United States Court of Appeals
For the First Circuit
No. 16-2174
FRANK EDNEY MONTEIRO MIRANDA,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Souter,** Associate Justice,
and Baldock,*** Circuit Judge.
William P. Joyce, with whom Joyce & Associates P.C. was on
brief, for petitioner.
Jesse M. Bless, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Civil Division, and Anthony C. Payne, Assistant
* Pursuant to Fed. R. App. P. 43(c)(2), Jefferson B.
Sessions, III, Attorney General of the United States, has been
substituted for Loretta E. Lynch, former Attorney General.
** Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
*** Hon. Bobby R. Baldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.
Director, Office of Immigration Litigation, were on brief, for
respondent.
April 5, 2017
LYNCH, Circuit Judge. Frank Edney Monteiro Miranda, who
was once deemed to be a U.S. citizen by an immigration judge ("IJ")
in 2007 and escaped the possibility of removal, now petitions for
that determination to be considered binding in 2016 removal
proceedings before a second IJ, who ordered Miranda removed based
on his conviction for a drug felony. The Board of Immigration
Appeals ("BIA") dismissed Miranda's appeal, and he petitions for
review. Miranda argues that the doctrine of res judicata should
have barred the second IJ and the BIA from readjudicating the issue
of his citizenship, finding that he is not a U.S. citizen, and
ordering him removed. He asks that we vacate his removal order.
This is a novel issue for this circuit. We hold that
the applicability of res judicata becomes immaterial before this
court because of the jurisdictional limitations imposed by the
Immigration and Nationality Act ("INA"), Pub. L. No. 89-236, 79
Stat. 911 (codified as amended in scattered sections of 8 U.S.C.).
Under the INA, this court must undertake a plenary review of the
question of Miranda's citizenship in order to determine whether we
have jurisdiction to hear his petition for review. See 8 U.S.C.
§§ 1252(a)(2)(C) (barring jurisdiction "to review any final order
of removal against an alien who is removable" for the commission
of certain criminal offenses), 1252(b)(5)(A) (requiring
determination of petitioner's nationality claim when there is no
dispute of fact). We conclude that Miranda has failed to meet his
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burden of proving that he is a U.S. citizen. Accordingly, the
jurisdictional bar in § 1252(a)(2)(C) applies and precludes
judicial review of the final order of removal against him. We
dismiss his petition. In doing so, we agree with the Tenth
Circuit's decision in Shepherd v. Holder, 678 F.3d 1171 (10th Cir.
2012).
I.
The facts of this case are undisputed. Miranda was born
out of wedlock in Angola on June 5, 1978 to a mother and father,
both of Cape Verde citizenship. On August 31, 1978, Miranda's
mother and father appeared as "informing parents" at the Embassy
of Cape Verde in Angola and signed Miranda's "record of birth"
before two witnesses. Miranda has two sisters, and both were also
born in Angola.
On December 9, 1988, Miranda, his mother, and his two
sisters were admitted to the United States as lawful permanent
residents. Shortly thereafter, his father also relocated to the
United States. On December 31, 1988, Miranda's mother and father
were married in Massachusetts.
Miranda's mother became a naturalized U.S. citizen on
January 6, 1995. At that time, Miranda was sixteen years old.
Miranda and his two sisters filed N-600 applications for
certificates of citizenship. Miranda's sisters attended their N-
600 interviews and received their certificates of citizenship,
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based on U.S. citizenship derived through their mother's
naturalization. Miranda was unable to attend his N-600 interview,
scheduled for May 30, 1996, because he was in the custody of the
Massachusetts Department of Youth Services at the time. As a
result, Miranda never received a certificate of citizenship.
On May 10, 2007, the Department of Homeland Security
("DHS") initiated removal proceedings against Miranda after he
pled guilty to failing to register as a sex offender, in violation
of Massachusetts law. Miranda moved to terminate the proceedings
on the ground that he was a U.S. citizen because he had allegedly
derived citizenship through his mother when she was naturalized in
1995. The IJ, Charles Adkins-Blanch, continued the proceedings in
order to allow Miranda to pursue an N-600 application for a
certificate of citizenship, but the United States Citizenship and
Immigration Services ("USCIS") denied Miranda's application. The
USCIS did so after examining, inter alia, Miranda's original birth
record (which included his father's signature) and concluding that
Miranda's paternity had been legitimated. Under applicable law in
1995, Miranda could have derived citizenship through his mother's
naturalization only if his "paternity . . . ha[d] not been
established by legitimation." 8 U.S.C. § 1432(a)(3) (1996).
Notwithstanding the USCIS's denial, IJ Adkins-Blanch
convened a hearing to determine whether Miranda was a U.S. citizen.
At the hearing, Miranda's mother testified that Miranda's father
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was not involved in her children's lives and that she continued to
be their sole economic provider even after she married their father
in 1988. Miranda also submitted as evidence letters from public
schools about his mother's responsibility for his education, a
letter that his counsel had sent to his mother, and his sisters'
certificates of citizenship. At the conclusion of the hearing, IJ
Adkins-Blanch issued an oral decision granting Miranda's motion to
terminate removal proceedings on the ground that he was a U.S.
citizen. IJ Adkins-Blanch found that Miranda "ha[d] presented
credible evidence that he derived citizenship through his mother
as a child born out of wedlock whose paternity ha[d] not been
established by legitimation." DHS never appealed this decision.
On February 12, 2012, Miranda was convicted for
distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1).
After Miranda's release from prison, DHS initiated new removal
proceedings against him. The Notice to Appear dated September 15,
2015 charged Miranda as removable under 8 U.S.C.
§§ 1227(a)(2)(A)(ii), (A)(iii), and (B)(i). See 8 U.S.C.
§§ 1227(a)(2)(A)(ii) (removability for multiple criminal
convictions), 1227(a)(2)(A)(iii) (removability for aggravated
felony), 1227(a)(2)(B)(i) (removability for crime relating to
controlled substance). Miranda once again filed a motion to
terminate removal proceedings, citing IJ Adkins-Blanch's
determination that he was a U.S. citizen and arguing that res
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judicata barred the second IJ, Steven Day, from readjudicating
Miranda's citizenship.
IJ Day denied Miranda's motion, refusing to apply res
judicata in the context of an administrative proceeding where doing
so would "frustrate[] Congressional intent." While IJ Day
acknowledged that most circuits that have considered the
applicability of res judicata in removal proceedings have held
that the doctrine does apply, he also noted that the doctrine is
more "flexible" in administrative proceedings than in judicial
proceedings. "[V]arious courts have affirmed BIA decisions that
decline to apply the doctrine when doing so would frustrate
Congress's interest in removing aliens convicted of certain
crimes," IJ Day observed. IJ Day then concluded that Miranda was
not a U.S. citizen because he had been legitimated by his father
under both Angolan and Massachusetts law and thus could not have
derived citizenship through his mother's 1995 naturalization.
Miranda was ordered removed from the United States to Cape Verde
or, in the alternative, to Angola.
The BIA dismissed Miranda's appeal, agreeing with IJ
Day's conclusion that res judicata was inapplicable and that
Miranda's paternity had been established through legitimation
under the laws of Angola and Massachusetts.
Miranda now petitions for review of the final order of
removal against him. He advances two related arguments in his
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petition. First, he argues that he is a citizen of the United
States and thus not subject to removal. Second, he argues that IJ
Day and the BIA erred by not applying res judicata to IJ Adkins-
Blanch's 2007 determination that Miranda was a U.S. citizen.
II.
A. Statutory Jurisdictional Framework
We first determine whether we have jurisdiction to hear
Miranda's petition. Section 1252(a)(2)(C) provides:
Notwithstanding any other provision of law . . . and
except as provided in subparagraph (D), 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 . . .
1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or
any offense covered by section 1227(a)(2)(A)(ii) of this
title . . . .
8 U.S.C. § 1252(a)(2)(C) (emphasis added).1 Because Miranda was
charged as removable under §§ 1227(a)(2)(A)(ii), (A)(iii), and
(B)(i), this jurisdictional bar would ordinarily apply to preclude
our review of his petition.
Here, however, Miranda argues that he is a U.S. citizen
and thus not an "alien who is removable" under § 1252(a)(2)(C).2
1 Section 1252(a)(2)(D) provides an exception to this
jurisdictional bar by stating that nothing in § 1252(a)(2)(C)
"shall be construed as precluding review of constitutional claims
or questions of law raised upon a petition for review." Id.
§ 1252(a)(2)(D).
2 Section 1101(a)(3) defines "alien" as "any person not a
citizen or national of the United States." Id. § 1101(a)(3). Only
aliens are removable. See id. § 1227(a).
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Accordingly, in order to determine whether the jurisdictional bar
applies, we must adjudicate Miranda's claim of citizenship.
Indeed, the INA requires us to do so under § 1252(b)(5)(A), which
provides: "If the petitioner claims to be a national of the United
States and the court of appeals finds . . . that no genuine issue
of material fact about the petitioner's nationality is presented,
the court shall decide the nationality claim." Id.
§ 1252(b)(5)(A). Further, "[b]ecause nationality includes
citizenship, the statutory reference to nationality claims [in
§ 1252(b)(5)(A)] is understood to include citizenship claims."
Shepherd, 678 F.3d at 1179 n.6 (citations omitted).
As the material facts in this case are undisputed, we
undertake a plenary review of Miranda's claim of U.S. citizenship
in order to determine whether § 1252(a)(2)(C)'s jurisdictional bar
applies.
B. Miranda's Claim of U.S. Citizenship
"In deportation proceedings, evidence of foreign birth
gives rise to a rebuttable presumption of alienage, and the burden
shifts to the [petitioner] to prove citizenship." In re Rodriguez-
Tejedor, 23 I. & N. Dec. 153, 164 (BIA 2001); see also Leal Santos
v. Mukasey, 516 F.3d 1, 4 (1st Cir. 2008). We conclude that
Miranda has failed to meet this burden.
Miranda argues that he automatically derived citizenship
through his mother's 1995 naturalization under the former 8 U.S.C.
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§ 1432(a). That section, entitled "Children born outside United
States of alien parents; conditions for automatic citizenship,"
provided, in relevant part:
A child born outside of the United States of alien
parents . . . becomes a citizen of the United States
upon fulfillment of the following conditions:
. . . .
(3) . . . [T]he naturalization of the mother if the child
was born out of wedlock and the paternity of the child
has not been established by legitimation; and if
(4) Such naturalization takes place while such child is
unmarried and under the age of eighteen years; and
(5) Such child is residing in the United States pursuant
to a lawful admission for permanent residence at the
time of the naturalization of the [mother] . . . .
8 U.S.C. § 1432(a)(3)–(5) (1996). Because Miranda was unmarried,
sixteen years old, and residing in the United States as a lawful
permanent resident at the time of his mother's naturalization in
1995, his claim of U.S. citizenship turns on whether his paternity
had been established by legitimation.
Although the INA does not expressly define
"legitimation" as it is used in the former § 1432(a)(3), the BIA
has defined the term "as 'the act of putting a child born out of
wedlock in the same legal position as a child born in wedlock.'"
Iracheta v. Holder, 730 F.3d 419, 425 (5th Cir. 2013) (quoting In
re Cabrera, 21 I. & N. Dec. 589, 591 (BIA 1996)). The agency
recently held that a child's legitimation, under 8 U.S.C.
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§ 1101(c)(1), can be established "if he or she was born in a
country or State that has eliminated all legal distinctions between
children based on the marital status of their parents or has a
residence or domicile in such a country or State . . . ,
irrespective of whether the country or State has prescribed other
legal means of legitimation." Matter of Cross, 26 I. & N. Dec.
485, 485–86 (BIA 2015). Nevertheless, as to establishing
legitimation specifically for purposes of the former § 1432(a)(3),
the BIA noted: "[W]here a jurisdiction requires an affirmative act
to legitimate an out-of-wedlock child, paternity is not
established without the requisite act, even if the jurisdiction
has enacted a law to place children on equal footing without regard
to the circumstances of their birth." Id. at 490.
The parties dispute which country's law should be used
to determine whether Miranda's paternity was established by
legitimation. Miranda argues that the laws of only Angola and
Massachusetts are applicable, while the government argues that we
may look to the law of Cape Verde in addition to those of Angola
and Massachusetts. We need not linger on this issue because under
the laws of all three jurisdictions, Miranda's paternity was
established by legitimation. He thus could not have derived U.S.
citizenship through his mother's naturalization under the former
§ 1432(a)(3).
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First, Cape Verde legally abolished the distinction
between legitimate and illegitimate children in 1976. See Matter
of Cardoso, 19 I. & N. Dec. 5, 7 (BIA 1983). Article 2 of Cape
Verde's Decree-Law No. 84/76 declared that "[i]n the eyes of the
law, all children are considered equal, enjoy the same rights and
are subject to the same duties and obligations vis-a-vis their
parents regardless of the latter['s] civil status." Decree-Law
No. 84/76 of Sept. 25, 1976, Ch. I, Art. 2, reprinted in Cardoso,
19 I. & N. Dec. at 8 app. A. Accordingly, "every child born [after
this law's enactment in 1976] in Cape Verde -- whether in or out
of wedlock -- is legitimated. Moreover, every such child is
legitimated regardless of whether the natural father takes formal
steps to assert paternity." Brandao v. Att. Gen. of U.S., 654
F.3d 427, 430 (3d Cir. 2011).
But even if Cape Verde law required a separate act of
acknowledgement to establish paternity, the signature of Miranda's
father on his birth record would be sufficient. Under Article 5
of Decree-Law No. 84/76, paternity could be "established through
an express declaration to such effect by the father." Decree-Law
No. 84/76 of Sept. 25, 1976, Ch. II, Art. 5, reprinted in Cardoso,
19 I. & N. Dec. at 8 app. A. Miranda's father made such an express
declaration when he -- together with Miranda's mother -- appeared
as an "informing parent[]" at the Embassy of Cape Verde in Angola
and signed Miranda's birth record before two witnesses.
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Second, Angola also abolished all legal distinctions
between legitimate and illegitimate children in 1977, the year
before Miranda's birth. See Maria do Carmo Medina, Affiliation in
the New Angolan Family Code, 1994 Int'l Surv. Fam. L. 29, 30
(recognizing that "Law Nr. 10/77 of April 15[, 1977] removed all
discrimination between legitimate and illegitimate children").
Even if Angolan law required a separate act to establish
paternity, the signature of Miranda's father on his birth record
sufficed. As the government notes, citing a 2016 Library of
Congress report prepared for the U.S. Department of Justice,
"Angola's Civil Registry Code allowed for the acceptance [of]
Miranda's birth registration from the registry in Cape Verde."
While Miranda criticizes the "presumption" that his father's
signature on his birth record was sufficient to establish paternal
legitimation, he has failed to cite a single source for the
proposition that a birth record bearing a father's signature would
be insufficient. He thus fails to meet his burden of showing that
his paternity was not established by legitimation under the law of
Angola.
Finally, even under Massachusetts law, Miranda's
paternity was established by legitimation such that he was
ineligible to derive citizenship through his mother's
naturalization under the former § 1423(a)(3). In 1986,
Massachusetts passed General Law Chapter 209C, which -- in 1995,
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the year that Miranda's mother was naturalized -- read: "Children
born to parents who are not married to each other shall be entitled
to the same rights and protections of the law as all other
children." Mass. Gen. Laws ch. 209C, § 1 (1995). In terms of
acknowledgement of parentage, the relevant law in 1995 provided:
"A voluntary acknowledgement of parentage taken outside of the
commonwealth shall be valid for the purposes of this section if it
was taken in accordance with the laws of the state or the country
where it was executed." Id. § 11(d). For purposes of intestate
succession, Massachusetts law as of 1995 recognized that a father's
sworn affidavit "[wa]s sufficient to demonstrate the requisite
unambiguous acknowledgement of a child." Cosgrove v. Hughes, 941
N.E.2d 706, 712 (Mass. App. Ct. 2011).
Under this legal regime, the fact that Miranda's father
signed Miranda's birth record before two witnesses again suffices
to establish paternity through legitimation. Miranda's argument
that his parents would have had to intermarry before his father
acknowledged him is unavailing. That is because, in 1980, the
Massachusetts Supreme Judicial Court struck down as
unconstitutional a statutory requirement of intermarriage as a
condition for establishing legitimation. See Lowell v. Kowalski,
405 N.E.2d 135, 141 (Mass. 1980). Acknowledgement of paternity
alone was sufficient for legitimation under Massachusetts law in
1995, and Miranda's father fulfilled that requirement.
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In sum, Miranda has failed to meet his burden of showing
that he is a U.S. citizen. And as he has not made any argument
that he is nonetheless a U.S. national, we must conclude that the
jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applies, and we
dismiss his petition for review.
C. Applicability of Res Judicata in Removal Proceedings
Miranda also argues that IJ Day and the BIA should have
applied res judicata to IJ Adkins-Blanch's 2007 decision, rather
than relitigating the issue of his U.S. citizenship. He makes
this argument by pointing out that 8 U.S.C. § 1252(a)(2)(D)
preserves our jurisdiction over "constitutional claims or
questions of law raised upon a petition for review,"
notwithstanding § 1252(a)(2)(C)'s jurisdictional bar, and that the
applicability of res judicata is a question of law.3
3 Miranda cites one case, Porn v. National Grange Mutual
Insurance Co., 93 F.3d 31 (1st Cir. 1996), for the proposition
that the applicability of res judicata is a question of law. Porn,
however, dealt with res judicata in the context of a judicial
proceeding, in which preclusion doctrines are more rigidly applied
than they are in an administrative proceeding. See, e.g., Astoria
Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 109–10 (1991).
The BIA decision, from which this petition arises, focused on the
applicability of res judicata specifically in the context of
administrative removal proceedings. By failing to address these
nuances and elaborate on why we should recognize the applicability
of res judicata in removal proceedings as a question of law for
purposes of § 1252(a)(2)(D), Miranda may have waived his argument
that the BIA should have applied res judicata. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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But we need not reach this argument in light of our
plenary determination that Miranda has failed to meet his burden
of proving U.S. citizenship. Given our foregoing analysis, it
would be counterintuitive to explore whether the BIA should have
accorded preclusive effect to an earlier IJ decision that reached
a conclusion flatly contrary to our own. Indeed, Congress could
not reasonably have intended § 1252(a)(2)(D) to allow us -- after
having independently determined that Miranda is a removable alien
-- to nonetheless consider a question of law that Miranda advances
with the hope that we require the BIA to adopt a conflicting
conclusion and grant Miranda, an alien with multiple felony
convictions, immunity from removal.
III.
We conclude that Miranda has failed to meet his burden
of proving that he is a U.S. citizen. As Miranda is neither a
citizen nor a national, he is an alien. The jurisdictional bar in
8 U.S.C. § 1252(a)(2)(C) thus applies and precludes our review of
the final order of removal against Miranda. The petition for
review is dismissed.
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