IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2007
No. 06-50710 Charles R. Fulbruge III
Clerk
Arturo RIOS-VALENZUELA
Plaintiff-Appellant
v.
DEPARTMENT OF HOMELAND SECURITY et al.
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CV-389
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Arturo Rios-Valenzuela appeals from a district court dismissal of his suit
seeking a declaratory judgment that he is a citizen of the United States. We
affirm.
I
Rios was born in 1956 in Mexico. He claims that his mother was
unmarried to his father, and an American citizen at the time, hence she needed
only to have been present in the United States for one continuous year for him
No. 06-50710
to be a citizen.1 The Government contends that Rios’s parents were married
Mexican citizens when he was born.
In 1975, the INS granted an application for a green card for Rios filed by
his mother, and he moved to the United States. In 1989, the Government
deported Rios to Mexico because of his conviction for a drug crime.
In October 2003, Rios reentered the United States by claiming to be an
American citizen. On January 20, 2004, the Government issued a Notice to
Appear, placing Rios in removal proceedings. The next day, the Government
charged him with criminal illegal reentry. Rios claims that it was only during
this period that he realized his claim to citizenship; consequently, on May 12,
while the removal proceeding was pending, Rios filed a Form N-600, Application
for Citizenship, with United States Citizenship and Immigration Services
(USCIS). On August 13, the District Director of USCIS in El Paso denied the
application. Rios appealed to the Administrative Appeals Unit (AAU). On
September 17, the Government dropped the criminal charges.
On January 14, 2005, while the appeal from the first denial of the N-600
was pending, Rios filed another N-600 with the same District Director. The
immigration judge presiding over the removal proceedings held a hearing on
March 15, 2005. Rios defended against removal in the proceedings by
submitting evidence of his citizenship. The immigration judge terminated the
removal proceedings without prejudice.
On April 1, the AAU rejected Rios’s appeal. On August 16, a Service
Officer at the USCIS El Paso District processing the second application
interviewed Rios and explained the need for evidence of his mother’s presence
in the United States, giving him twelve weeks to provide such evidence.
1
See 8 U.S.C. § 1409(c).
2
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On October 21, Rios filed the instant case in district court, seeking a
declaratory judgment that he is a citizen, having exhausted his administration
remedies by filing the first N-600 and appealing its denial. Rios claimed he was
in “legal limbo” because he was allowed to remain in the country but refused
proof of citizenship. Later, on November 16, the District Director denied Rios’s
second application as abandoned because Rios had produced no evidence to the
USCIS.
In district court, the Government moved to dismiss for lack of jurisdiction.
The court granted the motion, and Rios appealed.
Subsequent to oral argument, the Government issued a new Notice to
Appear, re-instituting removal proceedings against Rios. According to Rios, he
has asserted his citizenship as a defense to removal and filed a Motion to
Terminate or, in the alterative, a Motion to Administratively Close Removal
Proceedings. A final merits hearing has not yet been held.
II
As we are reviewing a dismissal for lack of subject matter jurisdiction, our
review is de novo.2
A
A person generally may pursue a citizenship claim in two ways. First, if
the person is in removal proceedings he can claim citizenship as a defense. If the
immigration judge rejects the defense and orders removal, the person can, after
properly exhausting administrative channels, petition this court under 8 U.S.C.
§ 1252(b) for review of the final order of removal, including for review of the
citizenship claim. However, if the immigration judge accepts the citizenship
defense, she terminates the removal proceedings without deciding citizenship.3
2
St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1252 (5th Cir. 1998).
3
See Ng Fung Ho v. White, 259 U.S. 276, 284 (1922); Chau v. I.N.S., 247 F.3d 1026,
1027-28 (9th Cir. 2001).
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Second, a person can affirmatively seek proof of citizenship by filing with
USCIS a Form N-600, Application for Citizenship, under 8 U.S.C. § 1452(a). If
the application is denied, he can appeal to the AAU under 8 C.F.R. §§ 341.6,
103.3(a). If the AAU affirms,4 the person can seek a judicial declaration of
citizenship under 8 U.S.C. § 1503(a), which provides:
If any person who is within the United States claims a right or
privilege as a national of the United States and is denied such right
or privilege by any department or independent agency, or official
thereof, upon the ground that he is not a national of the United
States, such person may institute an action under the provisions of
section 2201 of Title 28 against the head of such department or
independent agency for a judgment declaring him to be a national
of the United States, except that no such action may be instituted
in any case if the issue of such person’s status as a national of the
United States (1) arose by reason of, or in connection with any
removal proceeding under the provisions of this chapter or any other
act, or (2) is in issue in any such removal proceeding.
B
When Rios initially appealed, the issue before the court was whether 8
U.S.C. § 1503(a)(1) deprived the district court of jurisdiction. However, the
Government has initiated another round of removal proceedings, raising the
issue of whether § 1503(a)(2) bars jurisdiction over Rios’s claim. The
Government argues in a letter brief filed at this court’s request that, if Rios
raises his citizenship as a defense in the new removal proceedings, “then the
provisions of 8 U.S.C. § 1503(a)(2) clearly deprives the district court of
jurisdiction over Plaintiff’s claims.” In his letter brief, Rios indicates that he has
raised citizenship as a defense.
Section 1503(a)(2) provides that “no [declaratory judgment] action may be
instituted in any case if the issue of such person’s status as a national of the
United States . . . is in issue in any such removal proceeding.” Rios contends
4
A person must exhaust the agency procedures.
4
No. 06-50710
that the exception does not deprive the courts of jurisdiction because there were
no removal proceedings pending when he filed his declaratory judgment action.
We agree. The statute states that a § 1503(a) claim may not be instituted when
the claimant’s citizenship is in issue in a removal proceeding. The exception
does not say that a purported citizen may not maintain or continue an already
filed declaratory judgment action when the Government subsequently begins
removal proceedings and citizenship there comes into issue. Rather, we read
“institute” in this context to mean “[t]o initiate; begin.”5 The purported citizen’s
citizenship cannot, logically, be “in issue in [a] removal proceeding” unless there
is a removal proceeding pending. In other words, a purported citizen may not
initiate or begin a declaratory judgment action to establish his citizenship if it
is already being litigated in a removal proceeding. This reading of the exception
does not run afoul of the concern that persons will use § 1503(a) to circumvent
the administrative removal process; if there are no removal proceedings pending
when a declaratory judgment action is brought, there is nothing for the claimant
to circumvent.
C
We turn our attention to § 1503(a)(1). The district court noted that Rios
did not file his N-600 application before the commencement of removal, “a
situation where this court would have jurisdiction.” It noted further, “[a]s a
challenge to his removal, during those removal proceedings [Rios] claimed that
he was a United States Citizen.” Thus, the court concluded,
it is beyond dispute that questions as to [Rios’s] citizenship arose
after the initiation of removal proceeding . . . and [Rios] cannot
obviate Congressional intent limiting the manner in which claims
of nationality may be raised following the initiation of removal
proceedings pursuant to § 1252(b)(5) by also pursuing an alternative
5
The American Heritage Dictionary defines institute as a verb to mean “[t]o establish,
organize, and set in operation”; “[t]o initiate, begin”; and, “[t]o establish or invest in an office
or position.”
5
No. 06-50710
claim of citizenship, where his claim to citizenship also arose by
reason of or in connection with his removal proceedings.
Consequently, the court dismissed for lack of jurisdiction because “the issue” of
Rios’s citizenship “arose by reason of, or in connection with” his removal
proceeding.
Rios argues that the district court’s interpretation of § 1503(a)(1) as
barring jurisdiction over any claim based on the denial of citizenship simply
because the claim was made after the initiation of removal proceedings expands
the statute beyond its plain meaning. The Government agrees that timing of the
application alone does not control. What matters, the Government argues, is
that the issue of citizenship arose in connection with Rios’s removal proceeding.
The text of the statute supports the Government; “[t]he exception applies
to claims of nationality raised in removal proceedings.”6 It is the context of how
the particular issue of citizenship arose rather than the mere timing of events
that determines the applicability of § 1503(a)(1). The exception precludes
jurisdiction over Rios’s citizenship claim because his claim “arose by reason of,
or in connection with” his removal proceeding: the issue of Rios’s citizenship that
forms the basis of his claim here originates, at the least, in connection with the
removal proceedings.
The N-600 application process is, as Rios argues, a proceeding separate
from the removal proceedings. But § 1503(a)(1) does not apply depending on
whether the proceedings are separate; rather, it applies when the particular
citizenship issue “arose” in the removal proceeding. That is, the exception
focuses on the proceeding in which the particular claim to citizenship originates,
not the proceeding in which it is being pursued.
6
Said v. Eddy, 87 F. Supp. 2d 937, 941 (D. Alaska 2000).
6
No. 06-50710
Nor does it matter that the removal proceedings had ended when Rios
brought his claim for declaratory judgment. As the district court in Alaska
explained,
The text of the statute does not support such a conclusion. If the
exceptions apply only while a removal proceeding is still pending,
then the first exception would be superfluous since the second
exception covers instances where the removal proceeding is still
pending. The past tense ‘arose’ used in the first exception also
indicates that this provision applies to concluded removal
proceedings.7
We are persuaded by and adopt the court’s analysis.8
Rios argues that this construction of the exception means that jurisdiction
under § 1503(a) is always precluded when citizenship first arises in a removal
proceeding, but we do not read the exception as forever hanging an albatross
around the neck of those who first raise citizenship as a defense in a removal
proceeding.9 So long as a citizenship claim finds its genesis outside of the
context of removal proceedings, the exception is no bar to jurisdiction;10 thus, for
7
Id. at 941.
8
But see North v. Rooney, Civil No. 03-1811, 2003 WL 21432590, at *4 (D.N.J. June 18,
2003) (“With no removal proceedings presently ongoing at this time, this action seeking judicial
review by declaratory judgment does not likely ‘arise out of, or in connection with’ a removal
proceeding.”). We are not persuaded by North on three accounts. First, the district court
changed the tense of the verb in the exception from “arose” to “arise.” If the exception applied
when a citizenship issue “arise[s]” in a removal proceeding, Rios-Valenzuela’s argument might
have some purchase. Second, the North court immediately qualified its analysis of the
exception: “Moreover, the issue of plaintiff's citizenship actually arose well before the
commencement of the 1999 removal proceedings as demonstrated by plaintiff's argument that
his citizenship status was fully litigated and determined in his favor by an Immigration Judge
ruling in 1989 . . . .” Id. (emphasis added). Finally, the Said court’s analysis is more consistent
with the statute’s structure and text.
9
See Samuel Taylor Coleridge, The Rime of the Ancient Mariner.
10
See, e.g., Benjamin v. Bureau of Customs, 401 F. Supp. 2d 184, 185-86 (D. Conn.
2005) (explaining that, even though a petition under § 1252(b) was time barred, the petitioner
could still file an N-600 application and receive judicial review if the application were denied);
Said, 87 F. Supp. 2d at 943 (explaining that, even though petitioner could not at that time
7
No. 06-50710
example, once removal proceedings have run their full course and terminated,
any future citizenship claim would not arise in those removal proceedings.11 The
Government concedes this, explaining that “[i]f Rios-Valenzuela were to again
apply for citizenship at some future time, when no removal proceedings have
been initiated, and the claim is denied, then, according to Said, he would have
a right to seek declaratory judgment.”12 This narrower reading is consistent
with the concern that the federal courts not be used as tools to frustrate and
interfere with removal proceedings.
This straightforward reading of the statute appears to leave Rios in limbo,
victorious in the removal action against him, yet unable to obtain judicial review
of his claim of citizenship through review of the executive’s denial of his N-600
application. The inability to obtain judicial review, Rios urges, implicates his
due process rights to judicial review of his citizenship claim. He argues,
therefore, that this court should look beyond the straightforward reading of the
statute to the purpose of § 1503(a), which is to channel litigation over the issue
of citizenship into removal proceedings, where relevant, so as to prevent the
courts from interfering with those proceedings through declaratory judgment
actions attending N-600 applications. Under this approach, the statute would
foreclose judicial review of N-600 applications where removal proceedings are
pending or were terminated unfavorably to the alien.13
pursue a declaratory judgment action under § 1503(a), the petitioner could obtain judicial
review of when at “some future time” the Government denied her a “right or privilege”
attending citizenship).
11
Of course, if the person claiming to be a citizen loses in the removal proceedings, the
appropriate means for judicial review of his citizenship claim is § 1252(b).
12
Government-Appellee’s Brief at 14 (referring to Said, 87 F. Supp. 2d at 943)
(emphasis added).
13
Again, where an alien fails in defending against removal on the basis of citizenship,
he may obtain judicial review of his citizenship claim through § 1252.
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No. 06-50710
This argument does not persuade. First, the doctrine of constitutional
avoidance is not without limits. The doctrine does not permit courts to impose
upon a statute an interpretation that does violence to its plain language: “It is
a tool for choosing between competing plausible interpretations of a statutory
text, resting on the reasonable presumption that Congress did not intend the
alternative which raises serious constitutional doubts. The canon is thus a
means of giving effect to congressional intent, not of subverting it.”14 The
interpretation of § 1503(a) that Rios urges cannot be found in the text of the
statute itself; it is discoverable only in the purported purposes of Congress. But
for us to apply the doctrine of constitutional avoidance, we must be able to foot
the interpretation in the statute’s text. The doctrine of avoiding interpretations
of statutes that lead to absurd results is similarly limited.15
Second, the due process jurisprudence upon which Rios relies is not
squarely on point. Ng Fung Ho v. White and its progeny consider whether a
person claiming to be a citizen in a deportation proceeding has a due process
right to a judicial determination of his citizenship before he is deported.16 The
Supreme Court in Ng Fung Ho held that such a person does, but indicated that
it is deportation that works the liberty deprivation that triggers due process, not
the claim to citizenship standing alone:
Jurisdiction in the executive to order deportation exists only if the
person arrested is an alien. The claim of citizenship is thus a denial
14
Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citations omitted and emphasis
added).
15
See Haggar Co. v. Helvering, 308 U.S. 389, 393 (1940) (“A literal reading of [statutes]
which would lead to absurd results is to be avoided when they can be given a reasonable
application consistent with their words and with the legislative purpose.” (emphasis added)).
While the statutory scheme inconveniences Rios by forcing him to jump through extra hoops,
that does not translate into an absurd result.
16
259 U.S. 276 (1922); see also Agosto v. I.N.S., 436 U.S. 748 (1978); Kessler v. Strecker,
307 U.S. 22 (1939).
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No. 06-50710
of an essential jurisdictional fact. . . . To deport one who so claims
to be a citizen obviously deprives him of liberty . . . . It may result
also in loss of both property and life, or of all that makes life worth
living. Against the danger of such deprivation without the sanction
afforded by judicial proceedings, the Fifth Amendment affords
protection in its guarantee of due process of law.17
We do not read either Strecker or Agosto as expanding White to include a due
process right to judicial review of a stand alone claim to citizenship. In both
Strecker and Agosto, the Government was attempting to deport the petitioner.
In isolation, Agosto’s description of White’s holding as being that “a resident of
this country has a right to de novo judicial determination of a claim to United
States citizenship”18 supports Rios’s position. But this description is not faithful
to Ng Fung Ho, which the Court had just quoted, and it conflicts with the Court’s
description of its case law that immediately precedes that comment: “Congress
was aware of our past decisions holding that Constitution requires that there be
some provision for de novo judicial determination of claims of American
citizenship in deportation proceedings.”19
Rios has not suffered a deprivation similar to deportation. Nor has he
pointed to any other deprivations of “life, liberty, or property” before this court
upon which to anchor his due process claim. The only basis upon which Rios
asserts a due process right is that the Government has not recognized his
citizenship; thus, to credit Rios’s argument is to find that a due process right
inheres naturally in a claim to citizenship itself, which in some circumstances
allows the courts to consider – and ultimately recognize – a claim to citizenship
outside of the procedures established by Congress.
17
259 U.S. at 284-85.
18
436 U.S. at 753.
19
Id.
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No. 06-50710
The argument is not without intuitive force; but we decline the invitation
to find such a right now. First, the case law does not clearly support such a
right. We have explained that “[t]hose persons not born in the United States
may only acquire citizenship by birth as provided by Acts of Congress,”20
although there appears to be disagreement within the Supreme Court on this
point.21 Section 1503(a)(1), albeit procedural and not substantive, is part of the
panoply of congressional acts that determines how those born outside the United
States – as Rios was – acquire citizenship. Second, we do not perceive Rios’s
plight as being as dire as he suggests – though it is admittedly less than ideal.
First, Rios might not prevail in the current removal proceedings; if he fails, he
will be able to raise his citizenship claim through § 1252(b). Second, Rios can
attempt to reopen his second N-600 application and prove his citizenship that
way; we express no view now on whether the reopened application would survive
§ 1503(a)(1)’s jurisdictional bar if pursued with appropriate attention to any
removal proceedings. Finally, by its plain terms and judicial interpretation, §
1503(a) does not limit the rights or privileges that trigger its applicability to N-
600 applications alone; however, because the parties have neither briefed nor
raised the issue, we express no view on how § 1503(a) fits within the full scheme
of immigration statutes apart from the narrow facts of this case. Rios does not
20
Nguyen v. I.N.S., 208 F.3d 528, 532 (5th Cir. 2000).
21
Compare Nguyen v. I.N.S., 533 U.S. 53, 71-73 (2001) (declining to address the issue
of whether courts are able to confer “citizenship on terms other than those specified by
Congress” or “assess the implications of statements in our earlier cases regarding the wide
deference afforded Congress in the exercise of its immigration and naturalization power”), with
id. at 73-74 (Scalia, J., concurring) (stating his view that courts have no power to confer
“citizenship on a basis other than that prescribed by Congress” but concluding from the
multiplicity of opinions in Miller v. Albright, 523 U.S. 420 (1998), and the instant case that a
majority of justices think otherwise), with id. at 96-97 (O’Connor, J., dissenting) (“The instant
case is not about the admission of aliens but instead concerns the logically prior question
whether an individual is a citizen in the first place. A predicate for application of the deference
commanded by Fiallo [v. Bell, 730 U.S. 787 (1977),] is that the individuals concerned be aliens.
But whether that predicate obtains is the very matter at issue in this case.”).
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No. 06-50710
have an easy avenue by which he might bring his citizenship claim before the
courts, but we do perceive avenues by which he might do so. Accordingly, we
will not disturb the statutory scheme established by Congress.
AFFIRMED.
12