NOLOS v. HolderNOLOS v. Holder
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- Before:
- Jolly
Roseller Osicos Nolos (“Nolos”) petitions for review of the Board of Immigration Appeal’s (“BIA”) decision to uphold the immigration judge’s (“IJ”) order of removal and the BIA’s subsequent denial of his separate motions to reconsider and to reopen. Nolos argues that he is not removable bеcause (1) he derives United States citizenship from his parents, who he claims acquired United States citizenship by virtue of their births in the Philippine Islands (“Philippines”) while the country was a United States territory, and (2) the Nevada theft conviction that forms the basis of the removal order does not qualify as an aggravated felony under
Nolos was admitted to the United States in 1983 as a lawful permanent resident. In 2003, he pleaded guilty to a theft offense pursuant to Nevada Revised Statutes § 205.0832 (2003) in Nevada state court and received a suspendеd prison sentence of between 18 and 48 months. In July 2006, the Department of Homeland Security (“DHS”)
1
issued an order to show cause and notice of hearing, charging that Nolos’s conviction constituted an aggravated felony pursuant to
Nolos, proceeding pro se, admitted the DHS’s allegations and conceded his removability. In August 2006, the IJ determined that Nolos was removable because his Nevada conviction constituted an aggravated felony under
On remand, the DHS submitted the Nevada information charging Nоlos with theft under Nevada Revised Statutes § 205.0832. After a review of this additional material, the IJ determined that Noios was convicted under § 205.0832(l)(b); § 205.0832(l)(b) met the requirements of theft under the Immigration and Nationality Act (“INA”); and Nolos was removable as an aggravated felon. The BIA agreed with the IJ’s determination and dismissed Nolos’s appeal.
Nolos filed a timely petition for review and also filed with the BIA a timely motion for reconsideration and a motion to reopen, asserting in part that he was a citizen of the United States. After the BIA’s denial of those motions, Nolos filed an additional timely petition fоr review of this BIA decision.
II.
Although our review of a final order of removal is limited under
While we owe deference to the BIA’s interpretation of the INA under the principles of
Chevron USA, Inc. v. NRDC,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), our review of the legal questions posed here is
de novo. See Patel v. Mukasey,
526 F.3d 800, 802 (5th Cir.2008);
Larin-Ulloa,
462 F.3d at 460-61;
Omari v.
III.
The Government argues initially that Nolos’s petition should be dismissed in part on the procedural ground that he failed to comply with
IV.
There are two sources of citizenship: birth and naturalization. Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir.2006). Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when thе country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have 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. 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 The courts of appeals explained that the term “United States” as it is used in 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. at 1453 & n. 8; see also Valmonte, 136 F.3d at 920. 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. Valmonte, 136 F.3d at 918-19; Rabang, 35 F.3d at 1452. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puertо Rico to the United States mainland. Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at 918.
In Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901), one of the Insular Cases, “[t]he Court held that Puerto Rico was ‘not a part of the United States within the revenue clauses of the
Relying on Downes, the Rabang and Valmonte courts observed that “[l]ike the revenue clauses, the Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty.” Rabang, 35 F.3d at 1453 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 291 n. 11, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (Brennan, J., dissenting)); see also Valmonte, 136 F.3d at 918-19. The courts of appeals further noted the Court’s subsequent statement that “ ‘in dealing with foreign sovereignties, the term “United States” has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal government, wherever located.’” Rabang, 35 F.3d at 1453 (quoting Downes, 182 U.S. at 263); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263). They observed that “[i]n other words, as used in the Constitution, the term ‘United States’ does not include all territories subject to the jurisdiction of the United Statеs government.” Rabang, 35 F.3d at 1453 (citing as see also Examining Bd. of Eng’rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 588 n. 19, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976)); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263). 3
Against this background, the
Rabang, Lacap
and
Valmonte
courts held that “[i]t is ... incorrect to extend citizenship to
Notwithstanding the Supreme Court authority starting with the Insular Cases and the persuasive precedent from three of our sister circuits, Nolos counters that Downes, as one of the central cases of Rabang, Valmonte and Lacap, should not be followed because it never defined the phrase “the United States” in the context of the Fourteenth Amendment. Relying on United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), he argues that the Fourteenth Amendment codified the principles of the English common law that birth within a sovereign’s territory confers citizenship. On that basis, Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us, see Rabang, 35 F.3d at 1454; Valmonte, 136 F.3d at 920, we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark:
The issue in Wong Kim Ark was whether a child born to alien parents in the United States was a citizen under the Fourteenth Amendment. 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.”
Valmonte, 136 F.3d at 920 (brackets in original) (quoting Rabang, 35 F.3d at 1454).
Against this background, we find the reasoning of our sister circuits persuasive and hold that “persons born in the Philippines during its status as a United States territory were not ‘born ... in the United States’ under the Fourteenth Amendment.” Valmonte, 136 F.3d at 920 (quoting Rabang, 35 F.3d at 1453). Accordingly, given that Nolos’s parents did not acquire United States citizenship by virtue of their birth in the Philippines when it was a United States territory, Nolos could not have derived United States citizenship from them and is therefore removable if he is found to have been convicted of an aggravated felony.
V.
Nolos аrgues next that even if he were not a United States citizen he is not removable because his conviction under Nevada Revised Statutes § 205.0832 does not qualify as an aggravated felony under
“Federal immigration law provides that any ‘alien who is convicted of an
aggravated felony
at any time after admission is deportable.’ ”
Nijhawan v. Holder,
- U.S. -, 129 S.Ct. 2294, 2297, 174 L.Ed.2d 22 (2009) (emphasis in original) (quoting
To prove that Nolos was convicted of an aggravated felony theft оffense, the Government submitted a copy of the Nevada information and judgment of conviction. After a review of the documents, the BIA determined that Nolos was convicted under Nevada Revised Statutes § 205.0832(l)(b) and that the provision qualified as an aggravated felony under
In sum, given that Nolos’s term of imprisonment was over one year, the record of conviction establishes that Nolos was convicted of a theft offense pursuant to
VI.
For the foregoing reasons, we DENY Nolos’s petition for review.
Notes
. The notice was issued by the Immigration and Naturalization Services, whosе services and responsibilities have since between transferred to the DHS. See Zaidi v. Ashcroft, 374 F.3d 357, 358 n. 1 (5th Cir.2004).
. The Supreme Court also observed, although without deciding the issue, that persons born in the Philippines at the time the Philippines were a territory of the United States were not United States citizens. See Rabang v. Boyd, 353 U.S. 427, 430-31, 77 S.Ct. 985, 1 L.Ed.2d 956 (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 right of free entry into the United States.” (citation and quotation marks omitted)); Barber v. Gonzales, 347 U.S. 637, 639 n. 1, 74 S.Ct. 822, 98 L.Ed. 1009 (1954) (stating that although the inhabitants of the Philippines during the territorial period were “nationals” of the United States, they were not “United States citizens”).
. The Valmonte court found further support in Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 (1945), in which the Court held that the Philippines were “not a part of the United Slates in the sense that they are subject to and enjoy the benefits or protection of the Constitution, as do the states which are united by and under it.” Id. at 678, 65 S.Ct. 870 (cited in Valmonte, 136 F.3d at 919). The Second Circuit also referenced Barber, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009, and Rabang, 353 U.S. 427, 77 S.Ct. 985, 1 L.Ed.2d 956, in which the Court “observed, without deciding, that persons born in the Philippines prior to its independence in 1946 [were] not citizens of the United States.” Valmonte, 136 F.3d at 919 (citing Barber, 347 U.S. at 639 n. 1, 74 S.Ct. 822; Rabang 353 U.S. at 432 n. 12, 77 S.Ct. 985).
. Most recently, the District Court for the District of Columbia, relying on the reasoning in Rabang, Valmonte and Lacap, held that a Filipino Navy shipyard worker who was bom in the Philippines when it was a United States territory was not a United States citizen under the Citizenship Clause. See Licudine v. Winter, 603 F.Supp.2d 129, 134-35 (D.D.C.2009).