F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 30, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
B EN A D S. A BIO D U N ,
Petitioner,
v. Nos. 05-9585 and 05-9603
ALBERTO R. GONZALES, Attorney
General,
Respondent.
PETITIO N FO R R EV IEW O F A N O RD ER OF
THE BOA RD O F IM M IGR ATION APPEALS
(B.I.A. NO . A73-764-249)
Submitted on the briefs: *
Benad S. Abiodun, pro se.
Patricia M . Corrales-Talleda, Attorney, and M ark C. W alters, Assistant Director,
Office of Immigration Litigation/Civil Division, United States Department of
Justice, Los A ngeles, California, for Respondent.
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
HA RTZ, Circuit Judge.
Benad Abiodun is a native and citizen of Nigeria who entered the United
States lawfully in 1996. On M ay 4, 2005, an immigration judge (IJ) ordered him
removed from this country as an aggravated felon because of his Colorado
conviction in 2002 for distribution of a controlled substance. The Board of
Immigration Appeals (BIA) affirmed, and M r. Abiodun seeks review in this court.
He contends that (1) he was nationalized when he signed an oath of allegiance as
part of his naturalization application process; (2) his due-process and statutory
rights were violated when his application for naturalization was denied; (3) the
records of the Colorado conviction on which his removal was based were
falsified, and the verdict was not supported by sufficient evidence; (4) his due-
process rights w ere violated by the issuance of an immigration detainer shortly
after his state conviction, and by his detention during the removal proceedings;
and (5) he has not abandoned his application for asylum. W e affirm, holding that
signing an oath of allegiance during a naturalization examination is insufficient to
confer citizenship; removal proceedings are not a proper forum to attack either
the denial of an application for naturalization or a state-court conviction; there is
no record support for a claim of falsification; we need not consider his challenge
to the detainer or his detention during removal proceedings because he does not
claim any resulting prejudice with respect to those proceedings; and we lack
-2-
jurisdiction to review his challenge to the determination that he abandoned his
asylum application.
I. B ACKGR OU N D
On January 17, 2001, M r. Abiodun filed an application for naturalization
with the Immigration and Naturalization Service (INS). 1 On October 4, 2004, his
application for naturalization was denied by the Denver District Director of the
1
On M arch 1, 2003, the IN S ceased to exist, see Homeland Security Act of
2002 (H SA), Pub. L. No. 107-296, § 471; 116 Stat. 2135, 2205; 6 U.S.C. § 291.
Three separate agencies within the Department of Homeland Security (DHS) have
taken its place. The Homeland Security Act (HSA ) created the Bureau of
Citizenship and Immigration Services, see HSA § 451; 116 Stat. 2135, 2195;
6 U .S.C. § 271, and made it responsible for adjudication of immigrant and visa
petitions, naturalization petitions, and asylum and refugee applications, and
adjudications performed at INS service centers, see 6 U.S.C. § 271(b). The HSA
also created the Bureau of Border Security, see HSA § 442; 6 U.S.C. § 252, and
gave it authority over several programs, including the Border Patrol, detention
and removal, intelligence, investigations, and inspections, see HSA § 441;
6 U.S.C. §§ 251, 252(a)(3)(A)(i). In addition, the HSA transferred to DHS the
nonrevenue functions of the United States Customs Service. See HSA §§ 403(1)
and 412; 6 U.S.C. §§ 203(1) and 212. Section 1502 of the HSA , 6 U.S.C. § 254,
authorized further reorganization. Under the reorganization the Bureau of
Customs and Border Protection was created and the Bureau of Border Security
was renamed the Bureau of Immigration and Customs Enforcement. Press
Release, United States Department of Homeland Security, Border Reorganization
Fact Sheet, (Jan. 30, 2003) available at
http://www.dhs.gov/dhspublic/interapp/press_release_0073.xml. It is now the
responsibility of the Bureau of Customs and Border Protection “to secure the
nation’s borders”; the Bureau of Immigration and Customs Enforcement “to
enforce immigration laws”; and the Bureau of Citizenship and Immigration
Services “to facilitate lawful immigration.” Press Release, United States
Department of Homeland Security, Fact Sheet: Leadership and M anagement
Strategies for Homeland Security M erger, (Feb. 11, 2004) available at
http://www.dhs.gov/dhspublic/display?content=3155.
-3-
Bureau of Citizenship and Immigration Services (BCIS), because in April 2002 a
Colorado state-court jury had found him guilty on two counts of distribution of a
controlled substance. See People v. Abiodun, 111 P.3d 462 (Colo. 2005).
In the meantime, on July 8, 2002, the INS had comm enced removal
proceedings against him; it issued a notice to appear and a warrant for his arrest,
and filed a detainer with Colorado authorities. On April 15, 2004, while
M r. Abiodun was still in Colorado prison, he participated by video conference in
his initial removal hearing before the IJ. The hearing was continued to October 7,
2004, for reasons that are not apparent from the record. That hearing was further
continued when a question arose about whether M r. Abiodun’s conviction was
still on appeal. On December 30, 2004, M r. Abiodun was released from Colorado
prison on parole. The INS w arrant for his arrest was executed that day and he
was taken into custody by the Bureau of Immigration and Customs Enforcement.
After a brief hearing on January 18, 2005, the merits hearing on removal
was conducted on February 1, 2005. The following colloquy occurred between
M r. Abiodun and the IJ:
Q. If you deny any of these statements, the Government
attorney will have to prove them in order to prove that you are
deportable. Now the first one is, are you a citizen or a national of
the U nited States?
A. I’m not a citizen or national of the United States.
Q. You are not?
-4-
A. Yes, Your Honor.
...
Q. All right. That’s fine. Number 2, are you a native and
citizen of Nigeria?
A. Yes, Your Honor.
Q. All right. Number 3, did you enter the United States at
Denver, Colorado on October 9th, 1996?
A. Yes, Your Honor.
Q. Number 4, were you admitted to this country then as a
permanent resident. In other words, a legal immigrant?
A. Yes, Your Honor.
Q. All right. Now, number 5 says and, of course, this is the
reason for the removal hearing. It says that you were convicted in
Jefferson County, Colorado for distribution of cocaine on M ay 28th,
2002. It says the crime was committed on June 21st, ‘01. And it
says you received a [sentence] of 4 years at the Department of
Corrections. Is this statement true or false?
A. That statement is true, Your H onor.
R. at 227-28. At the hearing M r. Abiodun complained that the BCIS had rejected
his application for naturalization after taking longer than permitted by law to
make a determination. The IJ responded, “W ell, sir, they denied your application
for naturalization and I don’t have any jurisdiction to review that. And if you
were to apply today you would not be eligible for naturalization because of your
conviction record.” Id. at 233. The IJ adjourned the case to give M r. Abiodun
time to complete an application for asylum. But at a hearing on M arch 14, 2005,
-5-
M r. Abiodun said he would not sign his application, and the IJ considered it
withdrawn.
Also at the M arch 14 hearing, the IJ considered M r. Abiodun’s motion to
terminate the removal proceedings on the ground that his state conviction was not
final for immigration purposes because it was still on direct appeal. The motion
cited M atter of Thom as, 21 I. & N. Dec. 20 (BIA 1995), which stated that “[i]t is
well settled that a conviction does not attain a sufficient degree of finality for
immigration purposes until direct appellate review of the conviction has been
exhausted or waived. Consequently, a non-final conviction cannot support a
charge of deportability . . . .” Id. n.1. After that decision, however, the Illegal
Immigration Reform and Immigrant Act (IIRIRA) of 1996, Pub. L. No. 104-208,
110 Stat. 3009-546, adopted the following definition of conviction:
The term “conviction” means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court or, if
adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty,
or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). At least two circuits have held that this definition
eliminated any reference to appellate finality. See M ontenegro v. Ashcroft, 355
F.3d 1035, 1037 (7th Cir. 2004) (“IIRIRA eliminated the finality requirement for
-6-
a conviction.”); M oosa v. INS, 171 F.3d 994, 1009 (5th Cir. 1999) (“There is no
indication that the finality requirement . . . survives the new definition of
‘conviction’ found in IIRIRA.”). In any event, in an order dated M arch 22, 2005,
the IJ reported that M r. Abiodun’s direct appeal had been decided, and only the
government’s petition for certiorari to the Colorado Supreme Court (which related
to other charges against him) had been granted. He therefore denied the motion.
On M ay 4, 2005, the IJ issued an oral decision ordering that M r. Abiodun
be removed to Nigeria. After noting that M r. Abiodun “had stated that he
wish[ed] to be considered for naturalization and have this hearing held in
abeyance,” the IJ responded that “a person who is convicted of an aggravated
felony cannot show good moral character for the purposes of naturalization and is
permanently ineligible.” R. at 208. On September 21, 2005, the BIA dismissed
M r. Abiodun’s appeal of the IJ’s decision. The BIA stated:
The [IJ]’s decision finding [M r. Abiodun] removable as charged and
denying his motion to hold his case in abeyance while he seeks
naturalization is amply supported by the record. In particular, the
record establishes the finality of the respondent’s M ay 28, 2002,
conviction for distribution of a controlled substance. Further, as
noted by the [IJ], the respondent, whose naturalization application
has already been denied by the Department of Homeland Security
(DHS), is ineligible for naturalization due to his drug conviction
which occurred during the 5 years in which he must show good moral
character.
Id. at 2 (internal citation omitted). M r. Abiodun filed a timely petition with this
court for review of the BIA order.
-7-
On October 21, 2005, M r. Abiodun filed with the BIA a motion to
reconsider, challenging the denial of his application for naturalization. He
asserted that he had “met all his statutory eligibility requirement[s] for
naturalization preceding January 17, 2002, the date his Application for
Naturalization was filed,” R. Supp. at 32, and that the “decision to deny
naturalization based on the appealed jury conviction of M ay 28, 2002, was a
procedural error by the agency which violated the respondent’s constitutional and
statutory rights for naturalization and would warrant a reconsideration.” Id. at 33.
On November 14, 2005, he filed with the BIA an Emergency M otion for a Stay,
requesting that his removal from the country be stayed until his motion to
reconsider was resolved. The government opposed the motion, and M r. Abiodun
responded that he had “requested for a de novo judicial review of his petition for
naturalization, pursuant to 8 U.S.C. 1421(c).” Id. at 15. That request is not in the
record before this court. On November 16, 2005, M r. Abiodun filed with the B IA
a motion to supplement his motion to reconsider. This motion contended that the
BCIS failed to act on his application for naturalization in a timely manner, which
“renders its decision to deny naturalization void and transfers jurisdiction to
United States district court, Colorado District.” Id. at 10. The motion also stated
that as part of the naturalization application process he took an oath of allegiance
before an INS examiner, rendering him stateless if he were not naturalized. The
BIA denied the motion to reconsider on December 8, 2005. M r. Abiodun timely
-8-
petitioned for review of that decision as w ell. On December 23, 2005, this court
consolidated the two petitions for review, and in this opinion we address together
the various issues raised in the two petitions.
II. D ISC USSIO N
The government contends that we lack jurisdiction to consider this appeal
because M r. Abiodun is removable as the result of his comm ission of an
aggravated felony. It relies on 8 U.S.C. § 1252(a)(2)(C), which states, in relevant
part:
Notwithstanding any other provision of law (statutory or
nonstatutory) . . . , 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 comm itted a
criminal offense covered in section 1182(a)(2) or 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 for which both predicate offenses are,
without regard to their date of commission, otherwise covered by
section 1227(a)(2)(A)(i) of this title.
(emphasis added). Section 1227(a)(2)(A)(iii) states that an alien who comm its an
aggravated felony is deportable. There is no question that M r. Abiodun’s drug-
trafficking convictions were aggravated felonies, see id. § 1101(a)(43)(B); but the
jurisdiction-strippping mandate of § 1252(a)(2)(C) has been limited by the
immediately succeeding subparagraph, id. § 1252(a)(2)(D), which was added as
part of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231.
Subparagraph (D) states:
-9-
Nothing in subparagraph (B) or (C), or in any other provision of this
chapter (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.
In the discussion that follows, we will address our jurisdiction with respect to
each claim.
M r. Abiodun’s first claim is that he is a national of the United States
because, as part of the application process for naturalization, he swore an oath of
allegiance to the United States. Ordinarily, courts of appeals reviewing removal
orders have jurisdiction to consider such claims under 8 U.S.C. § 1252(b)(5)(A),
which states: “If the petitioner claims to be a national of the United States and
the court of appeals finds from the pleadings and affidavits that no genuine issue
of material fact about the petitioner’s nationality is presented, the court shall
decide the nationality claim.” See Perdomo-Padilla v. Ashcroft, 333 F.3d 964,
966 (9th Cir. 2003) (noting jurisdiction over an identical claim under
§ 1252(b)(5)). The typical case under this section is one in which a person
undergoing removal proceedings contends that he or she “automatically” became
a citizen. See, e.g., 8 U.S.C. § 1431 (“A child born outside the United States
automatically becomes a citizen of the United States w hen . . . .”); Joseph v. Att’y
Gen. of the U. S., 421 F.3d 224 (3d Cir. 2005) (reviewing claim that petitioner
becam e a citizen through the naturalization of alleged mother). If there is a
disputed issue of material fact over the nationality claim, under Subparagraph (B)
-10-
“the court shall transfer the proceeding to the district court of the United States
for the judicial district in which the petitioner resides for a new hearing on the
nationality claim.” 8 U.S.C. § 1252(b)(5)(B). Subparagraph (C) adds: “The
petitioner may have such nationality claim decided only as provided in this
paragraph.” Section 1252(b)(5), however, is not excepted from the jurisdiction-
stripping mandate of § 1252(a)(2)(C). Therefore, because M r. Abiodun is being
removed for commission of an aggravated felony, we can review his claim under
§ 1252(b)(5) only with respect to constitutional claims or questions of law.
The contention raised by M r. Abiodun is a pure question of law . There is
no genuine issue of material fact with respect to M r. Abiodun’s claim of
nationality. The government concedes that M r. Abiodun “signed an oath of
allegiance during his naturalization interview.” But the government contends that
such signing “is insufficient to make him a citizen of the United States because an
oath must occur during a public ceremony and Abiodun’s did not.” Resp’t Br. at
20-21. W e agree. Signing an oath during the application process does not satisfy
the “public ceremony” requirement of 8 U.S.C. § 1448 (“A person who has
applied for naturalization shall, in order to be and before being admitted to
citizenship, take in a public ceremony before the Attorney General or a court with
jurisdiction under section 1421(b) of this title an oath . . . .”). See Tovar-Alvarez
v. U. S. Att’y Gen., 427 F.3d 1350, 1353 (11th Cir. 2005) (rejecting an identical
claim because petitioner “failed to show that he has taken the oath of allegiance
-11-
during a public ceremony”); Perdomo-Padilla, 333 F.3d at 972 (filing an
application for naturalization in which an oath of allegiance is signed does not
make the applicant a United States national).
M r. Abiodun next claims that the District Director’s denial of his
application for naturalization deprived him of his right to procedural due process
and certain statutory rights. If we otherwise had jurisdiction to hear this claim,
perhaps § 1252(a)(2)(D) would preserve our jurisdiction despite M r. Abiodun’s
conviction for an aggravated felony and the mandate of §1252(a)(2)(C). But
regardless of this conviction, we cannot review such a challenge to naturalization
proceedings when we are conducting a review of a removal order. W hat
§ 1252(b)(5) permits to be considered on review of removal orders is only a claim
that the petitioner is a national of the United States, not a claim that the
petitioner’s application for naturalization was wrongly denied. Claims of
unlawful denial must be brought before the United States district court for the
district in which the petitioner resides. See 8 U.S.C. § 1421(c). Some discussion
of the process of applying for naturalization will be helpful in explaining why this
is the case.
Under 8 U.S.C. § 1421(a), “[t]he sole authority to naturalize persons as
citizens of the U nited States is conferred upon the Attorney General.” An
application for naturalization is therefore filed with the Attorney General. Id.
§ 1445(a) (“An applicant for naturalization shall make and file with the Attorney
-12-
General a sworn application . . . .”). In turn, the Attorney General designates
employees “to conduct examinations upon applications for naturalization,” Id.
§ 1446(b). The employee “shall make a determination as to whether the
application should be granted or denied.” Id. § 1446(d). If the employee fails to
make a determination within 120 days after the examination, “the applicant may
apply to the United States district court for the district in which the applicant
resides for a hearing on the matter. Such court has jurisdiction over the matter
and may either determine the matter or remand the matter, w ith appropriate
instructions, to the [BCIS] to determine the matter.” Id. § 1447(b). If the
examiner denies the application, “the applicant may request a hearing before an
immigration officer.” Id. § 1447(a). And if the application is denied after this
hearing, review is again in the district court. See id. § 1421(c). This is a de novo
review in which the district court makes its own findings of fact and conclusions
of law, and conducts a hearing upon the applicant’s request. See id.
These provisions make it clear that the United States district courts have
sole jurisdiction over the denial of applications for naturalization. Thus, when
M r. Abiodun contended during his removal proceedings that his application for
naturalization was not timely considered, the IJ correctly responded, “I don’t have
any jurisdiction to review that.” R. at 233. If the District Director erred in
denying M r. Abiodun’s application for naturalization, or if, as M r. Abiodun
contends, the application was not acted on quickly enough after the examination,
-13-
his remedy was in district court. See Nagahi v. United States, 219 F.3d 1166,
1168-69 (10th Cir. 2000) (“As part of the Immigration and Naturalization Act
(INA), Congress specifically granted jurisdictional authority to the federal district
courts to review the denial of an application for naturalization.”). In sum, review
of a decision denying naturalization is outside the scope of removal proceedings,
and in this case we cannot consider M r. Abiodun’s challenges to the rejection of
his naturalization application. See Tsegay v. Ashcroft, 386 F.3d 1347, 1353 (10th
Cir. 2004) (“As a court of limited subject matter jurisdiction, we review
administrative agency decisions only as provided by acts of Congress.”).
M r. Abiodun also raises tw o claims relating to his state conviction. First,
he asserts that his conviction records have “been falsified,” Pet’r Br. at 16, and
that the IJ’s reliance on these falsified records violates his due-process rights.
But there is no factual support in the record for this assertion. Second, he asserts
that his conviction “was secured by evidence that did not support the verdict.”
Pet’r Br. at 12. But “a petitioner cannot collaterally attack the legitimacy of his
state criminal convictions in the deportation proceedings.” Trench v. INS, 783
F.2d 181, 183 (10th Cir. 1986); see also Olivera-Garcia v. INS, 328 F.3d 1083,
1086 (9th Cir. 2003) (criminal conviction cannot be reviewed in immigration
proceeding).
M r. Abiodun next contends that his due-process rights were violated by the
issuance of a detainer soon after his state-court conviction, and by his arrest and
-14-
detention during the removal proceedings, because (1) his application for
naturalization was still pending and (2) he had not exhausted his right to appeal
his sentence. Perhaps his claims that he was subjected to an unlawful detainer
and unlawful detention w ould be “constitutional claims or questions of law”
reviewable under 8 U.S.C. § 1252(a)(2)(D), but he fails to explain how any such
illegality affected his removal proceedings. For example, he does not claim that
his detention prevented him from obtaining favorable evidence for the
proceedings. As a result, a determination by this court that he was unlaw fully
detained or subjected to an unlaw ful arrest or detainer would not avail him in this
case. 2 See INS v. Lopez-M endoza, 468 U.S. 1032, 1040 (1984) (“the mere fact of
an illegal arrest has no bearing on a subsequent deportation proceeding” (internal
quotation marks and brackets omitted)); Ballesteros v. Ashcroft, 452 F.3d 1153,
1160 (“No remedy for the alleged constitutional violations [including a claimed
illegal arrest] would affect the BIA’s final order of removal.”). We therefore
need not review these claims. See Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir.
2001) (issue is moot when no relief can be granted).
2
This is not to say that he could not seek relief if he were detained
unlaw fully. In fact, according to M r. Abiodun, on February 25, 2005, he filed in
the United States District Court for the District of Colorado an application for
habeas relief under 28 U.S.C. § 2241, seeking release from federal custody. That
application is not part of the record, though the record does contain an order to
show cause dated M arch 30, 2005, requiring the INS to respond to the application
by April 29. The record does not reflect the disposition of the § 2241
application.
-15-
Finally, M r. Abiodun contests the IJ’s conclusion that he had abandoned his
asylum application. The asylum-application form was given to M r. Abiodun at
the removal hearing on February 1, 2005. He w as instructed to fill out the form
and return it. At a hearing on February 15, 2005, he stated that he had filled out
the form. But at the next hearing, the purpose of which was to rule on his motion
to terminate the proceedings because his state conviction was not final, he
informed the IJ that he had refused to sign the form because, he contended, he
was not removable. The IJ asked M r. Abiodun whether he wished to pursue
asylum if the motion to terminate the removal proceedings was denied. W hen M r.
Abiodun did not provide a responsive answer, the IJ said that he would “consider
that you’ve withdrawn your asylum application since you’ve refused to sign it.
And if I rule against you on [the motion to terminate], then I’ll issue an order [of]
removal. If I rule in your favor, then I’ll terminate your case.” R. at 246. In an
order dated M arch 22, 2005, the IJ denied the motion to terminate the removal
proceedings, explaining that M r. Abiodun’s conviction was final because his
direct appeal had been decided and the Colorado Supreme Court had denied his
petition for a writ of certiorari. Rather than issuing an order of removal,
however, the IJ gave M r. Abiodun another chance “to present his asylum case.”
Id. at 345. At a hearing on M ay 4, 2005, M r. Abiodun again refused to sign his
asylum-application form or testify regarding it. The IJ then ordered M r. Abiodun
removed from the country, deeming his asylum application to have been
-16-
abandoned. In his appeal to the BIA, M r. Abiodun again asserted that the asylum
hearing was premature, because his conviction was not final. Although the B IA
did not specifically address this asylum issue, it did conclude that M r. Abiodun’s
conviction was final.
M r. Abiodun’s challenge to the ruling that he abandoned his asylum
application raises no “constitutional claim[] or question[] of law.”
§ 1252(a)(2)(D). Therefore § 1252(a)(2)(C) deprives us of jurisdiction to review
this claim.
III. C ON CLU SIO N
W e A FFIRM the B IA’s dismissal of M r. Abiodun’s appeal from the IJ’s
order of removal and its denial of his motion to reopen. W e DENY the
government’s motion to strike.
-17-
S-Abiodun v. Gonzales
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-08-30
Citations: 461 F.3d 1210
Copy Citations