Bitterman v. Ashcroft , 106 F. App'x 699 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 11 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARK WILLIAM BITTERMAN,
Petitioner,
v. No. 03-9600
(BIA No. A42-315-662)
JOHN ASHCROFT; TOM RIDGE, (Petition for Review)
DEPT. OF HOMELAND SECURITY;
BUREAU OF CUSTOM &
IMMIGRATION ENFORCEMENT,
Respondents.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, MURPHY , Circuit Judge, and CAUTHRON , **
Chief District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner seeks review of a decision of the Board of Immigration Appeals
ordering his removal as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii)
(“Any alien who is convicted of an aggravated felony at any time after admission
is deportable.”). Generally, judicial review of such orders is barred by 8 U.S.C.
§ 1252(a)(2)(C), 1
which abrogates our jurisdiction if the conditions for removal
under § 1227(a)(2)(A) are established. Courts ascertain their own jurisdiction,
however, and we must determine whether this statutory bar applies. Khalayleh v.
INS , 287 F.3d 978, 979 (10 th Cir. 2002). Under § 1252(a)(2)(C), the court retains
jurisdiction to decide whether the petitioner is (i) an alien (ii) deportable (iii) by
reason of a criminal offense listed in the statute. Tapia Garcia , 237 F.3d at 1220.
Petitioner challenges his status as an alien. Therefore, the court is conducting a
limited review of that jurisdictional fact to determine whether to dismiss the
petition for review under § 1252(a)(2)(C) for lack of jurisdiction. This inquiry
necessarily involves a consideration of petitioner’s substantive argument.
1
Section 1252(a)(2)(C) states: “Notwithstanding any other provision of law,
no court shall have jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a criminal offense covered
in . . . section 1227(a)(2)(A)(iii).” This statutory bar applies where, as here,
removal proceedings commenced after April 1, 1997. Tapia Garcia v. INS , 237
F.3d 1216, 1219 (10 th Cir. 2001).
-2-
Petitioner claims that he is entitled to U.S. citizenship under the Child
Citizenship Act (CCA), 8 U.S.C. §§ 1431 and 1433. For the reasons explained
below, we reject this claim on the merits, which, as we have indicated, requires us
to dismiss for lack of jurisdiction. See Khalayleh , 287 F.3d at 979. Petitioner has
also raised a number of constitutional issues in connection with his removal under
§ 1227(a)(2)(A), but this court recently made it clear that such issues fall within
the jurisdictional bar of § 1252(a)(2) as well. See Latu v. Ashcroft , No. 03-1215,
2004 WL 1551593, at *4-*5 (10 th Cir. July 12, 2004).
Petitioner was born in Canada in November 1982, and was later adopted by
an American mother and Canadian father. He entered the United States with his
parents when he was eight years old and has resided here with his mother ever
since. At nineteen, he was convicted of robbery, prompting commencement of
these removal proceedings. Petitioner has resisted his removal on the ground that,
by virtue of the CCA, he is a U.S. citizen and therefore categorically beyond the
reach of § 1227(a)(2)(A). This defense founders on chronology.
The CCA grants automatic citizenship to children born outside the country
if certain requirements are satisfied. Specifically, under the most recent version
of § 1431(a) at issue here, enacted as Pub. L. No. 106-395, Title I, § 101(a), 114
-3-
Stat. 1631 (October 30, 2000), a foreign born child automatically becomes a U.S.
citizen when all of the following conditions are fulfilled:
(1) At least one parent of the child [biological or adoptive] is a
citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United Sates in the legal and physical
custody of the citizen parent pursuant to a lawful admission for
permanent residence.
The problem for petitioner is that Congress specifically directed that this version
of the statute “shall take effect 120 days after the date of [its] enactment [October
30, 2000] and shall apply to individuals who satisfy the requirements . . . on such
effective date .” Pub. L. No. 106-395, Title I, § 104, 114 Stat. 1633 (emphasis
added). Petitioner turned eighteen after enactment but before the effective date
and, thus, did not satisfy the statutory age requirement at the requisite time.
Petitioner argues that he should have the benefit of the amended version of
the statute even though he did not meet one of its conditions by the time it came
into effect, because he would have qualified had the amendment become effective
at an earlier date. The many circuits that have considered such an argument have
all enforced the plain terms of the quoted Congressional directive and refused to
impose a contrary retrospective gloss for the benefit of over-age petitioners. See,
e.g. , Gomez-Diaz v. Ashcroft , 324 F.3d 913, 916 (7 th Cir. 2003); Drakes v.
Ashcroft , 323 F.3d 189, 191 (2d Cir. 2003); United States v. Arbelo , 288 F.3d
-4-
1262, 1263 (11 th Cir. 2002); Hughes v. Ashcroft , 255 F.3d 752, 759-60 (9 th Cir.
2001); Nehme v. INS , 252 F.3d 415, 430-33 (5 th Cir. 2001). We follow this
uniform application of the statute here.
Petitioner emphasizes that he did not turn eighteen until after enactment of
the statute and insists that this distinguishes his case for exceptional treatment.
But given Congress’ express specification of a later effective date for determining
whether individuals satisfy the statutory requirements, the fact that petitioner was
of qualifying age when the statute was enacted is of no legal significance. The
enactment date would be important if Congress had not given a clear direction
that the statute was to take effect at a different time, Gozlon-Perez v. United
States , 498 U.S. 395, 404 (1991), but it is just such a direction that petitioner is
seeking to circumvent here by shifting attention to the date of enactment. We
hold that petitioner is not entitled to automatic citizenship under § 1431.
Petitioner argues alternatively that he should be granted a certificate of
citizenship under § 1433, which allows a citizen parent to apply for naturalization
of a foreign born child who has not acquired automatic citizenship under § 1431.
Petitioner acknowledges that his age also disqualifies him for this relief, which is
available only for children under eighteen, 8 U.S.C. § 1433(a)(3), but he insists
the government should be estopped from asserting this disqualification. He
alleges that upon their entry into the country in 1991, his mother inquired about
-5-
applying for his naturalization but was lulled into forgoing the opportunity by the
INS, which erroneously told her that he would not be eligible for citizenship until
he turned eighteen.
This court has recognized that equitable estoppel may be asserted against
the government in immigration cases, but cautioned that relevant Supreme Court
jurisprudence “raises an extremely high bar” to such claims. Kowalczyk v. INS ,
245 F.3d 1143, 1149-50 (10 th Cir. 2001). Thus, we have held that “affirmative
misconduct” by the government must be shown. Id. Petitioner has not done this.
His allegations have no evidentiary foundation; he has not shown anything. And,
in any event, he suggests only that an INS employee incorrectly responded to an
inquiry. The Supreme Court jurisprudence alluded to in Kowalczyk teaches that
mistaken advice per se falls far short of the kind of misconduct that might estop
the government, particularly when, as here, the advice relates to law or regulatory
information clearly otherwise available. See Penny v. Giuffrida , 897 F.2d 1543,
1546-47 (10 th Cir. 1990) (summarizing illustrative cases, including Heckler v.
Cmty. Health Servs. of Crawford County, Inc. , 467 U.S. 51, 63 & n.17 (1984);
Schweiker v. Hansen , 450 U.S. 785, 788-90 (1981); Montana v. Kennedy , 366
U.S. 308, 314-15 (1961); Fed. Crop Ins. Corp. v. Merrill , 332 U.S. 380, 385
(1947)). Petitioner’s conclusory effort to invoke equitable estoppel does not
come close to clearing the “extremely high bar” set by our case law.
-6-
None of the bases petitioner relies upon for U.S. citizenship has merit.
Because he is therefore an alien subject to the provisions of § 1227(a)(2)(A), we
lack jurisdiction to review his removal pursuant to that statutory authority. This
jurisdictional limitation extends as well to the constitutional objections he has
attempted to include in his petition for review.
The petition for review is DISMISSED.
Entered for the Court
Robin J. Cauthron
Chief District Judge
-7-