Opinion
03-CV-3825
November 6, 2003
MEMORANDUM AND ORDER
Petitioner seeks a writ of habeas corpus in this court Because his petition raises a claim to United States citizenship, it is transferred to the Court of Appeals for the Second Circuit.
I. Facts and Procedural History
Petitioner was born in Haiti on May 8, 1965. He entered the United States on a visitor's visa in September 1974 and began living with his mother, who naturalized in 1975. Petitioner became a lawful permanent resident on July 19, 1983.
In March 1996, petitioner was convicted of conspiracy to commit bank fraud and bank fraud. In January 1997, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against petitioner, charging him as deportable as an alien who has been convicted of an aggravated felony and an alien who has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. In September 1997, an immigration judge found petitioner deportable as charged and statutorily ineligible for relief from deportation under former section 212(c).
The proceedings were reopened in September 1999 to allow petitioner to apply for 212(c) relief pursuant to Henderson v. INS, 157 F.3d 106, 129 (2d Cir. 1998) (holding that restrictive amendments to 212(c) did not apply to individuals placed in deportation proceedings prior to the enactment of the amendments). Before the hearing, however, petitioner was convicted of credit card fraud and incarcerated again. The proceedings were administratively closed due to his imprisonment.
In August 2002, the proceedings were reopened again. At this time, the INS filed additional allegations of deportability based on petitioner's conviction for credit card fraud.
At a hearing in October 2002, petitioner asserted a claim that he had derived United States citizenship from his mother. His attorney was given additional time to submit evidence on the claim, but when the hearing resumed in November 2002, his attorney withdrew the claim. No explanation is provided for this in the transcript of those proceedings. The immigration judge later noted in his opinion that the citizenship claim was withdrawn by counsel because it had been determined after further investigation that petitioner was, in fact, not a citizen. In the Matter of Michael Jean-Pierre, No. A-26-144-423 at 5 (November 7, 2002).
In November 2002, the immigration judge found petitioner deportable as charged and statutorily ineligible for 212(c) relief because of his conviction for credit card fraud in 2000. The Board of Immigration Appeals ("BIA") affirmed the decision on August 1, 2003.
Petitioner filed a writ of habeas corpus in this court on July 25, 2003. In the petition, he asserts a claim to citizenship derived from his mother.
On October 8, 2003, this court declined to grant petitioner a stay of deportation. Since then, petitioner appears to have been deported back to Haiti.
II. Law
A. Jurisdiction
Jurisdiction over citizenship claims raised in the context of habeas petitions lies, in the first instance, with the courts of appeals. 8 U.S.C. § 1252(b)(5); see also Moussa v. INS, 302 F.3d 823 (8th Cir. 2002); Baeta v. Sonchik 273 F.3d 1261 (9th Cir. 2001); Batista v. Ashcroft 270 F.3d 8 (1st Cir. 2001);Dorival v. Ashcroft, 2003 WL 21997740 (E.D.N.Y. Aug. 21, 2003).
B. Transfer
A habeas petition filed in a district court that raises a claim to citizenship may be transferred to the court of appeals pursuant to 28 U.S.C. § 1631. This provision allows a court to transfer a civil action "in the interest of justice" if it lacks jurisdiction to consider the claim. Id The action is then allowed to proceed as if it had been filed in the proper forum. Id. A district court may abuse its discretion if it refuses to transfer when the case, if filed anew in the proper forum, would be considered untimely. See Paul v. INS, No. 01-4027, slip. op. at 6389 (2d Cir. Oct. 9, 2003).
C. Petitions for Review
A petition for review of a BIA determination must be filed within 30 days. 8 U.S.C. § 1252(b)(1). An untimely petition will deprive the court of jurisdiction. Malvoisin v. INS, 268 F.3d 74, 75-76 (2d Cir. 2001). Petitions for review should be filed with the court of appeals for the judicial circuit in which the immigration proceedings were completed. 28 U.S.C. § 1252(b)(2).
D. Derivative Citizenship
Section 321(a) of the Immigration and Nationality Act provides:
A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, 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; and if (4) Such naturalization takes place while such child is under the age of eighteen years; and (5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years."
Section 321(a) was repealed by the Child Citizenship Act of 2000, but the repeal does not operate retroactively. See Drakes v. Ashcroft 323 F.3d 189, 190-91 (2d Cir. 2003). The acquisition of citizenship is governed by the laws in effect when the applicant was born, Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998).
III. Application of Law
Jurisdiction over petitioner's habeas petition lies, in the first instance, with the court of appeals because it raises a claim to United States citizenship. The petition was timely filed in this court, but if petitioner were forced to re-file in the court of appeals, his petition would be untimely. Pursuant to 28 U.S.C. § 1631, it is "in the interest of justice" to transfer the petition rather than dismissing it.
It appears that, pursuant to 28 U.S.C. § 1252(b)(2), the proper venue for consideration of the citizenship claim is the Court of Appeals for the Fifth Circuit because petitioner's immigration proceedings took place in Oakdale, Louisiana. It would nevertheless be inappropriate for this court to transfer to a court of appeals in another circuit. Thus, the petition is transferred to the Court of Appeals for the Second Circuit.
Although this court is deprived of jurisdiction to consider petitioner's citizenship claim in the first instance, it should be noted that the claim appears to lack any merit. At the time of the naturalization of petitioner's mother in 1975, petitioner was not "residing in the United States pursuant to a lawful admission for permanent residence," § 321(a)(5), supra, because he was present in the country on a visitor's visa. In addition, petitioner did not "begin to reside permanently in the United States while under the age of eighteen years," § 321(a)(5), supra, because he did not obtain legal permanent residency until more than two months after his eighteenth birthday. Since it appears that petitioner has failed to satisfy either provision of section 321(a)(5), his claim to derivative citizenship is without merit.
SO ORDERED.