Opinion
00-CV-6102B
January 31, 2003
DECISION ORDER
On March 7, 2000, petitioner filed, pro se, the instant petition for habeas corpus relief, pursuant to 28 U.S.C. § 2241, in which he challenges a final order of removal issued by the United States Immigration and Naturalization Service ("INS"). The petition raises a number of grounds for relief from the order of removal including that the Immigration Judge and Board of Immigration Appeals improperly found that petitioner had not established that he was a United States citizen, pursuant to 8 U.S.C. § 1409(a), based on a claim that he was the out — of — wedlock child of a United States citizen father. (Docket #1).
On November 28, 2001, and in accordance with 28 U.S.C. § 636(c), the Hon. Charles J. Siragusa issued an Order, based upon the parties' consent, to have the undersigned conduct all further proceedings in this matter. (Docket #16). Presently pending before this Court is respondent's motion to dismiss petitioner's claim that he is a "national" of the United States and, therefore is not subject to deportation or removal. (Docket #36).
Background
Petitioner was born in France in 1956 and was admitted to the United States as a non-immigrant visitor for pleasure with authorization to remain in the United States for no more than six months. He remained in the United States beyond the six month period and on October 17, 1975 he was granted Lawful Permanent Resident Status pursuant to 8 U.S.C. § 1225. (A.R. 192).
"A.R." refers to the Certified Administrative Record of the INS proceeding in this matter. (Docket #22).
On June 7, 1977, Petitioner enlisted in the United States Army. The enlistment process included an oath of allegiance to the Unites States, which petitioner made. Petitioner served in the Army until his discharge, almost three year later, on March 21, 1980. (A.R. 54).
On October 28, 1981, petitioner filed a petition for Naturalization which was "deferred [on March 26, 1983] until he can resolve/explain a support issue". (Docket #31, Respondent's Memorandum of Points and Authorities, Ex. 2)
On November 14, 1997, the INS charged petitioner with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), on the basis of his being an alien twice convicted of crimes involving moral turpitude, and under 8 U.S.C. § 1227(a)(2)(A)(iii), on the basis of his being an alien convicted of an aggravated felony. (A.R. 226). On April 1, 1999, the INS filed additional charges of removability against petitioner under 8 U.S.C. § 1227(a)(2)(A)(iii), on the basis of his being an alien convicted of aggravated felonies for two drug convictions in 1998 and 1999, and under 8 U.S.C. § 1227(a)(2)(B)(i), on the basis of his being an alien convicted of a controlled substance violation. (A.R. 210). Petitioner has been held in detention by the INS since March 1999.
During a hearing on the INS' charges of removability, petitioner contested his removal on the ground that, pursuant to 8 U.S.C. § 1409(a), he is a United States citizen because he is the out-of-wedlock son of a United States citizen. At the hearing, petitioner contended that he was the son of Benny Waters, a deceased jazz musician, who had spent a great deal of time in France, petitioner's birthplace. The Immigration Judge found that petitioner was removable and that he, as a matter of law, had not met his burden of establishing that he was a United States citizen based upon the citizenship of his purported father — i.e. derivative citizenship. Specifically, the
Immigration Judge found that, regardless of any proof of paternity that the petitioner might introduce, he had failed to provide any documentation that the father had agreed in writing to provide financial support for the petitioner and that the petitioner had been legitimated under the law of his domicile or residence. See 8 U.S.C. § 1409(a). (A.R. 106-115). On June 21, 1999, the Immigration Judge ordered that the petitioner be removed to France. (A.R. 115).
Petitioner appealed the Immigration Judge's decision on the sole basis that the Immigration Judge had improperly found that he could not establish legitimation. On February 7, 2000, the Board of Immigration Appeals ("BIA") dismissed the appeal and found that petitioner had "not shown by a preponderance of credible evidence that he acquired United States citizenship under 8 U.S.C. § 301(g) of the Act [ 8 U.S.C. § 1401(g)]." (A.R. 3-5). On or about June 26, 2000, the INS issued a decision continuing petitioner's detention. (Docket #28, Petitioner's Memorandum of Law, pp. 1-2.)
Following the BIA's decision, petitioner filed a petition in this Court and also filed a petition for direct review in the United States Court of Appeals for the Second Circuit. On January 18, 2002, the Second Circuit ordered that the petition for review be remanded to the District Court for a de novo determination on petitioner's claim of citizenship. In so remanding, the Second Circuit cited to 8 U.S.C. § 1252(b)(5)(B) and Agosto v. Immigration and Naturalization Service, 436 U.S. 748, 756 (1978) which, as stated by the Second Circuit, held that "where a court of appeals finds that a genuine issue of material fact exists regarding a claim of U.S. citizenship, the proceeding is to be transferred to a district court for de novo determination of citizenship." (See Docket #17, which attaches a copy of the Second Circuit's Order). The Second Circuit's Order is silent as to what the genuine issue of material fact is in this case and simply cites to Agosto and its holding.
On February 27, 2002, this Court appointed, pro bono, Margaret A. Catillaz, Esq. and Frank Novak, Esq., of the law offices of Harter, Secrest Emery LLP, to represent petitioner in this proceeding. (Docket #18). On March 28, 2002, this Court issued a letter Order (Docket #19) denying without prejudice an earlier motion to dismiss filed by respondent (Docket #6), which had been stayed by Judge Siragusa on November 20, 2001 because of the pendency of the petition for review in the Second Circuit. (Docket #15).
On December 20, 2002, petitioner moved to amend his petition. (Docket #36). Petitioner now asserts that he is a "National" of the United States based upon his service in the United States Army from 1977 to 1980 and upon the oath taken pursuant to such service. According to petitioner, he is thereby not subject to deportation or removal.
Discussion
The law clearly states that prior to seeking judicial review of a final order of deportation in a habeas corpus proceeding, a petitioning alien must first exhaust his administrative remedies. Kurfees v. I.N.S., 275 F.3d 332 (4th Cir. 2001); Guida v. Nelson, 603 F.2d 261 (2d Cir. 1979); Podoprigora v. I.N.S., 98 F. Supp.2d 75, 78-79 (D.Mass. 2000); Rodriguez v. McElroy, 53 F. Supp.2d 587 (S.D.N.Y. 1999); Lleo-Fernandez v. I.N.S., 989 F. Supp. 518 (S.D.N.Y. 1998).
The doctrine of exhaustion of administrative remedies requires a party to pursue all possible relief within the deciding agency before seeking federal judicial review of an unfavorable administrative decision. Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995). "Either `explicit statutory language' requiring intra-agency consideration or an administrative scheme offering non-judicial claim resolution will activate the doctrine." Theodoropoulos v. I.N.S., 313 F.3d 732, (2d Cir. 2002) (quoting Howell v. I.N.S., 72 F.3d at 291). Where exhaustion is required, a court must dismiss any unexhausted claim for lack of jurisdiction. Id. See also, DiLaura v. Power Authority of State of N.Y., 982 F.2d 73, 79 (2d Cir. 1992).
Title Eight of United States Code, Section 1252(d) provides explicit statutory language which requires exhaustion of agency remedies before the appeal of an Immigration Judge's decision may be made to the federal court. That provision provides, in relevant part:
(d) Review of final orders. A court may review a final order of removal only if —
(1) the alien has exhausted all administrative remedies available to the alien as of right. . . .8 U.S.C. § 1252(d).
Exhaustion of administrative remedies may not be required, however, when (1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992) (internal quotations omitted).
In the instant case, petitioner did not raise his `nationality' claim at any point during his litigation before either the Immigration Judge or the Board of Immigration Appeals. Furthermore, petitioner does not, nor can he claim to fall within one of the recognized exceptions to the exhaustion of administrative remedies requirement. Instead, petitioner argues that his nationality claim is properly before this Court because it is synonymous with his citizenship claim, which was transferred to this Court by the Second Circuit Court of Appeals pursuant to 8 U.S.C. § 1252(b)(5)(B). According to petitioner, this Court's jurisdiction to decide issues of material fact regarding his citizenship claim also provides jurisdiction over the national claim.
Petitioner contends that since the respondent has the ultimate burden of proving petitioner is an alien, and since petitioner generally denied being an alien, this denial amounted to a claim for citizenship or nationality. Therefore, according to petitioner, since the Second Circuit remanded the case to this Court on the issue of whether petitioner is an alien, the `national' claim is also properly before this Court.
What the petitioner is essentially arguing, however, is that respondent must prove to the negative all possible exceptions to petitioner's alien status. Certainly, the law does not require such an unreasonable burden to be placed on respondent.
On the contrary, as correctly established by petitioner in his Reply to Government's Response (Docket #41), an individual's citizenship and national status are determined by separate and distinct provisions of law. Compare 8 U.S.C. § 1401(g) and 1409 with 8 U.S.C. § 1101(a)(22)(B). As such, a`citizenship' claim is separate and distinct from a `national' claim and this Court's jurisdiction to review the former does not constitute jurisdiction over the latter.
Although, petitioner's claim of United States citizenship has been specifically raised and administratively exhausted, his `national' claim has not. Allowing petitioner's `national' claim to go forward now, would be allowing him to bypass the administrative process. The requirement of exhaustion is "guided by the idea `that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer'." Kurfees, 275 F.3d at 337 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). As such, this Court finds that petitioner's `national' claim is unexhausted and must be dismissed.
Conclusion
For the foregoing reasons, respondent's motion (Docket #40) is GRANTED and the petitioner's `national' claim (Docket #36, 38) is dismissed without prejudice.
IT IS SO ORDERED.