Case: 08-60786 Document: 00511169031 Page: 1 Date Filed: 07/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2010
No. 08-60786 Lyle W. Cayce
Clerk
ROSELLER OSICOS NOLOS,
Petitioner
v.
ERIC H. HOLDER, JR., U S ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.*
PER CURIAM:
Roseller Osicos Nolos (“Nolos”) petitions for review of the Board of
Immigration Appeal’s (“BIA”) decision to uphold the immigration judge’s (“IJ”)
order of removal and the BIA’s subsequent denial of his separate motions to
reconsider and to reopen. Nolos argues that he is not removable because (1) he
derives United States citizenship from his parents, who he claims acquired
United States citizenship by virtue of their births in the Philippine Islands
(“Philippines”) while the country was a United States territory, and (2) the
Nevada theft conviction that forms the basis of the removal order does not
*
District Judge, Southern District of Mississippi, sitting by designation.
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qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). For the
following reasons, we DENY the petition for review.
I.
Nolos was admitted to the United States in 1983 as a lawful permanent
resident. In 2003, he pleaded guilty to a theft offense pursuant to Nevada
Revised Statutes § 205.0832 (2003) in Nevada state court and received a
suspended prison sentence of between 18 and 48 months. In July 2006, the
Department of Homeland Security (“DHS”)1 issued an order to show cause and
notice of hearing, charging that Nolos’s conviction constituted an aggravated
felony pursuant to 8 U.S.C. § 1101(a)(43)(G) and rendered him removable under
8 U.S.C. § 1227(a)(2)(A)(iii).
Nolos, proceeding pro se, admitted the DHS’s allegations and conceded his
removability. In August 2006, the IJ determined that Nolos was removable
because his Nevada conviction constituted an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(G) and ordered him removed to the Philippines. Nolos timely
appealed the IJ’s order to the BIA. After an initial dismissal and a subsequent
grant of Nolos’s motion to reopen in light of newly discovered evidence, the BIA
determined that not all of the subsections of Nevada Revised Statutes § 205.0832
constituted aggravated felonies and that the judgment of conviction – the record
of conviction the Government submitted to prove Nolos was convicted of a theft
offense – did not specify which provision of Nevada Revised Statutes § 205.0832
Nolos was convicted of violating. As a result, it vacated its initial dismissal of
Nolos’s appeal and remanded the case to the IJ.
On remand, the DHS submitted the Nevada information charging Nolos
with theft under Nevada Revised Statutes § 205.0832. After a review of this
1
The notice was issued by the Immigration and Naturalization Services, whose services
and responsibilities have since between transferred to the DHS. See Zaidi v. Ashcroft, 374
F.3d 357, 358 n.1 (5th Cir. 2004).
2
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additional material, the IJ determined that Nolos was convicted under §
205.0832(1)(b); § 205.0832(1)(b) met the requirements of theft under the
Immigration and Nationality Act (“INA”); and Nolos was removable as an
aggravated felon. The BIA agreed with the IJ’s determination and dismissed
Nolos’s appeal.
Nolos filed a timely petition for review and also filed with the BIA a timely
motion for reconsideration and a motion to reopen, asserting in part that he was
a citizen of the United States. After the BIA’s denial of those motions, Nolos
filed an additional timely petition for review of this BIA decision.
II.
Although our review of a final order of removal is limited under 8 U.S.C.
§ 1252, Marquez-Marquez v. Gonzales, 455 F.3d 548, 553-54 (5th Cir. 2006), we
have jurisdiction to consider the purely legal questions of whether Nolos is a
United States citizen and whether he was convicted of an aggravated felony, see
Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir. 2006); Alwan v. Ashcroft,
388 F.3d 507, 510 (5th Cir. 2004). We also have jurisdiction to review the BIA’s
denial of Nolos’s motions to reopen and reconsider under 8 C.F.R. § 1003.2(b)
and (c). See Kucana v. Holder, 130 S. Ct. 827, 838-40 (2010).
While we owe deference to the BIA’s interpretation of the INA under the
principles of Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), our review of the
legal questions posed here is de novo. See Patel v. Mukasey, 526 F.3d 800, 802
(5th Cir. 2008); Larin-Ulloa, 462 F.3d at 460-61; Omari v. Gonzales, 419 F.3d
303, 306 (5th Cir. 2005); Alwan, 388 F.3d at 510.
III.
The Government argues initially that Nolos’s petition should be dismissed
in part on the procedural ground that he failed to comply with 8 C.F.R. § 1003.2
because he did not present an application for relief and did not raise citizenship
as a defense before the IJ. The BIA’s decision, however, did not deny Nolos’s
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motion on the ground of noncompliance with 8 C.F.R. § 1003.2. Although the
BIA noted that Nolos “could and should have raised this claim during
proceedings before the [IJ]” and “failed to support his claim with any evidence
or to attach an application for the relief requested,” it went on to consider and
reject Nolos’s claim that he was a United States citizen. Against this
background, we decline the Government’s invitation to dismiss in part Nolos’s
petition on the basis of noncompliance with 8 C.F.R. § 1003.2. Accord Lopez-
Dubon v. Holder, ___ F.3d ____, 2010 WL 2384010 (5th Cir. 2010).
IV.
There are two sources of citizenship: birth and naturalization.
Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir. 2006). Nolos
asserts that he derives United States citizenship from his parents, who he claims
became United States citizens at birth because they were born in the Philippines
when the country was a United States territory. We have not previously decided
this question. However, the Second, Third and Ninth Circuits have held that
birth in the Philippines at a time when the country was a territory of the United
States does not constitute birth “in the United States” under the Citizenship
Clause, and thus did not give rise to United States citizenship. Lacap v. INS, 138
F.3d 518, 518-19 (3d Cir. 1998); Valmonte v. INS, 136 F.3d 914, 915-21 (2d Cir.
1998); Rabang v. INS, 35 F.3d 1449, 1450-54 (9th Cir. 1994).2 The courts of
appeals explained that the term “United States” as it is used in the Citizenship
Clause of the Fourteenth Amendment did not, without more, include “United
2
The Supreme Court also observed, although without deciding the issue, that persons
born in the Philippines at the time the Philippines were a territory of the United States were
not United States citizens. See Rabang v. Boyd, 353 U.S. 427, 430-31 (1957) (“The inhabitants
of the Islands acquired by the United States during the late war with Spain, not being citizens
of the United States, do not possess right of free entry into the United States.” (citation and
quotation marks omitted)); Barber v. Gonzales, 347 U.S. 637, 639 n.1 (1954) (stating that
although the inhabitants of the Philippines during the territorial period were “nationals” of
the United States, they were not “United States citizens”).
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States territories simply because the territories [were] ‘subject to the
jurisdiction’ or ‘within the dominion’ of the United States.” Id. at 1453 & n.8; see
also Valmonte, 136 F.3d at 920. In reaching their holdings, the courts found
guidance from the Supreme Court’s Insular Cases jurisprudence on the
territorial scope of the term “the United States” as used in the Citizenship
Clause of the Fourteenth Amendment. Valmonte, 136 F.3d at 918-19; Rabang,
35 F.3d at 1452. The Insular Cases were a series of Supreme Court decisions
that dealt with various challenges to duties on shipments from Puerto Rico to
the United States mainland. Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at
918.
In Downes v. Bidwell, 182 U.S. 244 (1901), one of the Insular Cases, “[t]he
Court held that Puerto Rico was ‘not a part of the United States within the
revenue clauses of the Constitution.’” Id. at 287. The Court reached this
conclusion by considering the territorial scope of the term “the United States” in
various clauses of the Constitution. Valmonte, 136 F.3d at 918; Rabang, 35 F.3d
at 1452-53 (citing Downes, 182 U.S. at 251). The Court compared the revenue
clause language “all duties . . . shall be uniform throughout the United States,”
United States Constitution, art. I, § 8, with the Thirteenth Amendment’s
prohibition of slavery and involuntary servitude “within the United States, or
any place subject to their jurisdiction, ” id. amend. XIII, § 1 (emphasis added),
and that of the Citizenship Clause of the Fourteenth Amendment providing that
persons “born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside,”
id. amend. XIV, § 1 (emphasis added). See Downes, 182 U.S. at 251 (cited in
Rabang, 35 F.3d 1452; Valmonte, 136 F.3d at 918). The Court then concluded
that the disjunctive “or” in the Thirteenth Amendment showed that “there may
be places within the jurisdiction of the United States that are no part of the
Union” to which the Thirteenth Amendment would still apply, while citizenship
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under the Fourteenth Amendment “is not extended to persons born in any place
‘subject to [the United States’] jurisdiction’” (but instead limited to those born or
naturalized in the states of the Union). Id. See Rabang, 35 F.3d at 1452-53
(discussing Downes, 182 U.S. at 251); Valmonte, 136 F.3d at 919 (discussing
Downes, 182 U.S. at 251).
Relying on Downes, the Rabang and Valmonte courts observed that “[l]ike
the revenue clauses, the Citizenship Clause has an express territorial limitation
which prevents its extension to every place over which the government exercises
its sovereignty.” Rabang, 35 F.3d at 1453 (citing United States v.
Verdugo-Urquidez, 494 U.S. 259, 291 n.11 (1990) (Brennan, J., dissenting)); see
also Valmonte, 136 F.3d at 918-19. The courts of appeals further noted the
Court’s subsequent statement that “‘in dealing with foreign sovereignties, the
term ‘United States’ has a broader meaning than when used in the Constitution,
and includes all territories subject to the jurisdiction of the Federal government,
wherever located.’” Rabang, 35 F.3d at 1453 (quoting Downes, 182 U.S. at 263);
Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263). They observed that
“[i]n other words, as used in the Constitution, the term ‘United States’ does not
include all territories subject to the jurisdiction of the United States
government.” Rabang, 35 F.3d at 1453 (citing as see also Examining Bd. of
Eng’rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 588 n.19
(1976)); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263).3
3
The Valmonte court found further support in Hooven & Allison Co. v. Evatt, 324 U.S.
652 (1945), in which the Court held that the Philippines were “not a part of the United States
in the sense that they are subject to and enjoy the benefits or protection of the Constitution,
as do the states which are united by and under it.” Id. at 678 (cited in Valmonte, 136 F.3d at
919). The Second Circuit also referenced Barber, 347 U.S. 637, and Rabang, 353 U.S. 427, in
which the Court “observed, without deciding, that persons born in the Philippines prior to its
independence in 1946 [were] not citizens of the United States.” Valmonte, 136 F.3d at 919
(citing Barber, 347 U.S. at 639 n.1; Rabang 353 U.S. at 432 n.12).
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Against this background, the Rabang, Lacap and Valmonte courts held
that “[i]t is . . . incorrect to extend citizenship to persons living in United States
territories simply because the territories are ‘subject to the jurisdiction’ or
‘within the dominion’ of the United States, because those persons are not born
‘in the United States’ within the meaning of the Fourteenth Amendment.”
Valmonte, 136 F.3d at 920 (citing Rabang, 35 F.3d at 1453); Rabang, 35 F.3d at
1453; Lacap, 138 F.3d at 519 (citing Rabang, 35 F.3d at 1454; Valmonte, 136
F.3d 914).4
Notwithstanding the Supreme Court authority starting with the Insular
Cases and the persuasive precedent from three of our sister circuits, Nolos
counters that Downes, as one of the central cases of Rabang, Valmonte and
Lacap, should not be followed because it never defined the phrase “the United
States” in the context of the Fourteenth Amendment. Relying on United States
v. Wong Kim Ark, 169 U.S. 649 (1898), he argues that the Fourteenth
Amendment codified the principles of the English common law that birth within
a sovereign’s territory confers citizenship. On that basis, Nolos urges that his
parents acquired United States citizenship at birth because the Philippines were
under the dominion and control of the United States at the time of their births.
But as have the Ninth and the Second Circuits before us, see Rabang, 35 F.3d
at 1454; Valmonte, 136 F.3d at 920, we decline to give Wong Kim Ark such an
expansive interpretation. As the Second Circuit explained, the question of the
territorial scope of the Citizenship Clause of the Fourteenth Amendment was not
before the Court in Wong Kim Ark:
4
Most recently, the District Court for the District of Columbia, relying on the
reasoning in Rabang, Valmonte and Lacap, held that a Filipino Navy shipyard worker who
was born in the Philippines when it was a United States territory was not a United States
citizen under the Citizenship Clause. See Licudine v. Winter, 603 F. Supp. 2d 129, 134-35
(D.D.C. 2009).
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The issue in Wong Kim Ark was whether a child born to alien
parents in the United States was a citizen under the Fourteenth
Amendment. That the child was born in San Francisco was undisputed and “it
[was therefore] unnecessary to define ‘territory’ rigorously or decide whether
‘territory’ in its broader sense (i.e. outlying land subject to the jurisdiction of this
country) meant ‘in the United States’ under the Citizenship Clause.”
Valmonte, 136 F.3d at 920 (brackets in original) (quoting Rabang, 35 F.3d at
1454).
Against this background, we find the reasoning of our sister circuits
persuasive and hold that “persons born in the Philippines during its status as
a United States territory were not ‘born . . . in the United States’ under the
Fourteenth Amendment.” Valmonte, 136 F.3d at 920 (quoting Rabang, 35 F.3d
at 1453). Accordingly, given that Nolos’s parents did not acquire United States
citizenship by virtue of their birth in the Philippines when it was a United
States territory, Nolos could not have derived United States citizenship from
them and is therefore removable if he is found to have been convicted of an
aggravated felony.
V.
Nolos argues next that even if he were not a United States citizen he is not
removable because his conviction under Nevada Revised Statutes § 205.0832
does not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Nolos
and the Government agree that Nevada Revised Statutes § 205.0832 is divisible
and describes crimes, of which only some qualify as aggravated felonies. But the
Government argues that Nolos was convicted under a subsection of the statute
that qualifies as an aggravated felony.
“Federal immigration law provides that any ‘alien who is convicted of an
aggravated felony at any time after admission is deportable.’” Nijhawan v.
Holder, 129 S. Ct. 2294, 2297 (2009) (emphasis in original) (quoting 8 U.S.C. §
1227(a)(2)(A)(iii)). Section 1101(a)(43)(G) defines an aggravated felony offense
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as including a theft offense for which the term of imprisonment is at least one
year. To determine if an offense constitutes theft, we compare it to our generic
definition of a theft offense, which is “a taking of property or an exercise of
control over property without consent with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such deprivation is less than
total or permanent.” Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007)
(citations omitted) (collecting cases). To determine whether an offense qualifies
as an aggravated felony, we employ a categorical approach by “look[ing] at the
statute under which the alien was convicted rather than at the particular
underlying facts.” Omari, 419 F.3d at 307. However, as in the instant matter,
“[i]f the statute of conviction defines multiple offenses, at least one of which does
not describe an aggravated felony,” we apply a modified categorical approach.
Larin-Ulloa, 462 F.3d at 464 (citing Shepard v. United States, 544 U.S. 13,
20-21, 26 (2005)). The modified categorical approach allows for examination of
the record of conviction to determine under which subsection of a divisible
statute the individual was convicted. Omari, 419 F.3d at 308. For guilty plea
convictions, this “may include consideration of the ‘charging document, written
plea agreement, transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.’” Id. (quoting Shepard, 544 U.S.
at 16).
To prove that Nolos was convicted of an aggravated felony theft offense,
the Government submitted a copy of the Nevada information and judgment of
conviction. After a review of the documents, the BIA determined that Nolos was
convicted under Nevada Revised Statutes § 205.0832(1)(b) and that the provision
qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). The single-
count information confirms this conclusion. It provides several examples of
Nolos creating phony merchandise refunds that he would pay to his own credit
card while he was employed as a salesperson at a Nordstrom’s store and states
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that Nolos “did then and there knowingly, feloniously, and without lawful
authority, commit theft by using services or property of another person
entrusted to him or placed in his possession for a limited use, having a value of
$250.00, or more, lawful money of the United States, belonging to Nordstrom’s,”
thus tracking Nevada Revised Statutes § 205.0832(1)(b). Nevada Revised
Statutes § 205.0832(1)(b) in turn meets our generic definition of theft. See
Burke, 509 F.3d at 697 (“‘[T]heft offense (including receipt of stolen property)’ is
a taking of property or an exercise of control over property without consent with
the criminal intent to deprive the owner of rights and benefits of ownership,
even if such deprivation is less than total or permanent.” (citations omitted)).
This finding is also supported by the plea agreement which Nolos submitted into
the record. Nolos appears to suggest that the guilty plea agreement fails to
indicate the prong of the statute to which he had pleaded guilty. But it states
that Nolos pleaded guilty to theft under Nevada Revised Statutes § 205.0832,
“as more fully alleged in the charging document.” Therefore, it incorporates by
reference the more specific description of Nolos’s offense in the information
which tracks the language of Nevada Revised Statutes § 205.0832(1)(b).
In sum, given that Nolos’s term of imprisonment was over one year, the
record of conviction establishes that Nolos was convicted of a theft offense
pursuant to 8 U.S.C. § 1101(a)(43)(G) and is removable as an aggravated felon
under 8 U.S.C. § 1227(a)(2)(A)(iii).
VI.
For the foregoing reasons, we DENY Nolos’s petition for review.
10