Findley v. Barr ( 2020 )


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  •     17-2530
    Findley v. Barr
    BIA
    A206 223 376
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
    ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
    APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
    IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 14th day of October, two thousand twenty.
    PRESENT:
    GUIDO CALABRESI,
    ROBERT A. KATZMANN,
    SUSAN L. CARNEY,
    Circuit Judges.
    _____________________________________
    ANDREW KEITH FINDLEY, AKA GILLY
    FINDLEY, AKA ROUNDHEAD FINDLEY
    Petitioner,
    v.                                                     17-2530
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    _____________________________________
    For Petitioner:                           RAJEEV MUTTREJA (Conor Reardon, on the brief)
    Jones Day, New York, NY.
    For Respondent:                           YANAL H. YOUSEF Office of Immigration Litigation,
    United States Department of Justice, Washington, DC.
    UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
    Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
    petition for review is GRANTED and the petition is TRANSFERRED to the district court for
    further factfinding.
    Petitioner Andrew Keith Findley, an alleged native and citizen of Jamaica, petitions for
    review of a July 21, 2017 decision of the BIA denying his motion to reopen his removal
    proceeding. In re Andrew Keith Findley, No. A 206 223 376 (B.I.A. Jul. 21, 2017). We assume the
    parties’ familiarity with the underlying facts and procedural history in this case.
    We ordinarily review the BIA’s denial of a motion to reopen for abuse of discretion, Ali v.
    Gonzales, 
    448 F.3d 515
    , 517 (2d Cir. 2006), but when there is an issue of nationality, we review
    the claim de novo, 1 see Jaen v. Sessions, 
    899 F.3d 182
    , 185-86 (2d Cir. 2018); Gil v. Sessions, 
    851 F.3d 184
    , 186 (2d Cir. 2017). The Immigration and Nationality Act (“INA”) addresses judicial
    review of nationality claims. “If the petitioner claims to be a national of the United States and the
    court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about
    the petitioner’s nationality is presented, the court shall decide the nationality claim.” 8 U.S.C.
    § 1252(b)(5)(A). If, however, there is a “genuine issue of material fact” about the petitioner’s
    nationality, “the court shall transfer the proceeding to the district court . . . for a new hearing on
    the nationality claim and a decision on that claim.”
    Id. § 1252(b)(5)(B). In
    determining whether a
    petitioner has raised a material factual dispute, we apply “the same principles employed on
    a [Federal Rule of Civil Procedure] 56 motion for summary judgment.” 
    Duarte-Ceri, 630 F.3d at 1
              Generally, where, as here, an alien has been ordered removed for a controlled substance
    offense, a jurisdictional bar precludes our review of any final order of removal. 8 U.S.C.
    § 1252(a)(2)(C). However, we always retain jurisdiction to review constitutional claims and
    questions of law, including issues surrounding nationality and citizenship. See Duarte-Ceri v.
    Holder, 
    630 F.3d 83
    , 87 (2d Cir. 2010) (“An assertion of U.S. citizenship is [] a denial of an
    essential jurisdictional fact in a deportation proceeding.”) (internal quotation marks omitted);
    Ashton v. Gonzales, 
    431 F.3d 95
    , 97 (2d Cir. 2005) (“If [petitioner] is a United States citizen, then
    § 1252(a)(2)(C) cannot bar his petition.”).
    2
    91; see also Agosto v. INS, 
    436 U.S. 748
    , 754 (1978) (“We may reasonably assume that, in using
    the language from Rule 56 as the standard for granting de novo district court hearings on
    citizenship claims, Congress intended the language to be interpreted similarly to that in Rule 56.”).
    We easily conclude that Findley has raised a genuine issue of material fact concerning his
    nationality. The agency’s determination of alienage was based in substantial part on evidence
    contained in a Form I-213. A Form I-213 is an official record that an immigration officer prepares
    when processing an individual suspected of being an alien unlawfully present in the United States.
    See, e.g., Bauge v. INS, 
    7 F.3d 1540
    , 1543 n.2 (10th Cir. 1993). We have held that an I-213 is
    “presumptively reliable,” because it “contain[s] guarantees of reliability and trustworthiness that
    are substantially equivalent” to those required of business records admissible under the Federal
    Rules of Evidence. Felzcerek v. INS, 
    75 F.3d 112
    , 116–17 (2d Cir. 1996). Here, the Form I-213
    contains information from interviews with three of Findley’s family members (two half-brothers
    and a sister-in-law), who stated that Findley was born in Jamaica. 2
    We, however, agree with Findley that a March 21, 2017 email from the Jamaican embassy
    to his counsel raises a genuine issue of material fact concerning Findley’s nationality. The email
    indicates that Findley “was not identified as a national of Jamaica, during [a] verification interview
    conducted by [the] embassy of Jamaica” and that the embassy would not be issuing Findley travel
    documents “at [that] time.” Cert. Admin. R. 48. Even if the email does not represent a conclusive
    determination as to Findley’s nationality, it at a minimum demonstrates that the Jamaican embassy
    could not confirm Findley’s nationality and raises questions about the respondent’s determination
    2
    The three relatives whose statements appeared in the Form I-213 are related to Findley
    through his father, and their statements do not indicate how they knew where Findley was born.
    Two of the three relatives interviewed did not know the identity of Findley’s mother.
    3
    that Findley is a Jamaican national. See 
    Felzcerek, 75 F.3d at 117
    (holding that the presumption of
    reliability afforded to a Form I-213 is lost when a petitioner introduces evidence contradicting
    statements in the form or undermining its reliability). We therefore conclude that transfer to the
    district court is required.
    We need not address additional evidence of nationality in the record because 8 U.S.C.
    § 1252(b)(5)(B) requires transfer once we determine a genuine issue of material fact exists. Garcia
    v. Dep’t of Homeland Sec., 
    669 F.3d 91
    , 98 (2d Cir. 2011) (transferring to the district court for
    resolution of factual dispute regarding citizenship and stating that the district court must “weigh
    the probative value of [petitioner’s] and the Government’s evidence”). We note, however, our
    agreement with Judge Videla’s conclusion that the evidence of Findley’s alienage submitted by
    the respondent was “unreliable and often contradictory.” Cert. Admin. R. 303.
    For the foregoing reasons, the petition for review is GRANTED and the case is
    TRANSFERRED to the United States District Court for the Southern District of New York for
    further factfinding. All pending motions and applications are DENIED and stays VACATED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe,
    Clerk of Court
    4