Sunny Viloria v. Loretta E. Lynch
808 F.3d 764
9th Cir.2015Background
- Petitioner Sunny Calaogan Viloria, born in the Philippines in 1978, entered the U.S. on an IR4 orphan visa at age seven and was adopted; he has lived continuously in the U.S. and is unmarried.
- In 2002 he pleaded no contest to promoting a dangerous drug (methamphetamine); in 2010 DHS served a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(B)(i).
- Viloria argued before the IJ that he derived U.S. citizenship through his adoptive parents; the IJ agreed and terminated removal proceedings.
- The BIA vacated the IJ’s termination, holding Viloria failed to meet the statutory requirements for derivative citizenship for adopted children under former 8 U.S.C. § 1431(b), and remanded for further proceedings.
- Viloria petitioned this court for review of the BIA’s vacatur; the government moved to dismiss for lack of a final removal order.
- The Ninth Circuit dismissed the petition for lack of jurisdiction because no final order of removal has been entered and section 1252’s final-order requirement is not circumvented by § 1252(b)(5).
Issues
| Issue | Viloria's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review Viloria’s nationality claim absent a final order of removal | §1252(b)(5) permits appellate review of nationality claims before a final removal order; court should decide nationality now | §1252(b)(9) limits review to final orders of removal; §1252(b)(5) does not create an exception | No jurisdiction; must await a final order of removal before appellate review |
| Whether Viloria derived citizenship under former §1431 via §1101(c)(1) “child” definition | Viloria: §1101(c)(1) makes him a “child,” so §1431(a) applies and he derived citizenship despite §1431(b) timing | Government/BIA: §1431(b) is an explicit exception for adopted children; adopted children must meet §1431(b) criteria to derive citizenship | BIA rejected Viloria’s statutory construction; the court did not reach the merits because of lack of jurisdiction |
| Whether §1252(b)(5) creates a standalone path to decide nationality claims in courts of appeals | Viloria: §1252(b)(5) authorizes appellate resolution of nationality claims if no genuine factual dispute | Government: §1252(b)(5) operates within §1252’s framework and applies after a final removal order; it does not override §1252(b)(9) | §1252(b)(5) does not override §1252(b)(9); no appellate jurisdiction absent final order |
| Whether an exception exists (as in Anderson) when agency action effectively deprives petitioner of any judicial forum | Viloria: concerns about loss of forum and potential detention could warrant exception | Government: no final or ultra vires removal order has been entered here; Anderson is distinguishable | Anderson’s narrow exception not triggered; Viloria can litigate citizenship if a final removal order issues or pursue habeas if detained |
Key Cases Cited
- Alcala v. Holder, 563 F.3d 1009 (9th Cir. 2009) (BIA remand/non-final orders preclude appellate review)
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (BIA remand means no final order of removal exists for appellate jurisdiction)
- Iasu v. Smith, 511 F.3d 881 (9th Cir. 2007) (§1252(b)(5) does not confer appellate jurisdiction absent a petition for review of a final removal order)
- Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) (an ultra vires BIA removal order treated as final for jurisdictional purposes where no other forum exists)
- Theagene v. Gonzales, 411 F.3d 1107 (9th Cir. 2005) (appellate review may address whether petitioner is an ‘alien’ required to exhaust administrative remedies)
- Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008) (district courts have habeas jurisdiction to review citizenship claims of detained immigration detainees)
- Rivera v. Ashcroft, 394 F.3d 1129 (9th Cir. 2005) (importance of judicial evaluation for non-frivolous citizenship claims)
- Nat’l Steel & Shipbuilding Co. v. Dir., Office of Workers’ Comp. Programs, 626 F.2d 106 (9th Cir. 1980) (finality and judicial efficiency favor single final order review)
- Omolo v. Gonzales, 452 F.3d 404 (5th Cir. 2006) (exhaustion and nationality issues)
- Moussa v. INS, 302 F.3d 823 (8th Cir. 2002) (nationality claim procedures and exhaustion)
- Bowrin v. INS, 194 F.3d 483 (4th Cir. 1999) (appellate consideration of whether petitioner is an alien for exhaustion purposes)