Dexter Pantlitz-Wilkinson v. Attorney General United States , 598 F. App'x 129 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3137
___________
DEXTER PANTLITZ-WILKINSON,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A042-972-759)
Immigration Judge: Honorable Leo A. Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 20, 2014
Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Filed: February 10, 2015)
___________
OPINION*
___________
PER CURIAM
Dexter Pantlitz-Wilkinson petitions for review of the Board of Immigration
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
Appeals’ (“BIA”) final order of removal. We will deny the petition.
I.
Pantlitz-Wilkinson was born in Guyana to citizens of Guyana but claims to
have derived United States citizenship when his father and stepmother later naturalized.
He entered the United States in 1991 when he was fifteen years old and later became a
lawful permanent resident. In 2009, he pleaded guilty to conspiring in violation of N.J.
Stat. Ann. § 2C:5-2 to possess with the intent to distribute controlled substances in
violation of N.J. Stat. Ann. § 2C:35-5(a)(1). On the basis of that conviction, the
Government charged him as removable for being convicted of (1) a controlled substance
violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and (2) illicit-trafficking and conspiracy
aggravated felonies, see 8 U.S.C. §§ 1101(a)(43)(B) & (U), 1227(a)(2)(A)(iii).
Pantlitz-Wilkinson initially appeared before the Immigration Judge (“IJ”) pro se,
but he later obtained counsel and the IJ granted him multiple continuances to investigate
his claim to citizenship and apply for any relief for which he might be eligible. Pantlitz-
Wilkinson, through counsel, ultimately conceded all charges of removability, declined to
apply for any relief from removal, and argued only that he is a United States citizen. He
filed a motion to terminate the removal proceeding on that basis, but the IJ denied it and
ordered Pantlitz-Wilkinson’s removal to Guyana. Pantlitz-Wilkinson appealed pro se and
argued, in addition to his citizenship claim, that his conviction does not render him
removable and that his counsel rendered ineffective assistance by conceding otherwise.
2
The BIA dismissed his appeal on the merits, and he petitions for review pro se.1
II.
A. Citizenship
Pantlitz-Wilkinson’s primary argument throughout this proceeding has been that
he is a citizen of the United States. Pantlitz-Wilkinson concedes that he was not born in
the United States, and he thus bears the burden to prove his eligibility for citizenship.
See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005). “[P]ersons born outside of the
United States may acquire United States citizenship only as provided by acts of
Congress[.]” Morgan v. Att’y Gen., 432 F.3d 226, 230 (3d Cir. 2005) (quotation marks
omitted). Pantlitz-Wilkinson claims that he derived citizenship from his stepmother
when she naturalized in 1989, when he was thirteen years old, and from his father when
he naturalized in 1994, approximately five months after Pantlitz-Wilkinson turned
eighteen. He raises essentially two arguments in that regard, but they lack merit.
First, Pantlitz-Wilkinson relies on INA § 301(g), 8 U.S.C. § 1401(g).2 Under that
1
We have jurisdiction under 8 U.S.C. § 1252(a)(1), but, because the Agency found that
Pantlitz-Wilkinson is a criminal alien, our jurisdiction is limited to constitutional claims
and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D). Pantlitz-Wilkinson’s claim to
derivative citizenship is not based on any disputed facts, and we exercise plenary review
over that purely legal issue. See Brandao v. Att’y Gen., 654 F.3d 427, 428 (3d Cir.
2011). In doing so, we do not defer under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), to the BIA’s single-member, non-
precedential decision in this case. See Mahn v. Att’y Gen., — F.3d —, No. 12-4377,
2014 WL 4627976, at *2 (3d Cir. Sept. 17, 2014). We review claims of ineffective
assistance de novo. See Contreras v. Att’y Gen., 665 F.3d 578, 583 (3d Cir. 2012).
2
This statute was codified at 8 U.S.C. § 1401(a)(7) at the time of Pantlitz-Wilkinson’s
3
statute, a person becomes a United States citizen “at birth” if the person is “born outside
the geographical limits of the United States” and one of the person’s parents was a United
States citizen at that time and satisfied certain residency requirements. Id. (emphasis
added). Pantlitz-Wilkinson argues that this statute applies to him because, under the
reasoning in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), his stepmother
should be deemed his “parent” for purposes of this statute. As the BIA explained,
however, this statute would not apply to Pantlitz-Wilkinson even if she were because his
stepmother was not a United States citizen when he was born and did not become a
citizen until 1989 when he was thirteen years old. The Ninth Circuit itself has
distinguished Solis-Espinoza and refused to extend it to Pantlitz-Wilkinson’s situation for
that reason. See Ragasa, 752 F.3d at 1175.
Second, Pantlitz-Wilkinson relies on the provisions governing children born
abroad to later-naturalized parents—former INA § 321(a)(4), 8 U.S.C. § 1432(a), and
current INA § 320, 8 U.S.C. § 1431. Pantlitz-Wilkinson purports to rely on both statutes,
but his claim is governed by former INA § 321(a), 8 U.S.C. § 1432(a), because that was
the statute in effect at all relevant times. See Morgan, 432 F.3d at 230.3 This statute
birth but was later redesignated without substantive change as 8 U.S.C. § 1401(g). See
Ragasa v. Holder, 752 F.3d 1173, 1175 n.2 (9th Cir. 2014).
3
Current INA § 320, 8 U.S.C. § 1431, repealed and replaced former INA § 321(a)(4), 8
U.S.C. § 1432(a), when it was enacted in 2000 as part of the Child Citizenship Act. See
Morgan, 432 F.3d at 230 n.1; Bagot, 398 F.3d at 257 & n.3. The current statute “does not
apply retroactively to persons . . . who turned eighteen before” its enactment. Morgan,
432 F.3d at 230 n.1. Pantlitz-Wilkinson turned eighteen in 1994.
4
confers citizenship on a child upon “[t]he naturalization of both parents,” INA §
321(a)(1), 8 U.S.C. § 1432(a)(1) (emphasis added), if, among other things, “[s]uch
naturalization takes place while such child is under the age of eighteen years,” INA §
321(a)(4), 8 U.S.C. § 1432(a)(4). The BIA concluded that Pantlitz-Wilkinson could not
derive citizenship under this provision because, inter alia, it requires the naturalization of
both parents before the child turns eighteen and Pantlitz-Wilkinson’s father did not
naturalize until thereafter. We agree.
Naturalization is defined as “the conferring of nationality of a state upon a
person,” not as a person’s application for naturalization. 8 U.S.C. § 1101(a)(23); see also
Poole v. Mukasey, 522 F.3d 259, 265 (2d Cir. 2008) (noting that the § 1432(a)(4)
“inquiry focuses on whether [the petitioner’s parent] received her citizenship prior to [the
petitioner’s] eighteenth birthday”) (emphasis added). In this case, Pantlitz-Wilkinson’s
father applied for naturalization in February 1994, approximately two months before
Pantlitz-Wilkinson turned eighteen in April 1994, but the Government did not grant the
application until September 1994, approximately five months thereafter. Thus, under the
plain language of the statute, Pantlitz-Wilkinson did not derive citizenship when his
father naturalized.
Pantlitz-Wilkinson nevertheless argues that the Government’s two-month “delay”
in processing his father’s application should not be held against him. He relies on Calix-
Chavarria v. Attorney General, 182 F. App’x 72 (3d Cir. 2006) (per curiam), in which a
Panel of this Court remanded for further consideration of an identical argument. But in
5
addition to that opinion being non-precedential, see 3d Cir. I.O.P. 5.7, the full history of
that case shows why Pantlitz-Wilkinson’s argument lacks merit.
In Calix-Chavarria, the petitioner claimed derivative citizenship under this statute
on the basis of his mother’s naturalization even though the Government granted her
application after he turned eighteen. See id. at 75. The petitioner argued that his mother
submitted her naturalization application over two years before he turned eighteen and that
the Government’s delay in adjudicating it should not be held against him. See id. The
Panel too was concerned about that delay, and it remanded for the BIA to consider
whether the policies underlying the Child Status Protection Act of 2002 (“CSPA”) could
be applied to the statute at issue here. See id. at 76.4
On remand, the BIA concluded that the policies underlying the CSPA cannot
override the plain language of the statute and again rejected the petitioner’s claim.
Another Panel of this Court denied the petitioner’s second petition for review. See
Chavarria-Calix v. Att’y Gen., 510 F. App’x 130 (3d Cir. 2013). The Panel concluded
that, despite the Government’s over two-year delay in adjudicating the naturalization
application, the petitioner failed to satisfy the statutory requirement that his mother
actually receive citizenship before he turned eighteen and this Court lacks the authority to
4
The CSPA provides “age-out” protection for aliens who were children at the time an
application for permanent residency was filed on their behalf but, as the Panel
recognized, that statute does not apply to citizenship claims. See Calix-Chavarria, 182 F.
App’x at 75; see also Scialabba v. Osorio, 134 S. Ct. 2191, 2199-2200 (2014) (noting that
Congress enacted the CSPA to provide “age-out” protection for the beneficiaries of
family-sponsored visa petitions).
6
make equitable exceptions to that statutory requirement. See id. at 133-34 (citing INS v.
Pangilinan, 486 U.S. 875, 883-85 (1988)). The Panel also concluded that, even if it had
the authority, the petitioner had not shown affirmative misconduct on the part of the
Government or any other circumstance warranting such relief. See id. at 134.5
The same is true here. Because Pantlitz-Wilkinson’s father did not naturalize until
after Pantlitz-Wilkinson turned eighteen, Pantlitz-Wilkinson did not derive citizenship
from his father under the plain limitations of former INA § 321(a), 8 U.S.C. § 1432(a),
and “[n]either by application of the doctrine of estoppel, nor by invocation of equitable
powers, nor by any other means does a court have the power to confer citizenship in
violation of these limitations.” Pangilinan, 486 U.S. at 885.
Nor has Pantlitz-Wilkinson provided any basis to exercise that authority even if
we could. See Cheruku v. Att’y Gen., 662 F.3d 198, 207-09 (3d Cir. 2011) (addressing
the limited circumstances warranting equitable estoppel or nunc pro tunc relief in other
contexts). Pantlitz-Wilkinson seeks relief solely on the basis of what he characterizes as
an “inexplicable delay” in adjudicating his father’s naturalization application, but the
“delay” between the filing of that application and Pantlitz-Wilkinson’s eighteenth
birthday was only approximately two months in this case (as opposed to the over two-
5
The Second Circuit followed Calix-Chavarria in remanding a similar citizenship claim
for a similar reason in Poole, 522 F.3d 259, but, like this Court, it ultimately denied the
petition for review after the BIA again rejected the petitioner’s claim. See Poole v.
Holder, 363 F. App’x 82, 83-84 (2d Cir. 2010).
7
year delay that troubled the Panel in Calix-Chavarria). It is hardly inexplicable that it
might take the Government more than two months to process a naturalization application.
Cf. Scialabba, 134 S. Ct. at 2199 (noting that “many months may go by before [the
Government] approves the initial [family visa] petition”).
B. Pantlitz-Wilkinson’s Remaining Arguments
Pantlitz-Wilkinson also argues that his New Jersey conviction does not render him
removable and that his counsel rendered ineffective assistance by conceding that it does.
The BIA did not reach the first of these arguments because it concluded that (1) Pantlitz-
Wilkinson did not support his claim of ineffective assistance as required by In re Lozada,
19 I. & N. Dec. 637 (BIA 1988), and (2) the IJ was otherwise justified in relying on
counsel’s concession of the charges. We see no basis to disturb either ruling.
First, Lozada sets forth three procedural requirements for asserting a claim of
ineffective assistance. See Contreras v. Att’y Gen., 665 F.3d 578, 585 n.5 (3d Cir.
2012).6 We do not apply “a strict, formulaic interpretation of Lozada,” but we have
upheld its requirements as a reasonable exercise of the BIA’s discretion. Lu v. Ashcroft,
259 F.3d 127, 133 (3d Cir. 2001). In this case, Pantlitz-Wilkinson did not submit the
6
These requirements are that the alien: (1) support the claim with an affidavit attesting to
the relevant facts; (2) inform former counsel of the allegations and permit former counsel
an opportunity to respond; and (3) indicate whether the alien has filed a disciplinary
complaint and, if not, explain why. See Contreras, 665 F.3d at 585 n.5. Although our
decisions most frequently address these requirements in the context of motions to reopen,
the BIA could have construed Pantlitz-Wilkinson’s brief as such a motion if he had
properly supported this claim, and the same considerations govern on appeal. See
Garcia-Martinez v. DHS, 448 F.3d 511, 514 (2d Cir. 2006).
8
documents or information required by Lozada to the BIA with his brief or any other
filing. To the contrary, his only mentions of Lozada were his assertions in his brief that
“the requirements of Lozada are not dispositive” and that a “previous filing”—which he
neither identified nor attached—satisfied those requirements. (A.R. 13-14.) We cannot
fault the BIA’s reliance on Lozada in light of what Pantlitz-Wilkinson presented to it.7
Moreover, even if Pantlitz-Wilkinson had satisfied the Lozada requirements, and as
discussed at the close of this opinion, Pantlitz-Wilkinson has not asserted a valid claim of
ineffective assistance because he has not shown prejudice. See Contreras, 665 F.3d at
584-85.
Second, the BIA did not err in concluding that the IJ otherwise reasonably relied
on counsel’s concession of removability. In doing so, the BIA cited 8 C.F.R. §
1240.10(c), which expressly permits IJs to rely on admissions of removability. See also
Shin v. Mukasey, 547 F.3d 1019, 1024 (9th Cir. 2008) (“[W]here the alien concedes
removability, the government’s burden [to prove it] is satisfied.”) (quotation marks
omitted). The BIA also cited In re Velasquez, 19 I. & N. Dec. 377, 382 (1986), which
recognizes that aliens generally are bound by the admissions of their counsel. We too
7
In addition to his brief, Pantlitz-Wilkinson filed with the BIA a notice of appeal (A.R.
62-69) and a motion for an extension of time to file his brief (A.R. 55-56). Neither of
these filings nor any other document in the administrative record mentions Lozada or
indicates any attempt to comply with its requirements. Pantlitz-Wilkinson has attached
various documents evidencing an attempt to comply with Lozada to his petition for
review and his brief in this Court, but we must “decide the petition only on the
administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A).
9
have recognized that “[a]n alien is generally bound by the actions of his attorney,” Calla-
Collado v. Att’y Gen., 663 F.3d 680, 683 (3d Cir. 2011) (per curiam), as have other
courts in similar situations, see, e.g., Hoodho v. Holder, 558 F.3d 184, 191-92 (2d Cir.
2009).
Pantlitz-Wilkinson has raised nothing suggesting that this general principle should
not apply here. He argues that he contested the allegations and charges against him while
he was still proceeding pro se, but the only specific allegation he contested was an
allegation regarding a weapons conspiracy that did not form the basis for his charges of
removability. (A.R. 84.) Then, after Pantlitz-Wilkinson obtained counsel, counsel
expressly conceded both the factual allegations and the charges of removability contained
in the Notice to Appear. (A.R. 103.) And after that concession, although Pantlitz-
Wilkinson was represented at times by different members of the same law firm, he never
protested the concession before the IJ and instead answered “yes” when the IJ asked him
if counsel was authorized to speak for him. (A.R. 107-08, 115.)
Pantlitz-Wilkinson also argues that there is insufficient evidence in the record to
sustain the charges of removability. “Admissions by parties,” however, “are not subject
to judicial scrutiny to ensure that the admissions are fully supported by the underlying
record.” Hoodho, 558 F.3d at 191. “Where, as here, the record evidence does not plainly
contradict the concession of an attorney, we see no basis to second guess the decision of
an IJ to accept that concession and conduct removal proceedings accordingly.” Id. at
187.
10
The record in this case does not “plainly contradict” counsel’s concession that
Pantlitz-Wilkinson was convicted of a controlled substance violation. An alien is
removable if he or she has been “convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation . . . relating to a controlled substance (as defined in section
802 of Title 21), other than a single offense involving possession for one’s own use of 30
grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). Pantlitz-Wilkinson was
convicted of conspiring to violate a statute that makes it illegal to “manufacture,
distribute or dispense, or to possess or have under [one’s] control with intent to
manufacture, distribute or dispense, a controlled dangerous substance.” N.J. Stat. Ann. §
2C:35-5(a)(1); (A.R. 136, 148).
Pantlitz-Wilkinson argues that the Government did not prove that he was
convicted of a controlled substance violation because it did not establish the specific
substance involved and thus did not establish that the substance was controlled under
federal law. See Rojas v. Att’y Gen., 728 F.3d 203, 205 (3d Cir. 2013) (en banc). But
Pantlitz-Wilkinson was charged with conspiring to possess with the intent to distribute
cocaine, heroin, marijuana and methylenedioxa- and methylenedioxy-methamphetamine,
commonly known as Ecstasy (A.R. 140-41), and all of those substances are controlled
under federal law. See 21 U.S.C. § 812, sched. II(a)(4) (cocaine), sched. I(b)(10)
(heroin), sched. I(c)(10) (marijuana), sched. I(c)(1)-(2) (Ecstasy). Moreover, Pantlitz-
Wilkinson himself, before obtaining counsel, expressly admitted before the IJ that “I was
convicted of, of the marijuana possession.” (A.R. 84.) Thus, Pantlitz-Wilkinson cannot
11
be heard to complain that his counsel conceded this charge.8
Nor does the record “plainly contradict” counsel’s concession of the aggravated
felony charges. A conviction under N.J. Stat. Ann. § 2C:35-5(a)(1) does not
categorically constitute an illicit trafficking aggravated felony under the hypothetical
federal felony route, but only because the statute criminalizes the distribution of a small
amount of marijuana for no remuneration, which is only a federal misdemeanor. See
Wilson v. Ashcroft, 350 F.3d 377, 381-82 (3d Cir. 2003). As explained above, Pantlitz-
Wilkinson was charged with possessing with the intent to distribute, not just marijuana,
but cocaine, heroin and Ecstasy as well. Although Pantlitz-Wilkinson’s judgment does
not specify that he pleaded guilty to a conspiracy involving any of those substances, it
does not establish that he did not. The record is instead at most inconclusive on that
point, and an inconclusive record is not sufficient to override counsel’s concession of
removability. See Hoodho, 558 F.3d at 189-90.
For a similar reason, Pantlitz-Wilkinson cannot show that he was prejudiced by
counsel’s concession in the context of this proceeding—i.e., that “the challenged order of
removal is fundamentally unfair, because there is a significant likelihood that the IJ
would not have entered an order of removal absent counsel’s [alleged] errors.”
8
Pantlitz-Wilkinson appears to invoke the exception for “possession for one’s own use of
30 grams or less of marijuana,” 8 U.S.C. § 1227(a)(2)(B)(i), but his statute of conviction
prohibits possession with the intent to distribute and not simple possession. As part of
Pantlitz-Wilkinson’s guilty plea, a charge of simple possession of marijuana was
dismissed. (A.R. 136.) For the same reason, Pantlitz-Wilkinson was not eligible for a
waiver of inadmissibility under 8 U.S.C. § 1182(h).
12
Contreras, 665 F.3d at 584-85 (quotation marks omitted). There is no question that
Pantlitz-Wilkinson is removable for being convicted of a controlled substance violation.
Nor did Pantlitz-Wilkinson apply for any form of relief, let alone any form of relief for
which he would have been eligible but for counsel’s concessions.
Pantlitz-Wilkinson has never claimed that he faces persecution or torture in
Guyana. Thus, the only form of relief for which he conceivably might have been eligible
would have been cancellation of removal under 8 U.S.C. § 1229b(a). If he had applied
for cancellation of removal, however, he would have borne the burden to prove his
eligibility for that relief. See Syblis v. Att’y Gen., — F.3d —, No. 11-4478, 2014 WL
4056557, at *2 (3d Cir. Aug. 18, 2014). That burden would have required him to prove,
inter alia, that he has not been convicted of an aggravated felony. See 8 U.S.C. §
1229b(a)(3). An inconclusive criminal record that does not specify the substance
involved in the offense is not sufficient to meet that burden. See Syblis, 2014 WL
4056557, at *6.
III.
For these reasons, we will deny the petition for review.
13