Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-21-2006
Obianyo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4561
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"Obianyo v. Atty Gen USA" (2006). 2006 Decisions. Paper 1406.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4561
________________
UCHENNA OBIANYO,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
_______________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A72 827 816)
Immigration Judge: Honorable Walter A. Durling
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 21, 2006
Before: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: March 21, 2006)
_______________________
OPINION
_______________________
PER CURIAM
An Immigration Judge ordered Uchenna Obianyo removed from the United States
but granted his application for relief from removal under the Convention Against Torture
(CAT). The Board of Immigration Appeals (BIA) dismissed the government’s appeal
from the order granting CAT relief, and subsequently denied its motion to reconsider.
Obianyo now asserts that he is a national of the United States and cannot be removed.
For the following reasons, we will deny the petition for review.
Obianyo, a native of Nigeria, arrived in the United States in 1989 and became a
lawful permanent resident in 1994. Obianyo was convicted of stalking in Tennessee in
1997, and again in Pennsylvania in 2000. Based on these convictions, an Immigration
Judge (IJ) ordered Obianyo removed from the United States for having been convicted of
two or more crimes involving moral turpitude. Obianyo was permitted to apply for
asylum and cancellation of removal, as well as other relief from removal under the CAT.
The IJ denied asylum and cancellation of removal, but granted withholding and deferral
of removal to Nigeria. The BIA dismissed the government’s appeal in September 2004
and denied the government’s motion to reconsider in December 2004.
In the meantime, Obianyo filed a habeas corpus petition in the District Court,
asserting that he cannot be removed because he is a national of the United States. He also
challenged his detention in light of the IJ’s decision granting CAT relief. After Obianyo
was released from detention in January 2005, he conceded to the District Court that his
challenge to detention was moot, but maintained that his order of removal was unlawful
based on his status as a national of the United States. The District Court dismissed
Obianyo’s challenge to detention as moot in light of his release, and transferred his
2
petition asserting nationality to this Court to be treated as a petition for review under the
REAL ID Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).
We will deny Obianyo’s petition for review. His sole argument is that he is a
national of the United States because he applied for naturalization in 1998. Because
Obianyo never presented his nationality claim to the BIA, the claim is deemed
unexhausted. See Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005). Absent
exhaustion of available administrative remedies, we are without jurisdiction to consider
the claim. See 8 U.S.C. § 1252(d)(1); Popal, 416 F.3d at 252-53.1
Even if we were to exercise jurisdiction over Obianyo’s unexhausted nationality
claim, we would reject it. A national is either 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). For a citizen of another country, “nothing less than
citizenship will show ‘permanent allegiance to the United States.’” Salim v. Ashcroft,
350 F.3d 307, 310 (3d Cir. 2003). Although Obianyo applied for naturalization, his
application was eventually denied, as he concedes. Accordingly, Obianyo is not a
naturalized citizen and thus not a national of the United States. We will deny his petition
for review.
1
We are aware that at least one Court of Appeals has recognized an exception to the
exhaustion requirement for a nationality claim. See Theagene v. Gonzales, 411 F.3d
1107, 1111 (9th Cir. 2005). While we do not question the extreme importance of a
nationality claim, we decline to follow the Ninth Circuit’s lead at this time.
3