concurring in part and dissenting in part:
I concur in the result. I agree with all but part 11(A) of the opinion because I disagree with that important section on jurisdiction.
As in many asylum cases, the outcome here is a sad one. A man who served honorably in our armed forces during wartime, and whose only connection with Haiti is that he was born there, will be sent back, with no apparent way to earn a living and no ability even to speak the language. But as the majority concludes, there is nothing we can do about that.1
The majority’s jurisdictional argument, however, is mistaken. Administrative pro*1114ceedings like those in our immigration courts exist because the large volume of cases requires specialized courts that handle nothing else and can resolve the cases within a reasonable time. Theagene was haled into such a court because he was convicted of burglary in a dwelling2 — conduct that gets aliens deported from our country.3 The immigration court had jurisdiction, however, only if Theagene was an alien. He could have. avoided the removal order, despite his aggravated felony, merely by establishing that he was not an alien.
We are now reviewing the BIA’s decision, and the statute limits us to a review of the record and the decisions made on the points raised before the BIA. Title 8 U.S.C. § 1252(d)(1), a subsection of the judicial review statute, says that we may review a removal order only if “the alien has exhausted all administrative remedies available to the alien as of right.” 4 Title 8 U.S.C. § 1252(b)(4)(A) says that we must “decide the petition only on the administrative record.”5 The record shows that not only did Theagene fail to argue in the administrative proceedings that he was not an alien,- but he also testified expressly, under oath, that he was an alien. The Immigration Judge asked Theagene at the beginning of his hearing whether he was a citizen or national of the United States. Theagene replied, “No, sir.” The IJ then asked him if he was a native and.citizen of Haiti. Theagene replied, “Yes, sir.” That should end this case. We have no occasion to decide whether a person who is not an alien can obtain de novo adjudication of his citizenship in this court, because Theagene is not such an individual — by his own judicial admission. Our court cannot properly adjudicate a claim to citizenship that a petitioner has affirmatively waived.6 Perhaps some American nationals mistakenly waive their claim to citizenship before an IJ. But had Theagene done so here, the lawyer he obtained while his case was still before the IJ could- have clarified the record and asserted Theagene’s claim to citizenship. Such a clarification would have defeated the jurisdiction of the immigration court and prevented the removal order.
The majority opinion disregards this waiver, and the majority’s decision to reach the waived claim conflicts with our decision in Taniguchi v. Schultz.7 I concede that Taniguchi appears 'to be in tension with our decision in Hughes v. Ashcroft,8 but that tension does not entitle a panel to disregard Taniguchi. We are bound by Taniguchi, under which a frivolous claim of citizenship fails where a petitioner does not exhaust his administrative remedies by raising the issue of citizenship before the IJ or the BIA.9 It is clear that Theagene failed to raise his claim of citizenship before the IJ or the BIA, thereby failing to exhaust his claim. ' Since Tani-guchi we have held that a petitioner need not exhaust a nonfrivolous claim of citizen*1115ship.10 But at the time we heard Theag-ene’s claim that he had become a national of the United States by taking the military oath, his claim had been rendered frivolous because we had already held that the only way someone can become a U.S. national is by birth or completion of the naturalization process.11 We therefore have no jurisdiction to review Theagene’s frivolous claim of citizenship that he raises before us for the first time.12
Only if .Theagene had raised his claim to citizenship before the IJ and the BIA would 8 U.S.C. § 1252(b)(5), the statutory section upon which the majority relies, be material. That section is part of the “Judicial Review” statute that applies to petitions to the courts of appeals, and our review is limited to points raised and the record made below.13 Had Theagene made his citizenship claim in his immigration court proceedings and lost, we would proceed according to the subsection of the judicial review statute relied upon by the majority. If the question were entirely legal, we would decide it, and if contested facts had to be determined, we would send it to the district court.14 Either way, our decision would be de novo, without the usual deference to the agency, because the statute says that a nationality claim may be decided only as provided by § 1252(b)(5).15
But, as the majority concedes, our jurisdiction under § 1252(b)(5) cannot be exclusive. The IJ and the BIA must be capable of determining whether they have jurisdiction, which requires determining whether the person appearing before them actually is an alien. That is why the IJ asked Theagene what his nationality was, and whether he was a United States citizen. Subsection 1252(b)(5), which gives us jurisdiction to determine citizenship, is part of § 1252 which governs “Judicial Review,” so § 1252(b)(5) is plainly part of the system for reviewing a decision that the BIA has already made, rather than a means of detouring around the BIA. When § 1252(b)(5) says that “[t]he petitioner may have such nationality claim decided only as provided in this paragraph,” the word “only” cannot mean “the courts of appeals are the only place citizenship can be determined.” Such an interpretation would make it impossible for the administrative agency to determine whether it had jurisdiction in contested cases. The word “only” must mean “this is the only way that the court of appeals can adjudicate alienage or citizenship if the point arises on review.”
In Moussa v. INS,16 the Eighth Circuit case on which the majority relies, the petitioner claimed all the way through his administrative proceedings that he was not subject to removal because he was a citizen.17 Moussa upholds the correct proposition that where a person has claimed all along to be a citizen, and the BIA has decided that he is an alien, the court of appeals should decide, pursuant to *1116§ 1252(b)(5), whether he is actually an alien or a citizen. This is because if he. were not an alien, the IJ and BIA would have lacked jurisdiction over his person, and their decisions would be a nullity.18 Moussa does not stand for the proposition that one may litigate his case on the merits before the IJ and BIA, expressly conceding that he is an alien, but then relitigate his claims in the court of appeals on the contradictory basis that he is a citizen.
It makes no sense to establish an administrative process for handling the huge vol-. ume of immigration cases, but then, after a person has conceded that he is an alien and lost on the merits in the immigration court, permit him to start all over again by saying “I am not an alien, but a citizen,” in the court of appeals. Allowing a person to try out an asylum claim by asserting that he is not a citizen, and then try to avoid an adverse asylum determination by asserting that he is a citizen, invites abuses that the overburdened system of adjudicating immigration cases cannot bear.
. See Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938-40 (9th Cir.2004); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966-72 (9th Cir.2003).
. See Cal.Penal Code § 459(a).
. See 8 U.S.C. § 1252(a)(2)(C); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1045 (9th Cir.2004) (noting that a burglary offense for which a term of at least one-year imprisonment was imposed is an "aggravated felony”).
. 8 U.S.C. § 1252(d)(1); see Bairon v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
. 8 U.S.C. § 1252(b)(4)(A).
. See Barron, 358 F.3d at 677-78; Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.2003).
. Taniguchi v. Schultz, 303 F.3d 950 (9th Cir.2002).
. Hughes v. Ashcroft, 255 F.3d 752 (9th Cir.2001).
. Taniguchi, 303 F.3d at 955.
. See Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.2005); Rivera v. Ashcroft, 394 F.3d 1129, 1138, 1140 (9th Cir.2005).
. See Perdomo-Padilla, 333 F.3d at 972; see also Reyes-Alcaraz, 363 F.3d at 938-40.
. See Minasyan, 401 F.3d at 1075 & n. 9 (noting that Taniguchi would bar jurisdiction over a frivolous claim of citizenship); Rivera, 394 F.3d at 1138 (same).
. 8 U.S.C. § 1252(b)(4).
. 8 U.S.C. §§ 1252(b)(5)(A)-(B).
. 8 U.S.C. § 1252(b)(5)(C).
. Moussa v. INS, 302 F.3d 823 (8th Cir.2002).
. See id. at 824; see also Minasyan, 401 F.3d at 1074-75 (reviewing a non-frivolous claim of citizenship where the petitioner had argued that he was a citizen throughout his administrative proceedings); Rivera, 394 F.3d at 1136-39 (same).
. See Moussa, 302 F.3d at 825.