Opinion
No. 06-1470-ag.
February 19, 2009.
Transfer from the United States District Court for the Western District of New York (Skretny, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Petitioner's claims be DENIED, except for his delayed naturalization claim, which should be transferred back to the District Court.
For Petitioner: HO KAI TAM, pro se, Amherst, N.Y.
For Respondent: GAIL Y. MITCHELL, Assistant United States Attorney, for Kathleen M. Mehltretter, Acting United States Attorney, Buffalo, N.Y.
Petitioner Ho Kai Tam ("Tam") was legally admitted to the United States in 1996 as a Lawful Permanent Resident. In September 2004, he was convicted of mail fraud in violation of 18 U.S.C. § 1341 in the United States District Court for the Western District of New York. In December 2004, the Department of Homeland Security, Bureau of Immigration and Customs Enforcement, served Tam with a Notice to Appear, charging him as removable due to his conviction for an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). On July 11, 2005 the Immigration Judge ordered that Tam be removed to Hong Kong. Tam did not appeal to the Board of Immigration Appeals ("BIA"), and in fact withdrew his reservation to appeal. On July 7, 2005, prior to the issuance of a final removal order, Tam filed a pro se 28 U.S.C. § 2241 petition for a writ of habeas corpus in the Western District of New York, arguing that his mail fraud conviction does not constitute an aggravated felony, that he is a United States citizen or national, and that the government impermissibly delayed his application for naturalization until his conviction. The district court transferred the case to this Court pursuant to 28 U.S.C. § 1631 based on this Court's jurisdiction over nationality claims. Langhorne v. Ashcroft, 377 F.3d 175, 177 (2d Cir. 2004); 8 U.S.C. § 1252 (b)(5).
We do not have jurisdiction over the aggregated felony challenge because Tam did not exhaust his administrative remedies. See Grullon v. Mukasey, 509 F.3d 107, 111 (2d Cir. 2007). Nor do we have jurisdiction to review challenges to removal brought in habeas petitions filed, like Tam's, after June 10, 2005. Ruiz-Martinez v. Mukasey, 516 F.3d 102, 106 (2d Cir 2008). We have, however, exercised "hypothetical jurisdiction" over nationality claims where "the jurisdictional issues are complex and the substance of the claim is plainly without merit." Marquez-Almanzar v. INS, 418 F.3d 210, 216 n. 7 (2d Cir. 2005). Moreover, lack of citizenship is a prerequisite to the application of the exhaustion requirement of 8 U.S.C. § 1252(d)(1) because "[a]n assertion of United States `citizenship is . . . a denial of an essential jurisdiction fact' in a deportation proceeding." Poole v. Mukasey, 522 F.3d 259, 264 (2d Cir. 2008) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)). Assuming jurisdiction exists over Tam's nationality and citizenship claims, we find them to be meritless.
Tam claims citizenship deriving from his grandfather, but he has not alleged that either of his parents was a citizen prior to Tam's eighteenth birthday, as required by the former Section 322 of the Immigration and Naturalization Act or the subsequent provision of the Child Citizenship Act, presently found at 8 U.S.C. § 1433(a). He argues that he is a United States national based only on his registration with the Selective Service and the fact that he filed an 18 application for citizenship, which we have held to be insufficient grounds for nationality. Marquez-Almanzar, 418 F.3d at 216-19. Tam further contends that he is stateless and therefore entitled to one form or another of relief, but this is effectively a challenge to the order of removal that was not appealed to the BIA and that we cannot review. See 8 U.S.C. § 1252(d)(1); Grullon, 509 F.3d at 111. The proper forum for Tam's final claim, that his naturalization application was improperly delayed by the government, is in the district court. See 8 U.S.C. § 1421(c).
Although Tam argues that his father "acquired citizenship by law thru [sic] [Tam's] grandfather without naturalization" when Tam's grandfather became a citizen in 1972, and "as such, [Tam] should automatically acquire[] United States Citizenship," Petitioner's Br., 5, the affidavit of Tam's father states that he was admitted to the United States as a Lawful Permanent Resident in 1996, and hence was not a United States citizen.
Accordingly, for the reasons set forth above, Petitioner's petition is hereby DENIED, except for the claim of improper delay in the processing of his naturalization application, which is transferred back to the Western District of New York for further proceedings.