Opinion
Civil Action No. 04-110.
June 3, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2241, by an individual who has been deported to Jamaica. In this habeas petition, Mr. Johnson is not challenging his deportation, instead he seeks "to retrieve his United States citizenship." For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be transferred to the Third Circuit for review of Petitioner's nationality claim.
See "Request For Change Of Return Address Due To the Expedited Imminent Deportation" [Docket Entry No. 3].
I. BACKGROUND
In preparing this Report and Recommendation I have reviewed the following documents: Mr. Johnson's § 2241 petition (with exhibits), and the Government's response (with exhibits). Many of the underlying facts in this case are undisputed. Where there is a dispute, or lack of confirmation, as to any material fact, it will be specifically noted.
Petitioner, Alphonso Wayne Johnson, was born in Jamaica on January 11, 1968. He entered the United States on July 27, 1979, as a lawful permanent resident.
Petitioner represents that he was arrested in 1986 for the sale of crack cocaine, and was sentenced in 1988 to a term of five years probation.
On August 23, 1989, Petitioner pled guilty to kidnaping in the second degree in violation of Section 135.20 of the New York State Penal Law. He was sentenced to a seven to twenty-one year term of imprisonment.
Petitioner was released from state custody on June 19, 2003.
On December 18, 2003, an Immigration Law Judge in York, Pennsylvania ordered Petitioner to be removed from the United States to Jamaica. Petitioner waived his right to appeal to the Board of Immigration Appeals. See Government's Response [Docket Entry No. 6]:Exhibit "1."
On January 12, 2004, Petitioner filed the instant § 2241 petition. In this habeas petition, Mr. Johnson represents that he is not challenging his impending deportation. Instead, he asks this court to "grant this petition [so] that Petitioner will be able to return to the United States and reclaim his status as a United States citizen in the near future." Petitioner argues that he has "derivative citizenship under the status of his father who became a Naturalized U.S. Citizen in January 1981, while Petitioner was at the age of thirteen (13)." See Habeas Petition [Docket Entry No. 1] at unnumbered pp. 1-2.
Petitioner was deported on January 24, 2004.
The Government has responded to Mr. Johnson's § 2241 petition, arguing: (1) this Court has no jurisdiction to review the factual determinations or discretionary decisions of the Attorney General; (2) Petitioner's claim for habeas relief is moot as he is no longer in custody; and (3) Petitioner has failed to exhaust his administrative remedies to review the Immigration Law Judge's order of removal. See Government's Response [Docket Entry No. 6] at pp. 2-4.
II. DISCUSSION
In his habeas petition, Mr. Johnson argues that BICE/INS has withheld pertinent information which would prove that he is a citizen of the United States, and that BICE/INS violated his due process rights when they denied his August 27, 2003 Application for Certificate of Citizenship. Petitioner asks this Court to "to kindly read into the recommendation from BICE/INS to Petitioner to take the deportation, and go to the United States Embassy in Jamaica, and inform them of his situation." See Habeas Petition at numbered pp. 5-16.To the extent Petitioner was seeking release from INS custody, this request for habeas relief is moot because Petitioner is no longer in INS custody and appears to have withdrawn any challenge to his deportation.
The mere fact that Petitioner has been deported does not moot his habeas petition. His future ineligibility for readmission to the United States preserves his Article III standing. See Shittu v. Elwood, CA No. 02-682, 204 F. Supp.2d 876, 878 (E.D. Pa. 2002).
Petitioner also challenges the denial of his August 27, 2003 Application for Certificate of Citizenship and wants this Court to help him "retrieve his United States Citizenship." See "Request For Change Of Return Address Due To the Expedited Imminent Deportation" [Docket Entry No. 3].
By decision dated November 12, 2003, the United States Citizenship and Immigration Services ["USCIS"] denied Petitioner's Application for Citizenship, concluding that he did not derive citizenship as "a child born outside of the United States of alien parents" under Section 321(a) of the Immigration and Nationality Act (as amended). Finding that Petitioner's "claimed father" became a naturalized citizen on January 20, 1981, and that Petitioner's mother became a U.S. citizen "not before February 03, 2000," the USCIS concluded that Petitioner failed to meet the requirements of § 321(a):
"Inasmuch as only one of your parents became a United States citizen before your eighteenth birth date, and since your mother and father did not obtained [sic] a legal separation/divorce, with legal custody over you accorded to your citizen parent before your eighteenth birth date, you did not derive citizenship as a result of the naturalization of either parent."
Government's Response [Docket Entry No. 6]:Exhibit "2."
Petitioner was advised of his right to appeal the November 12, 2003 decision to the Administrative Appeals Unit in Washington, D.C. He did not file an appeal. Id.
"An individual may seek judicial review of a claim of derivative citizenship through one of two channels. If an individual applies to the INS for a certificate of derivative citizenship, and the application is denied, the applicant may appeal the decision to the Administrative Appeals Unit. See 8 C.F.R. § 322.5(b). If the applicant is denied citizenship by the Administrative Appeals Unit, he or she may then bring an action in federal district court seeking a declaratory judgment of citizenship, see Barham v. United States, 1999 WL 1092560 at *2 (E.D.N.Y. 1999) (`Only after a certificate of citizenship is denied following this administrative procedure does the district court have jurisdiction to determine citizenship'), unless such claim `arose by reason of, or in connection with any removal proceeding . . ., or is in issue in any such removal proceeding.' See 8 U.S.C. § 1503(a)(2000). Where an individual is subject to removal proceedings, and a claim of derivative citizenship has been denied, that individual may seek judicial review of the claim only before the appropriate court of appeals, not a district court. See 8 U.S.C. § 1252(b)(5); See also Alvarez-Garcia v. United States, 234 F. Supp.2d 283, 289 (S.D.N.Y. 2002).Henriquez v. Aschcroft, 269 F. Supp.2d 106, 107-108 (E.D.N.Y. 2003).
Petitioner's claim of nationality, raised in the context of removal proceedings, is governed by 8 U.S.C. § 1252(b). This section provides review of a claim of nationality by the court of appeals, if the petitioner is subject to a final order of removal, and if the petition for review is filed no later than 30 days after the date of the final order of removal. The instant habeas petition was timely filed. I believe it should be transferred to the Third Circuit for review of Mr. Johnson's nationality claim.
I believe jurisdiction lies in the Third Circuit under § 1252(b), regardless of the fact that Petitioner does not, at this point, challenge his deportation. See Austin v. INS, 308 F. Supp.2d 125, 127 (E.D.N.Y. 2004). Petitioner's waiver of administrative appeal of the denial of his application for derivative citizenship may affect whether the Third Circuit will hear his case, but it does not create jurisdiction in this court.
Under § 1252(b), if the Third Circuit, upon review of the pleadings and affidavits, finds no genuine issue of material fact about Petitioner's nationality, it will decide the nationality claim. If however, the Circuit does find an issue of fact to resolve, the matter will be returned to the district court for a new hearing on the nationality claim. See 8 U.S.C. § 1252(b)(5)(A) and (B).