Abou-Haidar v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-1453

JOSEPH NASSIB ABOU-HAIDAR,

Petitioner,

v.

ALBERTO R. GONZALES, United States Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge

and Howard, Circuit Judge.

Richard M. Green for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
David V. Bernal, Assistant Director, and Anthony P. Nicastro,
Attorney, United States Department of Justice, Civil Division,
Office of Immigration Litigation, on brief for respondent.

February 21, 2006
 HOWARD, Circuit Judge. This petition for review raises

the issue of whether action short of completing the naturalization

process may render an alien a "national" of the United States.

Petitioner Joseph Nassib Abou-Haidar is a citizen of

Lebanon who entered the United States as a legal permanent resident

in 1983. In 2001, Abou-Haidar was convicted of armed robbery. The

Immigration and Naturalization Service ("INS")1 placed him in

removal proceedings, seeking to deport him as an aggravated felon.

Abou-Haidar moved to terminate the proceedings on the ground that

he was not an "alien"2 because he had acquired derivative

citizenship and/or qualified as a "national"3 of the United States.

The immigration judge denied the motion, ordered Abou-Haidar

removed, and subsequently denied a motion to reconsider. The Board

of Immigration Appeals ("BIA") affirmed.

Abou-Haidar argues that the BIA erred in concluding that

he was not a "national" of the United States. We review this legal

question de novo. See generally Fierro v. Reno, 217 F.3d 1, 3

1
The relevant functions of the INS were transferred to the
Department of Homeland Security and reorganized into the Bureau of
Immigration and Customs Enforcement in March 2003.
2
See 8 U.S.C. § 1101(a)(3) ("alien means any person who is not a
citizen or national of the United States").
3
"The term 'national of the United States' means (A) a citizen of
the United States, or (B) 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).

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(1st Cir. 2000). Abou-Haidar bases his claim on the following

facts: (1) he has resided in the United States as a legal permanent

resident since 1983; (2) he registered with the U.S. Selective

Service System in 1984; (3) he filed an application for

naturalization in 1997; and (4) at his 1998 naturalization

interview, he swore allegiance to the United States and signed an

oath declaration form. Although his naturalization application was

denied in 1999, Abou-Haidar asserts that his circumstances

establish him as a person who "owes permanent allegiance to the

United States."

The overwhelming majority of circuit courts to consider

the question have concluded that one can become a "national" of the

United States only by birth or by naturalization under the process

set by Congress. See, e.g., Marquez-Almanzar v. INS, 418 F.3d 210,

216-19 (2d Cir. 2005); Sebastian-Soler v. U.S. Att'y Gen., 409 F.3d

1280, 1285-87 (11th Cir. 2005); Salim v. Ashcroft, 350 F.3d 307,

309-10 (3d Cir. 2003); Perdomo-Padilla v. Ashcroft, 333 F.3d 964,

972 (9th Cir. 2003). A long period of residence in the United

States, military service and/or registration with the Selective

Service, and completing a portion of the naturalization process

(including an oath of allegiance) do not suffice. See Tovar-

Alvarez v. U.S. Att'y Gen., 427 F.3d 1350, 1353 (11th Cir. 2005);

Alwan v. Ashcroft, 388 F.3d 507, 512-13 (5th Cir. 2004); Reyes-

Alcaraz v. Ashcroft, 363 F.3d 937, 939-40 (9th Cir. 2004); United

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States v. Jimenez-Alcala, 353 F.3d 858, 860-62 (10th Cir. 2003).4

There are several justifications for this conclusion.

First, absent a fully completed naturalization process, the term

"national" has traditionally only been applied to certain persons

born in the outlying territories of the United States. See

Jimenez-Alcala, 353 F.3d at 861 (stating that the concepts of

"citizenship" and "nationality" are essentially synonymous, and

that the only noncitizen U.S. nationals are residents of American

Samoa and Swains Island); see also Reyes-Alcaraz, 363 F.3d at 939.

Second, the relevant immigration statutes, 8 U.S.C. §§ 1401-1458,

provide that completion of naturalization is the only means by

which an alien can become a national of the United States. See

Marquez-Almanzar, 418 F.3d at 216-19; Sebastian-Soler, 409 F.3d at

1285-86; Perdomo-Padilla, 333 F.3d at 968-71. Third, the contrary

result could potentially allow an alien to avoid deportation by

simply filing a futile naturalization application. See Perdomo-

Padilla, 333 F.3d at 970. Fourth, we do not think that the

submission of a naturalization application, which can be denied or

4
There is one circuit decision that may be to the contrary. In the
context of a criminal appeal, the Fourth Circuit concluded, without
elaboration, that the defendant's victim was a United States
"national" because he had applied for citizenship, thereby showing
a "permanent allegiance to the United States." See United States
v. Morin, 80 F.3d 124, 126 (4th Cir. 1996). We do not follow Morin
because, as explained above, we find the contrary view more
persuasive. We note, moreover, that in a recent unpublished
immigration case, the Fourth Circuit distinguished Morin and
followed the majority position. See Daly v. Gonzales, 129 Fed.
Appx. 837, 840-43 (4th Cir. 2005).

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withdrawn at any time by the applicant, is very strong evidence of

a "permanent" allegiance to the United States. See id. at 968-69;

see also Jimenez-Alcala, 353 F.3d at 861-62 (residing in the United

States for a long period or subjectively considering oneself a

person who owes permanent allegiance to the U.S. does not render

one a national).

Because Abou-Haidar was never naturalized, he is not a

"national" of the United States. The petition is therefore denied.

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