David JOHNSON, Petitioner-Appellant, v. J.D. WHITEHEAD, Warden; Calvin McCormick, Field Office Director; James T. Hayes, Jr., Director; Julie Myers, Assistant Secretary of Homeland Security; Michael Chertoff, Secretary of Homeland Security; Michael B. Mukasey, U.S. Attorney General, Respondents-Appellees. David Livingston Johnson, a/k/a Conrad Llewellyn, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
Nos. 09-1981, 10-1488
United States Court of Appeals, Fourth Circuit
Decided: May 24, 2011
639 F.3d 121
It is true enough that the relevant record failed to resolve the ambiguity surrounding Salem‘s conviction for petit larceny. For reasons we have explained, however, we decline to accept Salem‘s view that this ambiguity should be resolved in his favor. Instead, we hold that where, as here, the relevant evidence of conviction is in equipoise, a petitioner has not satisfied his statutory burden to prove eligibility for relief from removal.6
D.
Salem argues finally that the BIA impermissibly relied on the factual basis for his Alford plea in reaching its ruling. The record demonstrates, however, that the BIA did not use these facts to support its conclusion. It merely noted the obvious, i.e., that the only evidence in the record bearing on the particulars of Salem‘s 2007 conviction for petit larceny was not helpful to him.
The BIA acknowledged Salem‘s contention that review of the colloquy is impermissible because he entered an Alford plea. It concluded, however, that the issue was irrelevant, because “the fact remains that the respondent has produced no evidence to establish that his violation involved an element of Virginia larceny falling outside the theft aggravated felony definition.” J.A. 7.
We agree with the BIA that, Alford plea or not, Salem did not sustain his burden of showing by a preponderance of the evidence that he has not been convicted of an aggravated felony. Accordingly, we affirm the BIA‘s ruling that Salem is ineligible for cancellation of removal.
AFFIRMED
ARGUED: Jan. 25, 2011.
ARGUED: Angad Singh, Washington College of Law, Appellate Advocacy Clinic, Washington, D.C., for Petitioner/Appellant. Eric Warren Marsteller, United States Department of Justice, Washington, D.C., for Respondents/Appellees. ON BRIEF: Ali A. Beydoun, Unrow Human Rights Impact Litigation Clinic, Washington, D.C., for Petitioner/Appellant. Tony West, Assistant Attorney General, Civil Division, Ada E. Bosque, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondents/Appellees.
Before TRAXLER, Chief Judge, and WILKINSON and GREGORY, Circuit Judges.
WILKINSON, Circuit Judge:
In 2008, the Department of Homeland Security (“DHS“) initiated removal proceedings against David Johnson, alleging that he was an alien who had committed a variety of gun and drug offenses. Both the immigration judge and the Board of Immigration Appeals (“BIA“) agreed with DHS that Johnson was removable. Johnson then filed a petition for a writ of habeas corpus and a petition for review. He claims that he is a citizen under
Johnson also argues that because he was declared a United States citizen in a 1998 removal proceeding, DHS is precluded from litigating the issue of his alienage in later removal proceedings. But this claim
This too has problems. Johnson disregards the general rule that agencies are “free to fashion their own rules of procedure” without interference from courts. Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 544 (1978). He asks us to impose a sweeping rule of preclusion that would prospectively immunize criminal aliens from deportation, no matter what crimes they might at some future date commit. But that course would breach the established relationship between courts and agencies and contravene Congress‘s efforts to secure the orderly removal of criminal aliens. See
I.
David Johnson, a native of Jamaica, entered the United States as a lawful permanent resident on October 1, 1972 at the age of seven. Johnson‘s father accompanied him. Although his father became a naturalized citizen a little over a year after their arrival, his father failed to use the procedure Congress created to apply for United States citizenship on his minor son‘s behalf. Johnson also never applied for United States citizenship on his own behalf prior to 1996.
Johnson committed a number of crimes during his time in this country. On January 27, 1989, he was convicted of carrying a firearm during and in relation to a drug trafficking crime, in violation of
The Immigration and Naturalization Service (“INS“), whose powers in this area have since been transferred to DHS, sought to deport Johnson on the basis of these convictions. On August 21, 1992, INS issued Johnson an Order to Show Cause, claiming Johnson was deportable from the United States based on his criminal offenses. The immigration judge terminated the proceedings for reasons that were not discussed in the order.
On June 21, 1996, INS issued another Order to Show Cause, claiming Johnson was deportable on account of his drug and firearms convictions. The immigration judge terminated the proceedings on February 9, 1998, stating that Johnson “appears to be [a] U.S. citizen by [his] father‘s [naturalization].” J.A. 31. INS did not appeal.
On December 16, 1996, during the pendency of the removal proceedings, Johnson filed a Form N-600 Application for Certificate of Citizenship with INS, claiming that he derived United States citizenship from his father‘s naturalization. Johnson relied on
On January 28, 2002, Johnson was convicted of possession of a firearm by a convicted felon, in violation of
On May 21, 2009, the immigration judge denied Johnson‘s motion to terminate the proceedings and ordered him deported. The immigration judge concluded that DHS was not precluded from litigating the issue of Johnson‘s citizenship because the 1998 termination order did not make any citizenship finding. Even if this obstacle were absent, the immigration judge reasoned, under Duvall v. Attorney General of the United States, 436 F.3d 382 (3d Cir.2006), Johnson‘s commission of an additional crime since the 1998 proceedings lifted any preclusion bar that might otherwise have existed. Additionally, the immigration judge ruled that Johnson did not derive citizenship from his father‘s naturalization.
Johnson appealed this decision to the BIA. The BIA dismissed the appeal, relying principally on the Duvall argument and agreeing that Johnson did not obtain citizenship through his father‘s naturalization. Johnson filed a petition for review.
Johnson also petitioned for a writ of habeas corpus on July 18, 2008, raising the same citizenship issue he litigated in the removal proceedings. The district court dismissed the petition. Johnson appealed, but this court held the case in abeyance pending the BIA‘s decision in Johnson‘s removal proceedings. On May 12, 2010, upon Johnson‘s filing of a petition for review of the BIA‘s dismissal of his appeal, this court consolidated Johnson‘s habeas appeal with his petition for review.
II.
We first consider Johnson‘s petition for a writ of habeas corpus. At oral argument Johnson conceded that his petition for review, not his habeas corpus petition, was the proper avenue of appeal. This is because the district court was without jurisdiction to consider the citizenship issues raised in the habeas petition.
Petitions for review are the appropriate vehicle for judicial review of legal and factual questions arising in removal proceedings. See
In fact, Congress has specifically prohibited the use of habeas corpus petitions as a way of obtaining review of questions arising in removal proceedings.
Because
III.
Johnson argues in his petition for review that he is a United States citizen and that the BIA adopted an impermissible and unconstitutional interpretation of
A.
The particular provision at issue here is
A child born outside of the United States of alien parents ... becomes a citizen of the United States upon fulfillment of the following conditions: ... (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation ....
Johnson argues that he qualifies for citizenship because his father had sole custody of him when his father became a United States citizen. Johnson claims to satisfy the “legal separation” requirement of
But Johnson‘s conclusion falters on the fact that his parents did not marry. The BIA has reasoned that the term “legal separation” requires that there first be a marriage and then formal steps to end that marriage. And that is the clear meaning of the statute.
Every circuit that has considered the issue has found a marriage requirement in the term “legal separation.” See Lewis v. Gonzales, 481 F.3d 125, 130 (2d Cir.2007); Morgan v. Attorney General of the United States, 432 F.3d 226, 234 (3d Cir.2005); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir.2003); Nehme v. INS, 252 F.3d 415, 425-26 (5th Cir.2001). The Fourth Circuit is no exception. In Afeta v. Gonzales, 467 F.3d 402 (4th Cir.2006), we held that the BIA‘s interpretation of “legal separation” as “requiring that the minor alien‘s parents have taken formal judicial steps to end their marriage” was a reasonable one. Id. at 404.
The reason for this unanimity lies in the strength of the underlying arguments for a marriage requirement. Section 1432(a)(3) is divided into two parts. The first concerns the circumstance of “legal separation.” The second deals with “out of wedlock” situations. Over and above the fact
The marriage requirement also makes sense in light of the broader statutory scheme. Section 1432 takes pains to protect the rights of both parents. Naturalization is a “significant legal event with consequences for the child here and perhaps within his country of birth or other citizenship.” Lewis, 481 F.3d at 131. Congress “recognize[d] that either parent ... may have reasons to oppose the naturalization of their child, and it respects each parent‘s rights in this regard.” Id. at 131; see Wedderburn v. INS, 215 F.3d 795, 800 (7th Cir.2000) (explaining that a “parent may have reasons to prefer the child‘s original citizenship, which may affect obligations such as military service and taxation“).
Accordingly, an automatic conferral of citizenship usually requires the naturalization of both parents, and exceptions to this rule, including
It is also important to keep in mind that
B.
Johnson‘s constitutional challenge is similarly flawed. Legal classifications based on legitimacy are typically reviewed under intermediate scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988). But the immigration context is a special one.
The Supreme Court has emphasized Congress‘s plenary power over immigration and naturalization: “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
Based on these principles, the Fiallo Court applied rational basis review to a legal classification based on legitimacy. Id. at 788-89, 794-95. Indeed, the issue in that case was similar to the one here. In Fiallo, immigration statutes granted preferential immigration status to legitimate children of a United States citizen or lawful permanent resident. Id. at 788-89. But out of wedlock children could obtain the same preference only through their mother and not through their father. Id. at 788-89.
The statute at issue here,
Congress certainly had a rational basis here. As discussed above, the distinction between children born in and out of wedlock protects parental rights. Section 1432 “limits automatic changes to situations in which the other parent has been removed from the picture.” Wedderburn, 215 F.3d at 800. This removal can occur via death, a combination of legal separation and sole custody, or a father‘s failure to legitimate his child.
Johnson additionally argues that because DHS failed to prove his alienage in the 1998 removal proceedings, DHS was precluded from relitigating the issue of his alienage in the 2009 removal proceedings. Johnson further claims that the 1998 immigration judge declared him a citizen and that that ruling forever bars DHS from revisiting the issue of his citizenship or alienage.2 But this is simply not the case. Johnson has not satisfied the requirements for issue preclusion, and, even if he could overcome that obstacle, preclusion still would not apply given the criminal misconduct apparent in his case.
A.
We begin our analysis with an overview of administrative preclusion principles. A “basic tenet of administrative law [is] that agencies should be free to fashion their own rules of procedure.” Vermont Yankee, 435 U.S. at 544. Congress determined that “administrative agencies ... will be in a better position than federal courts ... to design procedural rules adapted to the peculiarities of the ... tasks of the agency involved.” Id. at 524-25 (quoting FCC v. Schreiber, 381 U.S. 279, 290 (1965)). Therefore, the judiciary should not reconstruct agency procedures unless they are inconsistent with the demands of the agency‘s governing statute or the Constitution. See Schreiber, 381 U.S. at 290-91.
Recognizing the plenary power of Congress in the immigration context, the two cases upon which the dissent rests its case both rejected constitutional challenges to the statutes at issue. See Nguyen v. INS., 533 U.S. 53, 72-73 (2001) (noting the “wide deference afforded to Congress in the exercise of its immigration and naturalization power“); Miller v. Albright, 523 U.S. 420, 434 n. 11 (1998) (“Deference to the political branches dictates ‘a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.’ “) (quoting Mathews v. Diaz, 426 U.S. 67, 82 (1976)).
The Court applied heightened scrutiny only because the statutes at issue could so clearly be upheld under that standard, thus eliminating the need to choose between heightened scrutiny and rational basis review. See Nguyen, 533 U.S. at 61 (“Given that determination [that the statute satisfies heightened scrutiny], we need not decide whether some lesser degree of scrutiny pertains....“); Miller, 523 U.S. at 434 n. 11 (opinion of Stevens, J., joined by Rehnquist, C.J.) (“Even if ... heightened scrutiny ... applied in this context, we are persuaded that the requirement imposed by
Finally, our friend in dissent attempts to build an equitable case for petitioner, but it bears remarking that petitioner‘s difficulties are attributable to his repeated criminal offenses, not to any unconstitutional flaw in the immigration laws. And, to sum up, the combination of adopting a “parental abandonment” standard and requiring heightened scrutiny of
The INA contains no provision requiring the BIA to adopt any particular set of preclusion rules. Of course, it is true that “Congress is understood to legislate against a background of common-law adjudicatory principles,” including rules of preclusion. Id. But this is not a license for courts to impose their own preclusion rules on agencies. To do so would undermine the agency‘s accumulated familiarity and expertise in its subject area. See Schreiber, 381 U.S. at 290-91. Agencies are familiar with their own procedures and rulings. See id. And an agency‘s expertise, developed over years of dealing with the subject matter delegated to it by the Congress, guides the agency in crafting appropriate rules of preclusion and assessing the preclusive effects of its prior rulings. See id. For a court to wade casually into the waters of agency procedure would not be conducive to the deference normally owed agencies in their congressionally sanctioned spheres.
Furthermore, federal courts traditionally refer to the preclusion rules of a fellow adjudicative body when determining the preclusive effect of a ruling from that body. For example, when determining the preclusive effect of a state court ruling, federal courts do not view it through the lens of their own preclusion principles. Rather, they “give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982). Agency rulings present a similar case, especially in the context here, where the issue is the preclusive effect of a prior agency ruling on a later agency adjudication. Thus, it seems axiomatic that the BIA‘s rejection of the preclusive effect of its 1998 termination order is entitled to judicial respect.
B.
Johnson claims that the government failed to prove his alienage in the 1998 proceedings by “clear, unequivocal, and convincing evidence.”
The immigration judge in the 1998 proceedings never purported to declare Johnson a United States citizen. Rather, he merely noted that Johnson “appears to be [a] U.S. citizen by [his] father‘s [naturalization].” J.A. 31. As both the immigration judge and the BIA concluded, this equivocal language does not indicate any conferral of citizenship. The BIA stated as much: “[T]he prior deportation case does not reflect a formal finding of citizenship.” J.A. 262. A declaration of citizenship is a significant step, and it would be remarkable to find it accomplished in this offhanded a manner. In other words, assuming the privileges and obligations of citizenship is a matter of some formality, and it would undermine the naturalization process to hold otherwise.
Furthermore, neither immigration judges nor the BIA have any power to confer United States citizenship. We made this point explicit in Barnes v. Holder, 625 F.3d 801, 805-06 (4th Cir.2010). There we noted that “the BIA and IJs ‘lack jurisdiction over [naturalization].’ ” Id. at 806 (quoting In re Acosta Hidalgo, 24 I. & N. Dec. 103, 108 (B.I.A.2007)). “Congress has ‘exclusive constitutional power’ over nationalization, and therefore citizenship may be conferred upon foreign-born persons only by act of Congress.” Jahed v. Acri, 468 F.3d 230, 234 (4th Cir.2006) (quoting INS v. Pangilinan, 486 U.S. 875, 882 (1988)). Congress conferred “sole authority to naturalize persons as citizens of the United States ... upon the Attorney General.”
Johnson pursued this proper route to naturalization through INS. After the close of the 1998 proceedings, INS acted on Johnson‘s Form N-600 Application for Certificate of Citizenship; it denied his application. Thus, the official position of the agency with statutory and administrative authority over naturalization issues is that Johnson is not a United States citizen.
The odd results of Johnson‘s position thus come into focus. If Johnson were to prevail on his preclusion argument, he would be left in limbo—in some nebulous state of quasi-citizenship or non-alienage. He could commit crimes without fear of deportation because in the context of removal proceedings he would be treated as a United States citizen. But, because he would not actually be a United States citizen, many of the other privileges of citizenship—such as voting or obtaining a United States passport—would remain beyond his grasp. Congress sought to avoid such a partial citizenship situation by centralizing naturalization authority. See
C.
Other bars to preclusion exist as well. No common law preclusion principle applies to an agency “when a statutory purpose [in opposition to the preclusion rule] is evident.” Astoria, 501 U.S. at 108,
Johnson falls into the class of criminal aliens Congress sought to remove. There are multiple statutory bases for removing Johnson because of his criminal misconduct. See
Granting Johnson‘s request would trample on both agency practice and congressional intent. To preclude DHS from seeking to remove an alien who continues to engage in criminal conduct after the termination of earlier removal proceedings would frustrate one of the core purposes of the INA—the prompt removal of criminal aliens. See Duvall, 436 F.3d at 391. Indeed, only repeat offenders would benefit from such a rule of preclusion. As the Third Circuit noted, these aliens “could flout any rule or commit any offense without fear of deportation.” Id. It would be ironic to suggest that Congress, in its repeated efforts to ensure the orderly removal of criminal aliens, had instead granted a uniquely generous rule of preclusion to a problematic class of repeat offenders. We simply cannot grant what Congress has refused to tender: the blanket immunization Johnson now seeks.
V.
For the foregoing reasons, we affirm the district court‘s dismissal of Johnson‘s petition for a writ of habeas corpus and deny his petition for review.
No. 09-1981 AFFIRMED
No. 10-1488 PETITION DENIED
GREGORY, Circuit Judge, dissenting:
While I agree that the rules of preclusion are, in this case, not applicable to the administrative courts, I believe that the Board of Immigration Appeals’ interpretation of the phrase “legal separation” in
The majority holds that a legal separation can occur only after a divorce, and, contrary to precedent, applies rational basis review to
I.
As the majority correctly points out, Congress has plenary power in the immigration context, see Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.” (citation and internal quotations omitted)), and we are generally bound to apply only rational basis review when assessing an equal protection challenge to an immigration law, Appiah v. Ι.N.S., 202 F.3d 704, 709-10 (4th Cir.2000) (applying rational basis review where an alien questioned the constitutionality of an immigration law).
Nevertheless, where the petitioner, like Johnson, claims that he or she is statutorily entitled to actual citizenship, and is not merely seeking residency or a special immigration status, the Supreme Court has applied the more stringent form of “intermediate” or “heightened” scrutiny. See Nguyen v. I.N.S., 533 U.S. 53, 60-61 (2001) (applying heightened scrutiny); Miller v. Albright, 523 U.S. 420, 429-34 & n. 11 (1998) (plurality) (same); see also Nguyen v. Ι.N.S., 208 F.3d 528, 533-35 (5th Cir.2000), aff‘d 533 U.S. 53 (2001) (same).
In Miller, the daughter of a citizen father brought an action challenging the constitutionality of
After applying heightened scrutiny to the law, a plurality of the Court held that the statute did not violate equal protection. Compare 523 U.S. at 429-41 (plurality) with 523 U.S. at 476-78 (Breyer, J., dissenting) (arguing that intermediate scrutiny should apply to naturalization laws that discriminate based on sex). The plurality opinion distinguished Fiallo and declined to apply it “because that case involved the claims of several aliens to a special immigration preference, whereas here petitioner claims that she is, and for years has been, an American citizen.” Miller, 523 U.S. at 428-29; see also Nguyen, 208 F.3d at 535. In the present case, like the petitioner in Miller, Johnson also claims to have become and remained a citizen since 1973, when his father naturalized.
In Nguyen, a majority of the Supreme Court clarified Miller when it again upheld
It does not matter that Johnson‘s challenge to
II.
“Intermediate scrutiny queries whether a statute is substantially related to an important governmental interest.” United States v. Chester, 628 F.3d 673, 690 (4th Cir.2010) (citing Craig v. Boren, 429 U.S. 190, 197 (1976)). “Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government.” Chester, 628 F.3d at 683 (citing Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480-81 (1989)).
Section 1432(a)(1) established a general rule that allows a child to obtain citizenship automatically only after both parents have naturalized. Recognizing the need for flexibility, Congress also created several exceptions to this rule which are outlined in
The majority reads
Neither the majority, nor our sister Circuits have ever squarely addressed this obvious incongruence or this exact factual scenario. See, e.g., Barthelemy, 329 F.3d at 1064 (petitioner‘s mother abandoned him at birth, but had never formally relinquished her rights); Lewis v. Gonzales, 481 F.3d 125, 126-27 (2d Cir.2007) (petitioner immigrated to America with his father at age thirteen, and mother never surrendered her rights). In contrast to Barthelemy and Lewis, the issue of legal parental abandonment is squarely before us in the form of undisputed documentation stating that, within a year of Johnson‘s birth, his mother ceded all of her parental rights over him to his father.
Our only solution to this dilemma is to read the statute so that it “raise[s] the rights of one parent,” Johnson‘s naturalized father, “above those of the other,” the absconding alien mother. Op. 126; see also Sandoval v. Reno, 166 F.3d 225, 237 (3d Cir.1999) (construing an immigration law to “avoid serious constitutional problems“). Johnson‘s father was the only parent ever to claim any legal interest in him after he was abandoned by his mother. His father then brought him to America, naturalized himself, and raised Johnson in this country. Under the alternative reading of
Accordingly, although Johnson does not raise this issue, it is evident that
The government has expressed no valid basis for raising additional barriers for the children of unmarried fathers. See Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982) (“[T]he party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification.” (citations and internal quotations omitted)). The law is unconstitutional because the government cannot even show that the discriminatory means employed in
Indeed, given the government‘s failure to come up with any sincere basis, rational or otherwise, for the distinction it draws between legitimate and illegitimate children, as well as between unmarried fathers and unmarried mothers, I have serious doubts about whether
Finally, although the courts lack the power to confer citizenship, I.N.S v. Pangilinan, 486 U.S. 875, 884 (1988);
III.
The government cannot show that the burden
For these reasons, I must dissent.
Notes
The dissent also calls for heightened scrutiny of
While the Seventh Circuit in Wedderburn v. I.N.S. did discuss Miller, that case was decided a year before Nguyen. 215 F.3d at 800-02. The Seventh Circuit also wrongly found that the Miller plurality applied only the rational-basis test, 215 F.3d at 801, when in fact Miller undoubtedly applied heightened scrutiny, 523 U.S. at 434 n. 11. See also 523 U.S. at 451-52 (O‘Connor, J., concurring) (questioning the plurality opinion‘s decision to apply heightened scrutiny); Nguyen, 208 F.3d at 533-36 (“A plurality opinion authored by Justice Stevens, appl[ied] the heightened scrutiny standard ....” (citing Miller, 523 U.S. at 423)).