[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 13, 2005
No. 05-10059
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A90-956-801
ADALBERTO TOVAR-ALVAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 13, 2005)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Adalberto Tovar-Alvarez, a native of Mexico, petitions this Court for review
of the Board of Immigrations Appeals’ decision affirming the Immigration Judge’s
order of that he be removed from the United States. Because we conclude that the
BIA’s decision comported with the applicable law and is supported by substantial
evidence, we deny the petition.
I.
It is unclear when Tovar-Alvarez entered the United States; however, he
became a lawful permanent resident on December 1, 1990. On August 8, 1996,
Tovar-Alvarez filed for naturalization with the INS and signed a statement that he
was willing to swear an oath of allegiance to the United States. The INS conducted
a naturalization interview with Tovar-Alvarez on March 3, 1999. At this
interview, Tovar-Alvarez executed his petition for naturalization and completed the
English language, history, and government tests. At the request of the INS
interviewer, he then raised his right hand, signed his petition for naturalization, and
signed an oath of allegiance to the United States. The INS had not yet finished
processing his petition for naturalization on January 16, 2001, when Tovar-Alvarez
was convicted in Florida state court for trafficking in amphetamines.
After his conviction, Tovar-Alvarez was charged with removability for
having been convicted of an aggravated felony and a drug crime, pursuant to
8 U.S.C. §§1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). The IJ ordered him removed and
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the BIA affirmed the IJ’s order of removal. Tovar-Alvarez then petitioned this
Court for review.
Tovar-Alvarez contends that he is not removable because he became either a
citizen or a national of the United States before his conviction and, therefore, was
not an alien subject to removability for having been convicted of an aggravated
felony or drug crime. Even if he is not a citizen or national of the United States, he
argues, the government should be equitably estopped from claiming he is an alien
because the only reason he was still an alien at the time of his conviction is the
INS’s failure to process his petition for naturalization within 120 days, as required
by its own regulations.
II.
While Tovar-Alvarez’s petition for review was pending before this Court,
Congress passed, and the President signed into law, the REAL ID Act of 2005,
which amended the INA’s rules governing judicial review. See REAL ID Act of
2005, Pub. L. 109-13, 119 Stat. 231. The Act made the permanent rules applicable
to all petitions for review, providing that any petition for review “filed under
former section 106(a) of the Immigration and Nationality Act (as in effect before
its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1252 note)) shall be treated as if it had been
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filed as a petition for review under section 242 of the Immigration and Nationality
Act (8 U.S.C. 1252).” Id. §106(d), 119 Stat 231, 311.
The Act also amended § 242(a)(2) of the INA by adding subsection (D),
which states:
JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS.--Nothing in
subparagraph (B) or (C), or in any other provision of this Act (other
than this section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
accordance with this section.
Id. §106(a), 119 Stat. 231, 310 (emphasis added). The Act further provides that
this amendment “shall take effect upon the date of the enactment of this division
and shall apply to cases in which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after the date of the enactment
of this division.” Id. §106(b).
Under the permanent rules, this Court has jurisdiction to review whether
Tovar-Alvarez is an alien. Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001)
(“We have held that under the plain language of INA § 242(a)(2)(C), a court is
permitted to review only the threshold issues of whether Petitioner is (1) an alien;
(2) who is removable; (3) based on having committed a disqualifying offense.”).
The REAL ID Act has given us jurisdiction to review as well “questions of law
raised upon a petition for review.” Pub. L. 109-13 §106(a), 119 Stat. 231, 310.
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Tovar-Alvarez’s equitable estoppel argument is a such question of law and
therefore subject to our review. See United States v. Walcott, 972 F.2d 323, 325
(11th Cir. 1992) (“Whether the district court was correct in applying equitable
estoppel in this case is a question of law subject to de novo review.”); see also
Balogun v. U.S. Att’y Gen., – F.3d –, 2005 WL 2333840, at *2-5 (11 th Cir. Sept.
26, 2005) (noting that under the REAL ID ACT’s amendments courts of appeal
now have jurisdiction to review the question of law as to whether “a petitioner’s
conviction is an aggravated felony within the meaning of 8 U.S.C. § 1182(h)”).
III.
Tovar-Alvarez contends that he became an American citizen when he signed
the oath vowing allegiance to the United States in the presence of an INS officer
during his naturalization interview. We review de novo legal questions arising
from claims of nationality. Sebastian-Soler v. U.S. Attorney Gen., 409 F.3d 1280,
1283 (11th Cir. 2005) (per curiam).
“The sole authority to naturalize persons as citizens of the United States is
conferred upon the Attorney General.” 8 U.S.C. § 1421(a). In order to become a
citizen, an applicant must take an oath of allegiance during a “public ceremony
before the Attorney General or a court with jurisdiction under section 1421(b).”
8 U.S.C. § 1448(a). It is the Attorney General’s responsibility to “prescribe rules
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and procedures to ensure that the ceremonies conducted by the Attorney General
for the administration of oaths of allegiance . . . are public, conducted frequently
and at regular intervals, and are in keeping with the dignity of the occasion.” 8
U.S.C. § 1448(d).
Pursuant to his rule-making authority, the Attorney General has promulgated
the following regulation regarding the “public ceremony” requirement:
An applicant for naturalization who has elected to have his or her oath
of allegiance administered by the Service or an Immigration Judge
and is not subject to the exclusive oath administration authority of an
eligible court pursuant to section 310(b) of the Act shall appear in
person in a public ceremony, unless such appearance is specifically
excused under the terms and conditions set forth in this part. Such
ceremony shall be held at a time and place designated by the Service
or the Executive Office for Immigration Review within the United
States and within the jurisdiction where the application for
naturalization was filed, or into which the application for
naturalization was transferred pursuant to § 335.9 of this chapter.
8 C.F.R. § 337.2(a) (emphasis added); see also 8 C.F.R. § 337.9(a) (stating that an
applicant for naturalization is not a citizen until “the applicant takes the prescribed
oath of allegiance . . . in an administrative ceremony or in a ceremony conducted
by an appropriate court . . .”).
Tovar-Alvarez has failed to show that he has taken the oath of allegiance
during a public ceremony. Because Tovar-Alvarez failed to participate in a public
ceremony as required by the regulations governing naturalization, he has not
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satisfied the statutory prerequisites of citizenship. Accordingly, we conclude that
Tovar-Alvarez is not a citizen of the United States.
IV.
Tovar-Alvarez also contends that he has become an American national by
demonstrating his allegiance to the United States during his 20-year residence in
this country. In support of this claim, Tovar-Alvarez notes that he has numerous
relatives living legally in the United States; that he has registered with the
Selective Service; that he has applied for naturalization; and that he has signed the
oath of allegiance to the United States. He argues that the plain language of the
INA, the Fourth Circuit’s decision in United States v. Morin, 80 F.3d 124 (4th Cir.
1996), and international law, support his position.
In Sebastian-Soler, we rejected the notion that an alien could establish
nationality by demonstrating his permanent allegiance to the United States through
longtime residence and application for citizenship. 409 F.3d at 1285–87. Though
8 U.S.C. § 1101(a)(22) states that a person is a “national of the United States” if he
owes “permanent allegiance to the United States,” the manner in which one comes
to owe allegiance to the United States is through birth or naturalization pursuant to
the statutory scheme enacted by Congress, see 8 U.S.C. §§ 1401–1409,
1421–1458. Sebastian-Soler, 409 F.3d at 1286. Moreover in Sebastian-Soler, we
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specifically rejected the Fourth Circuit’s reasoning in Morin. 409 F.3d at 1287.
Because Tovar-Alvarez was not born in the United States and has not been
naturalized, he is not a United States national.
V.
Finally Tovar-Alvarez contends that the government should be equitably
estopped from treating him as an alien because the INS should have granted him
citizenship within 120 days of its March 1999 examination of his naturalization
application.
The INS’s regulations provide that an INS officer “shall grant the
application [for naturalization] if the applicant has complied with all requirements
for naturalization under this chapter. A decision to grant or deny the application
shall be made . . . within 120 days after the date of the initial examination of the
applicant.” 8 C.F.R. § 335.3(a).
Tovar-Alvarez argues that the INS had a duty to act and that it unreasonably
failed to do so because his petition for naturalization had not yet been granted
nearly two years after the interview. He characterizes this failure to act as
affirmative government misconduct solely attributable to the INS and contends that
the government should be equitably estopped from asserting that he is an alien
because, but for the INS’s malfeasance, he would not be one.
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Whether equitable estoppel should apply is a legal question that we review
de novo. Walcott, 972 F.2d at 325. The Supreme Court has never established that
the doctrine of equitable estoppel can be applied against the government and, in
fact, has implied that it can not be. Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir.
1999) (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422, 110 S. Ct.
2465, 2470 (1990) (“In sum, Courts of Appeals have taken our statements as an
invitation to search for an appropriate case in which to apply estoppel against the
Government, yet we have reversed every finding of estoppel that we have
reviewed.”)).
Even assuming equitable estoppel could be asserted against the government,
it would require a showing of affirmative misconduct on the government’s part.
Tefel, 180 F.3d at 1303. The INS’s delay in processing Tovar-Alvarez’s petition
for naturalization does not rise to the level of affirmative misconduct. See
Immigration & Naturalization Serv. v. Miranda, 459 U.S. 14, 103 S. Ct. 2812
(1982) (holding that the INS’s 18-month delay in considering an application for a
spousal immigrant visa was not the type of affirmative misconduct which could
estop the government). Accordingly, Tovar-Alvarez’s equitable estoppel argument
fails.
PETITION DENIED.
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