FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
William P. Joyce, with whom Joyce & Associates P.C. was
on brief, for petitioner.
M. Bless, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with
whom Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, and Anthony C. Payne, Assistant
Director, Office of Immigration Litigation, were on brief,
Lynch, Circuit Judge, Souter, [**] Associate Justice, and Baldock,
Edney Monteiro Miranda, who was once deemed to be a U.S.
citizen by an immigration judge ("IJ") in 2007 and
escaped the possibility of removal, now petitions for that
determination to be considered binding in 2016 removal
proceedings before a second IJ, who ordered Miranda removed
based on his conviction for a drug felony. The Board of
Immigration Appeals ("BIA") dismissed Miranda's
appeal, and he petitions for review. Miranda argues that the
doctrine of res judicata should have barred the second IJ and
the BIA from readjudicating the issue of his citizenship,
finding that he is not a U.S. citizen, and ordering him
removed. He asks that we vacate his removal order.
a novel issue for this circuit. We hold that the
applicability of res judicata becomes immaterial before this
court because of the jurisdictional limitations imposed by
the Immigration and Nationality Act ("INA"), Pub.
L. No. 89-236, 79 Stat. 911 (codified as amended in scattered
sections of 8 U.S.C.). Under the INA, this court must
undertake a plenary review of the question of Miranda's
citizenship in order to determine whether we have
jurisdiction to hear his petition for review. See 8
U.S.C. §§ 1252(a)(2)(C) (barring jurisdiction
"to review any final order of removal against an alien
who is removable" for the commission of certain criminal
offenses), 1252(b)(5)(A) (requiring determination of
petitioner's nationality claim when there is no dispute
of fact). We conclude that Miranda has failed to meet his
burden of proving that he is a U.S. citizen. Accordingly, the
jurisdictional bar in § 1252(a)(2)(C) applies and
precludes judicial review of the final order of removal
against him. We dismiss his petition. In doing so, we agree
with the Tenth Circuit's decision in Shepherd v.
Holder, 678 F.3d 1171 (10th Cir. 2012).
facts of this case are undisputed. Miranda was born out of
wedlock in Angola on June 5, 1978 to a mother and father,
both of Cape Verde citizenship. On August 31, 1978,
Miranda's mother and father appeared as "informing
parents" at the Embassy of Cape Verde in Angola and
signed Miranda's "record of birth" before two
witnesses. Miranda has two sisters, and both were also born
December 9, 1988, Miranda, his mother, and his two sisters
were admitted to the United States as lawful permanent
residents. Shortly thereafter, his father also relocated to
the United States. On December 31, 1988, Miranda's mother
and father were married in Massachusetts.
mother became a naturalized U.S. citizen on January 6, 1995.
At that time, Miranda was sixteen years old. Miranda and his
two sisters filed N-600 applications for certificates of
citizenship. Miranda's sisters attended their N-600
interviews and received their certificates of citizenship,
based on U.S. citizenship derived through their mother's
naturalization. Miranda was unable to attend his N-600
interview, scheduled for May 30, 1996, because he was in the
custody of the Massachusetts Department of Youth Services at
the time. As a result, Miranda never received a certificate
10, 2007, the Department of Homeland Security
("DHS") initiated removal proceedings against
Miranda after he pled guilty to failing to register as a sex
offender, in violation of Massachusetts law. Miranda moved to
terminate the proceedings on the ground that he was a U.S.
citizen because he had allegedly derived citizenship through
his mother when she was naturalized in 1995. The IJ, Charles
Adkins-Blanch, continued the proceedings in order to allow
Miranda to pursue an N-600 application for a certificate of
citizenship, but the United States Citizenship and
Immigration Services ("USCIS") denied Miranda's
application. The USCIS did so after examining, inter alia,
Miranda's original birth record (which included his
father's signature) and concluding that Miranda's
paternity had been legitimated. Under applicable law in 1995,
Miranda could have derived citizenship through his
mother's naturalization only if his "paternity . . .
ha[d] not been established by legitimation." 8 U.S.C.
§ 1432(a)(3) (1996).
the USCIS's denial, IJ Adkins-Blanch convened a hearing
to determine whether Miranda was a U.S. citizen. At the
hearing, Miranda's mother testified that Miranda's
father was not involved in her children's lives and that
she continued to be their sole economic provider even after
she married their father in 1988. Miranda also submitted as
evidence letters from public schools about his mother's
responsibility for his education, a letter that his counsel
had sent to his mother, and his sisters' certificates of
citizenship. At the conclusion of the hearing, IJ
Adkins-Blanch issued an oral decision granting Miranda's
motion to terminate removal proceedings on the ground that he
was a U.S. citizen. IJ Adkins-Blanch found that Miranda
"ha[d] presented credible evidence that he derived
citizenship through his mother as a child born out of wedlock
whose paternity ha[d] not been established by
legitimation." DHS never appealed this decision.
February 12, 2012, Miranda was convicted for distributing
cocaine base, in violation of 21 U.S.C. § 841(a)(1).
After Miranda's release from prison, DHS initiated new
removal proceedings against him. The Notice to Appear dated
September 15, 2015 charged Miranda as removable under 8
U.S.C. §§ 1227(a)(2)(A)(ii), (A)(iii), and (B)(i).
See 8 U.S.C. §§ 1227(a)(2)(A)(ii)
(removability for multiple criminal convictions),
1227(a)(2)(A)(iii) (removability for aggravated felony),
1227(a)(2)(B)(i) (removability for crime relating to
controlled substance). Miranda once again filed a motion to
terminate removal proceedings, citing IJ Adkins-Blanch's
determination that he was a U.S. citizen and arguing that res
judicata barred the second IJ, Steven Day, from
readjudicating Miranda's citizenship.
denied Miranda's motion, refusing to apply res judicata
in the context of an administrative proceeding where doing so
would "frustrate Congressional intent." While IJ
Day acknowledged that most circuits that have considered the
applicability of res judicata in removal proceedings have
held that the doctrine does apply, he also noted that the
doctrine is more "flexible" in administrative
proceedings than in judicial proceedings. "[V]arious
courts have affirmed BIA decisions that decline to apply the
doctrine when doing so would frustrate Congress's
interest in removing aliens convicted of certain crimes,
" IJ Day observed. IJ Day then concluded that Miranda
was not a U.S. citizen because he had been legitimated by his
father under both Angolan and Massachusetts law and thus