree forgery in 2004, triggering removal proceedings as a criminal alien.
The IJ initially dismissed for lack of jurisdiction after finding potential citizenship under the Child Citizenship Act (CCA).
The government, later realizing Shepherd was too old for CCA citizenship, sought to reopen in a second removal proceeding; the IJ allowed relitigation of alienage status.
The government appealed; the BIA held collateral estoppel did not apply, remanding for a new decision; the IJ ordered removal on remand.
Shepherd petitioned for review in the Tenth Circuit; the court must determine if jurisdiction under § 1252(a)(2)(C) exists by deciding if she is a citizen or an alien under § 1252(b)(5).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction under § 1252(a)(2)(C).	Shepherd argues jurisdiction lies despite the bar because citizenship facts must be decided de novo.	Holder/Respondent argues § 1252(a)(2)(C) bars review for criminal aliens unless exceptions apply.	Court has jurisdiction to determine citizenship under Tapia Garcia and § 1252(b)(5).
Whether finality and exhaustion requirements are satisfied to review the IJ’s order.	Shepherd bypassed BIA review but exhausted issues already decided.	Government contends exhaustion/finality require proper BIA review.	Petition meets finality and exhaustion under § 1252(d) and Tapia Garcia doctrine.
Whether the ripening doctrine permits review of a premature petition.	Ripening allows a premature petition to become effective when the BIA review period ends.	No prejudice or rule prevents ripening; review should proceed.	Petition is ripe and reviewable despite premature filing.
Whether § 1252(b)(5) procedures govern the citizenship determination and how.	Nationality claims should be reviewed de novo under § 1252(b)(5).	Collaterally estopped or agency findings could bind the outcome.	Proceed to determine alienage/citizenship under § 1252(b)(5) with A/B split as appropriate.

Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) (citizenship denial as a jurisdictional fact in deportation)
Gomez-Diaz v. Ashcroft, 324 F.3d 913 (7th Cir. 2003) (CCA non-retroactive citizenship limits)
Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) (second BIA appeal not required for exhaustion)
Fei Mei Cheng v. Att'y Gen., 623 F.3d 175 (3d Cir. 2010) (exhaustion and collateral estoppel context in asylum)
Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994) (exhaustion not required for motions to reconsider)
Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (jurisdictional self-determination to determine alienage)
Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. 2006) (Tapia Garcia principle on jurisdictional self-determination)
Abiodun v. Gonzales, 461 F.3d 1210 (10th Cir. 2006) ( § 1252(b)(5) interplay with bar for citizenship claims)
Lopez v. Holder, 563 F.3d 107 (5th Cir. 2009) (de novo review of nationality claims in § 1252(b)(5))
Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) (scope of administrative collateral estoppel in § 1252 context)