Opinion
Civil Action No. 04-855.
May 5, 2004
MEMORANDUM
Petitioner has filed his § 2241 petition claiming that he is a citizen through:
(1) Military service;
(2) Application for citizenship made in 1977; and
(3) Stepfather a United States citizen.
I. FACTUAL BACKGROUND
Petitioner, born January 17, 1952 as set forth in his petition, is a native and citizen of Panama. He entered the United States at Miami, Florida on or about October 20, 1959 as a visitor. Thereafter, on February 25, 1960, his status was adjusted at New York, New York to that of lawful permanent resident.
At age 20, he enlisted in the United States Air Force. He was honorably discharged on November 28, 1973 after 10 months. In 1977, he submitted his application for citizenship and in response received a letter from Joe D. Howerton, Acting District Director, which stated:
"A check of service records fails to substantiate your claim to United States citizenship acquired through your parents' naturalization. In view of your honorable service in the Armed Forces, it is suggested that you petition for citizenship. Enclosed are necessary forms."
Petitioner claims that he then sometime in March, 1977 submitted an application for citizenship. In support of this he attaches an unsigned and undated application (Petitioner's Exhibit "C"). The Respondents have no record of this (see Respondents' Exhibit "I").
Since his discharge from the service, Petitioner has attained a criminal record consisting of:
8/6/74 U.S. District Court for Western District of Texas; sentenced to one year and one day imprisonment for illegally importing marijuana.
12/18/90 Supreme Court of New York, Queens County; sentenced to 1½ to 3 years, for attempted possession of stolen property.
1/11/91 Supreme Court of New York, Queens County; sentenced to a prison term of at least one year for criminal possession of stolen property.
1/5/96 Supreme Court of New York, Queens County; sentenced to 10 months in prison for criminal possession of stolen property.
1/6/99 Supreme Court of New York, County of Kings; criminal possession of controlled substance and unauthorized use of motor vehicle. After violating terms of conditional release, sentenced to six months in prison.
5/14/01 Supreme Court of New York, Queens County; convicted of petit larceny.
On June 18, 2002, the Respondents issued a Notice to Appear to Petitioner, charging him with removability under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) based on his drug conviction and an additional charge of inadmissability based on his May, 2001 petit larceny conviction. Subsequently, the Bureau of Immigration and Customs Enforcement (ICE) lodged additional charges of inadmissibility based upon his other convictions.
Thereafter, Petitioner was taken into custody and placed into removal proceedings. On March 20, 2003, Immigration Judge Walter A. Durling granted his request for release from custody pending a $5,000 bond. On February 12, 2004, Immigration Judge Durling ordered Petitioner removed to Panama. Petitioner did not file an appeal with the Board of Immigration Appeals (BIA), rendering the removal order final.
On February 18, 2004, Petitioner filed an application for naturalization based upon his military service. On February 27, 2004, Petitioner filed a petition for habeas corpus relief seeking a declaration of citizenship from this court, or in the alternative, release from detention. On March 23, 2004, ICE denied Petitioner's application for naturalization because he was under a final Order of Removal. Petitioner did not appeal this decision. On March 31, 2004, Petitioner filed an addendum to his habeas petition which included the facts surrounding ICE's March 23, 2004 denial of his application for naturalization. On April 15, 2004, ICE issued a decision revising its March 23, 2004 decision denying Petitioner's application for naturalization. In its revised decision, ICE denied Petitioner's application for naturalization because he failed to establish that he met the requirements of good moral character based upon his 27 years of repeated criminal history and his current imprisonment as an aggravated felon pursuant to his deportation order. Petitioner has not yet appealed this decision.
II. LAW
This court's review is limited to questions of law and does not encompass an examination of Respondents' exercise of discretion or the weight of the evidence. Following that standard, the following is noted.
First, the Petitioner does not derive citizenship in this case by his service in the U.S. Air Force. There is no evidence that he filed an N400 in 1977. The only one he filed, dated February 18, 2004, was properly denied for the reasons set forth in Respondents' brief; mainly, the lack of good moral character. It should also be noted that the alleged swearing in as a citizen by Sgt. Kirkman does not confer citizenship.
Second, there is no authority for derivative citizenship through Petitioner's stepfather. This relationship standing alone would not entitle Petitioner to citizenship. My reading ofDiaz-Sosa v. Ashcroft, 64 Fed.Appx. 56, 2003 WL 1949607 (9th Cir. 2003) leads me to conclude that Petitioner would have had to submit evidence of adoption by his stepfather, which he has not done.
Finally, Petitioner is claiming excessive detention, but his removal order only became final on March 15, 2004, the order of removal from which he did not appeal having been entered on February 12, 2004.
As stated in Respondents' brief, the time that has elapsed to date is well short of raising constitutional concerns.
An order follows.