Daly v. Gonzales

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-1232

LEARIE A. DALY,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A-035-751-059)

Argued: February 3, 2005 Decided: May 2, 2005

Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and James C.
CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

Affirmed by unpublished opinion. Senior Judge Cacheris wrote the
majority opinion, in which Chief Judge Wilkins joined. Judge
Duncan wrote a dissenting opinion.

ARGUED: MaryRose Ozee Nwadike, Silver Spring, Maryland, for
Petitioner. Hillel Ryder Smith, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, Civil Division, Terri J. Scadron, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
CACHERIS, Senior District Judge:

Learie Arlington Daly, a citizen of Trinidad, petitions for

review of a final order of removal based on a 1996 conviction for

common law battery in Maryland. We affirm.

I.

Daly entered the United States from Trinidad on or about

December 18, 1976, as a lawful permanent resident at the age of

five. While in high school, Daly joined the United States Marine

Corps, and formally enlisted upon graduation from high school on

July 11, 1989. On September 6, 1993, Daly was honorably discharged

from active duty.

On September 30, 1996, Daly was arrested on charges that he

had beaten his two daughters, ages four and two. On October 4,

1996, Daly was charged with two counts of common law battery and

two counts of parental child abuse. On December 17, 1996, Daly

pled guilty to two counts of common law battery in the United

States District Court for the District of Maryland and the child

abuse charges were dismissed. Daly was sentenced to six years of

imprisonment, all of which were suspended, and three years of

supervised probation.

On July 22, 1997, Daly was arrested and charged with child

abuse, second degree assault and possession of a deadly weapon with

intent to injure, and violating his probation. On October 27,

2
1998, Daly was convicted of violating the terms of his probation

and his original six year sentence was imposed.

On May 14, 1999, the Immigration and Naturalization Service

(“INS”) charged Daly with removability under section

237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”),

18 U.S.C. § 1101 et seq., as an alien who has been convicted of an

aggravated felony, to wit, a crime of violence as defined in

section 101(a)(43)(F) of the INA. See 8 U.S.C. §§ 1101(a)(43)(F),

1227(a)(2)(A)(iii). An “aggravated felony” is defined to include

“a crime of violence (as defined in 18 U.S.C. § 16) for which the

term of imprisonment is at least one year.” Id. A “crime of

violence” is defined to include “an offense that has as an element

the use, attempted use, or threatened use of physical force against

the person or property of another.” 18 U.S.C. § 16.

Between 2001 and 2002, Daly appeared before an immigration

judge, who rescheduled his case several times to allow him an

opportunity to, inter alia, apply for naturalization.1 On July 9,

2001, the INS denied Daly’s application for naturalization, finding

that his aggravated felony conviction precluded him from

establishing good moral character.2 On August 14, 2001, the INS

1
Pursuant to 8 U.S.C. § 1440(b)(1), an honorably discharged
veteran of the United States armed forces may apply for
naturalization during deportation proceedings against him.
2
An applicant for naturalization must demonstrate, inter alia,
that he is “a person of good moral character” for at least five
years preceding the filing of his application. See 8 U.S.C.

3
denied Daly’s request for a hearing regarding the denial. On

February 21, 2002, the United States District Court for the

District of Maryland dismissed Daly’s petition for review of the

denial of his application.

On June 25, 2002, Daly filed a motion to terminate his removal

proceedings on the basis that he was a “national” of the United

States. On August 1, 2002, the immigration judge denied Daly’s

motion and ordered him removed to Trinidad. On March 14, 2003, the

Board of Immigration Appeals (“the Board”) remanded the case for

the immigration judge to determine whether Daly was removable as

charged. On June 16, 2003, the immigration judge found Daly

removable as an aggravated felon and ordered him removed. On

February 13, 2004, the Board affirmed the immigration judge’s

decision. Daly has filed a petition seeking review of the Board’s

February 13, 2004 ruling.

II.

This Court reviews legal issues determined by the Board of

Immigration Appeals de novo. Lopez-Soto v. Ashcroft, 383 F.3d 228,

234 (4th Cir. 2004)(citations omitted). The Court always has

jurisdiction to determine whether the facts relevant to its

§ 1427(a). No person shall be regarded as, or found to be, a
person of good moral character if he has been convicted of an
aggravated felony during the period for which good moral character
is required to be shown. 8 U.S.C. § 1101(f)(8).

4
jurisdiction exist. Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.

2000)(citations omitted).

III.

Before reaching the merits of the appeal, we must determine

whether we have jurisdiction to consider Daly’s argument. Under

the INA, “[a]ny alien who is convicted of an aggravated felony at

any time after admission is deportable.” 8 U.S.C. §

1227(a)(2)(A)(iii)(2004). Under section 1252(a)(2)(C) of the INA:

Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed a criminal offense covered in section .
. . 1127(a)(2)(A)(iii) . . . of this title for which both
predicate offenses are, without regard to their date of
commission, otherwise covered by section 1227(a)(2)(A)(i)
of this title.

8 U.S.C. § 1252(a)(2)(C)(2004).

However, the Court has rejected a narrow reading of its role

in reviewing final orders of removal under this jurisdiction-

limiting provision. See Lewis v. I.N.S., 194 F.3d 539, 542 (4th

Cir. 1999). Rather, we have jurisdiction to review the two facts

which determine whether we have jurisdiction: (1) whether the

petitioner is an alien, and (2) whether he is “removable by reason

of having committed a criminal offense” listed in section

1252(a)(2)(C). Id.

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 IV.

Daly contests both these facts and argues that: (1) he is not

an alien because he is a United States national; and (2) his

conviction of two misdemeanor common law battery offenses do not

constitute a crime of violence as defined by section 101(a)(43)(F)

of the INA and thus do not fit the definition of an aggravated

felony. These are the two issues before us.

A.

Section 1101(a)(3) of the INA defines an “alien” as “any

person not a citizen or national of the United States.” 8 U.S.C.

§ 1101(a)(3)(2004). A “national of the United States” is “a

citizen of the United States, or a person who, though not a citizen

of the United States, owes permanent allegiance to the United

States.” 8 U.S.C. § 1101(a)(22)(2004).

Daly claims that he is not an alien because he has acquired

non-citizen “national” status through objective manifestations of

allegiance. He claims to have manifested his allegiance by

applying for citizenship, residing in the United States for twenty-

six years, serving in the U.S. Marine Corps, and taking an oath

upon enlisting with the Marine Corps. However, none of these

alleged manifestations of allegiance are sufficient to change his

status from alien to national of the United States.

6
 1.

This Court has not addressed whether filing an application for

naturalization establishes nationality in the immigration context

to determine whether a non-United States citizen may enjoy the

rights and benefits of United States nationality. The Court

previously held in a different context that filing an application

for naturalization does establish nationality.3

The Ninth Circuit, however, has addressed the issue in

precisely the same context we have in this case, and held that an

alien does not become a national of the United States for purposes

of exercising nationality rights simply by completing an

application for naturalization and giving a statement of

allegiance. Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th

Cir. 2003). The court began its analysis by noting that

traditionally, “national of the United States” encompassed only

citizens of the United States and non-citizens born in territories

of the United States. Id. at 968.

3
In Morin v. United States, 80 F.3d 124, 126 (4th Cir. 1996),
the defendant was charged with the murder of “a national of the
United States” pursuant to 18 U.S.C. § 2332(a). The defendant
tried to escape that offense by alleging that the victim was not a
national of the United States. Id. The Court ruled that because
the victim was a permanent resident alien of the United States who
had applied for United States citizenship, he was indeed “a
national of the United States.” Id.
However, Morin concerned the reach of a federal murder statute
and is not controlling where, as here, a person’s nationality
status determines whether he can enjoy the rights and benefits of
United States nationality and avoid deportation.

7
 The court then considered the text and context of section

1101(a)(22), which defines “national of the United States” as “a

person who, though not a citizen of the United States, owes

permanent allegiance to the United States.” Id. The court stated

that a “naturalization applicant cannot rightly be said to owe

permanent allegiance, because naturalization applications are often

denied or withdrawn.” Id. (emphasis in original). Turning to

statutory context, the court noted that section 1101(a)(23)

provides that “[t]he term ‘naturalization’ means the conferring of

nationality of a state upon a person after birth, by any means

whatsoever.” Id. This provision which immediately follows the

definition of a “national of the United States” provides that

“naturalization” is the path by which a person attains nationality

after birth. Section 1101(a)(23) is thus consistent with the

conclusion that one may become a “national of the United States”

only through birth or by completing the naturalization process.

Id.

The court found further support for its interpretation of

“national of the United States” in 8 U.S.C. § 1408, which lists

four categories of persons who are classified as nationals, but not

citizens, of the United States. Id. Each category relates in some

way to birth in an outlying possession of the United States.

Applying the canon of expressio unius est exclusio alterius, the

court concluded that the fact that Congress has defined “national”

8
as including only those four categories of persons is significant.

Id. at 969-70 (citing Boudette v. Barnette, 923 F.2d 754, 756-57

(9th Cir. 1991)); see also United States v. Giordano, 469 F.2d 522,

529 (4th Cir. 1972).

Section 1481 of Title 8, which sets forth a number of ways in

which a “person who is a national of the United States whether by

birth or naturalization, shall lose his nationality,” also provided

support. 8 U.S.C. § 1481(a). This section implies that a person

can become a “national of the United States” only through either

birth or nationalization. Perdomo-Padilla, 333 F.3d at 970.

The court also noted that the Petitioner’s interpretation of

section 1101(a)(22) could not be reconciled with 8 U.S.C. § 1429,

which provides that “no person shall be naturalized against whom

there is outstanding a final finding of deportability . . . and no

application for naturalization shall be considered by the Attorney

General if there is pending against the applicant a removal

proceeding.” 8 U.S.C. § 1429. Because the INA permits the removal

of aliens only, and section 1429 allows the removal of individuals

with pending naturalizations, the court concluded that it was clear

that Congress viewed applicants for naturalization as aliens and

not nationals. Id. at 970.

Finally, the court turned to the regulatory context of section

1101(a)(22) and noted that although the INS has not issued

regulations defining “national” under section 1101(a)(22), at least

9
one regulation addresses the meaning of “national of the United

States” in a different context. Id. Title 14 C.F.R. § 1259.101(c)

defines “national of the United States” for purposes

of a NASA grant program as “a citizen of the United States or a

native resident of a possession of the United States.” It does not

refer to or include a citizen of another country who has applied

for United States naturalization.

The court then declined to apply Morin in the immigration

context and ultimately concluded that the only way to become a

“national of the United States” was through birth or

naturalization. Id. at 972.

Other courts of appeals have adopted the Ninth Circuit’s

holding. See Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir.

2003)(“we now join the Court of Appeals for the Ninth Circuit in

holding that simply filing an application for naturalization does

not prove that one ‘owes a permanent allegiance to the United

States’”); United States v. Jimenez-Alcala, 353 F.3d 858, 861 (10th

Cir. 2003)(adopting the Ninth’s Circuit’s analysis and conclusion

that “the term ‘national,’ when used to describe non-citizens,

refers only to those born in territories of the United States”).

We also find the Ninth Circuit’s analysis persuasive and

conclude that in the immigration context, an alien does not become

a national of the United States simply by completing an application

for naturalization and giving a statement of allegiance. In the

10
words of the Ninth Circuit, the “Petitioner’s interpretation

creates an absurd result with respect to those persons whose

applications for naturalization are, in fact, denied.” Perdomo-

Padilla, 333 F.3d at 969. Daly did not attain the status of

national of the United States by applying for naturalization.

2.

We also reject Daly’s claim that he is a national by virtue of

residing for twenty-six years in the United States. The Court

joins the other courts of appeals that have held that a person who

merely resides for a long period in the United States does not

become a national of the United States. See Oliver v. I.N.S., 517

F.2d 426, 427-28 (2d Cir. 1975)(petitioner who resided exclusively

in the United States for twenty years since early childhood does

not “owe allegiance” and is not a “national”); Hughes v. Ashcroft,

255 F.3d 752, 756 (9th Cir. 2001); Carreon-Hernandez v. Levi, 543

F.2d 637, 638 (8th Cir. 1976); accord Shekoyan v. Sibley Intern.

Corp., 217 F. Supp. 2d 59, 66-67 (D.D.C. 2002). A long residency

period does not demonstrate the requisite permanent allegiance to

the United States. Daly did not become a national of the United

States by residing in the United States for twenty-six years.

11
 3.

Daly’s claim that he is a United States national because he

served in the United States Marine Corps and took the oath upon

enlisting also lacks merit. The Ninth Circuit recently held that

an alien who has served in the United States armed forces and taken

the military oath has not become a national of the United States.

Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938 (9th Cir. 2004). The

court explained that its ruling in Perdomo-Padilla that birth and

full naturalization are the only two ways to attain the status of

“national” precluded the petitioner’s argument. Id. at 940.

(emphasis in original). However, the court explained that even if

it were free to decide that the petitioner could achieve national

status by some act other than full naturalization, it would still

conclude that the military oath does not demonstrate that the

person taking the oath “owes permanent allegiance to the United

States” as required by 8 U.S.C. § 1101(a)(22). Id.

We find the Ninth Circuit’s analysis in Reyes-Alcaraz

persuasive and hereby adopt that analysis. Daly did not become a

national of the United States by serving in the Marine Corps and

taking the oath upon enlisting.

For the foregoing reasons, the Court finds that Daly is an

“alien” as defined by the INA.

12
 B.

Daly argues that he is not removable because he has not been

convicted of a crime of violence and therefore did not commit an

aggravated felony. This argument lacks merit.

Daly argues that the Board erred in looking to the Application

for Statement of Charges/Statement of Probable Cause when

determining whether battery was a crime of violence. Daly was

convicted of common law battery, a crime that is not necessarily a

crime of violence. Under Maryland law, a battery is defined as the

“unlawful beating of another,” and includes “any unlawful force

used against a person of another, no matter how slight,” State v.

Duckett, 510 A.2d 253 (Md. 1986)(emphasis in original). Some

courts call crimes like common law battery that sometimes are, and

sometimes are not, crimes of violence, divisible crimes. See,

e.g., Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003).

Daly relies on a single sentence in Lewis v. I.N.S. to support

his position: “We cannot go behind the offense as it was charged to

reach our own determination as to whether the underlying facts

amount to one of the enumerated crimes” [and thus whether

petitioner is removable under INA § 242(a)(2)(C), 8 U.S.C. §

1252(a)(2)(C)]. 194 F.3d at 543 (citing Hall v. I.N.S., 167 F.3d

852, 855 (4th Cir. 1999)). However, Daly’s reliance on Lewis is

misplaced. In Lewis, the petitioner admitted that he had committed

an aggravated felony, and the only question before the Court was

13
whether he committed it at a time when it could be a basis for his

removal. 194 F.3d at 542-43. Accordingly, the Court could

determine this issue by looking solely at INA section

237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

Daly acknowledges that the Board may review the record of

conviction where there is a divisible offense. (See Pet’r Br. at

27). However, he argues that under section 240(c)(3)(B) of the

INA, 8 U.S.C. § 1229a(c)(3)(B), the record of conviction does not

include Maryland’s Application for Statement of Charges, which he

likens to a police report. (Id.) Yet precedent from this and

other courts of appeals indicate that the Application for Statement

of Charges is part of the charging document, and thus part of the

record of conviction which the Board may consider.

Based on the Court’s opinion in United States v. Kirksey, 138

F.3d 120 (4th Cir. 1998), the Board decided that it could look to

the Application for Statement of Charges to determine whether the

common law battery was a crime of violence in Daly’s case. The

issues in Kirksey were: (1) whether assault and battery convictions

constitute crimes of violence for purposes of the Sentencing

Guidelines; and (2) if they are not crimes of violence, what

portions of the state record can be consulted to determine whether

they are. Id. at 122.

In Kirksey, the Court noted that normally a categorical

approach is used to determine whether a conviction constitutes a

14
crime of violence. Id. at 124. A categorical approach relies only

on (1) the fact of conviction and (2) the definition of the prior

offense. Id. (citations omitted). However:

where the definition of the prior crime of conviction is
ambiguous and will not necessarily provide an answer to
whether the prior conviction was a crime of violence, we
look beyond the definition of the crime to examine the
facts contained in the charging document on which the
defendant was convicted.

Id.

Given the definition of battery, it was unclear whether the

Court could say categorically that the conduct encompassed in the

crime of battery constitutes the use of physical force against the

person of another to the degree required to constitute a crime of

violence. Id. at 125. The Court then explained that the facts

contained in the Application for Statement of Charges/Statement of

Probable Cause were incorporated into the charging document, and

thus could be consulted to determine whether the conduct

constituted a crime of violence. Id. at 125-26. Under Maryland

law, because a statement of charges is a charging document, it must

contain “a concise and definite statement of the essential facts of

the offense with which the defendant is charged.” Id. at 126

(citing Md. Rule 4-202).4 Two of the charging documents involved

in Kirksey’s prior convictions began with the clause: “Upon the

4
Maryland Rule 4-202 provides: “A charging document shall
contain . . . a concise and definite statement of the essential
facts of the offense with which the defendant is charged . . . .”

15
facts contained in the application of [complaining witness], it is

formally charged . . . .” Kirksey, 138 F.3d at 126.

The Court explained:

By incorporating the facts of the complaining witnesses’
statements, the charging documents thus comply with
Maryland Rule 4-202. Moreover, the facts so incorporated
are filed with the charging document, as required by
Maryland Rule 4-211. Accordingly, under Maryland
procedure, the affidavits of complaining witnesses in
these circumstances were not mere testimony providing
underlying facts for the issuance of a charging document;
they served to supply the facts of the charges as
required by Maryland Rule 4-202.

Id.

The Court has also held that where it is unclear from the

definition of the crime whether the crime was committed by violent

means so as to constitute a violent felony under 18 U.S.C.

924(e)(2)(B)(ii), the sentencing court must examine the charging

papers and the jury instructions. United States v. Cook, 26 F.3d

507, 509 (4th Cir. 1994). Moreover, other courts of appeals have

held that a judge may look beyond the definition of the crime to

determine whether an alien committed a crime of violence.

The Second Circuit has held that “[i]n reviewing a conviction

under a divisible statute, the categorical approach permits

reference to the record of conviction for the limited purpose of

determining whether the alien’s conviction was under the branch of

the statute that permits removal.” Dickson, 346 F.3d at 48-49.

The court went on to explain that “‘the record of conviction’ is

statutorily defined as including . . . the charging document . . .

16
.” Id. at 53 (citing INA section 240(c)(3)(B), 8 U.S.C. §

1229a(c)(3)(B)).

The Ninth Circuit has explained that “[i]f the statute of

conviction is not a categorical match because it criminalizes both

conduct that does and conduct that does not qualify as an

aggravated felony,” the court takes a “modified categorical

approach,” and conducts “a limited examination of documents in the

‘record of conviction.’” Ferreira v. Ashcroft, 390 F.3d 1091, 1095

(9th Cir. 2004). The record of conviction includes the state

charging document. Id.

Finally, the Seventh Circuit has noted that “a well

established exception allows judges to look beyond the indictment

or information when it [i]s otherwise impossible to determine the

proper classification of the offense . . . and . . . the deviation

d[oes] not require a hearing to resolve contested factual issues.”

Xiong v. I.N.S., 173 F.3d 601, 605-06 (7th Cir. 1999)(allowing

judge to look at the criminal complaint not for the illegitimate

purpose of determining what petitioner could or should have been

convicted of, but rather for the legitimate purpose of determining

what he had been convicted of).

The Court’s reasoning in Kirksey applies in this case. Like

two of the charging documents involved in Kirksey’s prior

convictions, the charging document in Daly’s prior conviction

states: “Upon the facts contained in the application of

17
[complaining witness], it is formally charged . . . .” J.A. 6.

The complaining witness was the police officer who responded to a

call from Daly’s children’s school about physical child abuse.

A.R. 821. He filled out the Application for Statement of Charges

and signed it under penalties of perjury that the contents of the

Application were true to the best of his knowledge, information and

belief. Id. Based on Kirksey, the facts contained in the

Application for Statement of Charges/Statement of Probable Cause

were incorporated into the charging document, and could be

consulted to determine whether the conduct constituted a crime of

violence.

The Application reveals that Daly physically struck his four-

year-old daughter with a belt and buckle resulting in serious

facial injury and physically beat his two-year-old daughter so

severely that the beating resulted in bruising and marks on her

buttocks and thighs. A.R. 821-23; J.A. 240. A “crime of violence”

is defined to include “an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another.” 18 U.S.C. § 16. The facts

contained in the Application clearly show that Daly’s underlying

conviction was for a crime of violence. We find that the Board did

not err in referencing the Application for Statement of

Charges/Statement of Probable Cause, and Daly is removable by

reason of having committed a crime of violence.

18
 V.

For the reasons set forth above, we affirm the ruling of the

Board of Immigration Appeals.

AFFIRMED

19
DUNCAN, Circuit Judge, dissenting:

This court has previously held that an application for

citizenship suffices to make a permanent resident alien a national

of the United States pursuant to 8 U.S.C. § 1101(a)(22). United

States v. Morin, 80 F.3d 124, 126-27 (4th Cir. 1996). The

majority, in holding that Mr. Daly’s application for citizenship

does not make him a national of the United States pursuant to

Section 1101(a)(2), claims that Morin occurred in a different

context and proceeds to reinterpret the statute. See Maj. Op. n.3.

I do not agree that the existence of “different contexts” gives us

license to interpret the exact language in the same statute

differently in different cases.

As the Supreme Court has noted:

It would be an extraordinary principle of construction
that would authorize or permit a court to give the same
statute wholly different meanings in different cases, and
it would require a stronger showing of congressional
intent than has been made in this case to justify the
assumption of such unconfined power.

United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11,

34 (1969); see also Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972

(9th Cir. 2003) (refusing to distinguish Morin from the immigration

context simply because it was a criminal case); Department of

Energy v. Westland, 565 F.2d 685, 690 n.6 (C.C.P.A. 1977); Kehaya

v. United States, 355 F.2d 639, 641 (Ct. Cl. 1966).

While I agree with the majority that Perdomo-Padilla presents

the better reading of Section 1101(a)(2), I am compelled to follow

20
Morin until it is overruled by statutory amendment, the Supreme

Court, or the Fourth Circuit sitting en banc. See McMellon v.

United States, 387 F.3d 329, 332-33 (4th Cir. 2004) (en banc).

Under Morin, Mr. Daly is a United States national not subject to

deportation. Accordingly, I would reverse the final order of

removal. I respectfully dissent.

21