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Miranda v. Sessions

United States Court of Appeals, First Circuit

April 5, 2017

FRANK EDNEY MONTEIRO MIRANDA, Petitioner,
v.
JEFFERSON B. SESSIONS, III, [*] Respondent.

         PETITION 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.

          Jesse 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, for respondent.

          Before Lynch, Circuit Judge, Souter, [**] Associate Justice, and Baldock, [***] Circuit Judge.

          LYNCH, CIRCUIT JUDGE.

         Frank 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.

         This is 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).

         I.

         The 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 in Angola.

         On 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.

         Miranda's 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 of citizenship.

         On May 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).

         Notwithstanding 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.

         On 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.

         IJ Day 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 ...


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