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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