Junior Ricketts v. Attorney General United States , 897 F.3d 491 ( 2018 )


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  •                                          PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 16-3182
    _____________
    JUNIOR NATHANIEL RICKETTS
    a/k/a Junior Mohammed Ricketts
    a/k/a Paul Milton Miles,
    Appellant
    v.
    ATTORNEY GENERAL UNITED STATES OF AMERICA
    ______________
    On Appeal from the United States District Court
    for the Eastern District of New York
    (D.C. No. 1-15-cv-00329)
    District Judge: Hon. Margo K. Brodie
    _______________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    July 6, 2018
    Before: JORDAN, GREENAWAY, JR., and FISHER,
    Circuit Judges
    (Filed: July 30, 2018)
    _______________
    Noah M. Weiss
    Williams & Connolly
    725 12th Street, N.W.
    Washington, DC 20005
    Counsel for Appellant
    Benjamin M. Moss
    Eric R. Quick
    United States Department of Justice
    Office of Immigration Litigation
    P.O. Box 878
    Ben Franklin Station
    Washington, DC 20044
    Counsel for Appellee
    _______________
    OPINION OF THE COURT
    _______________
    JORDAN, Circuit Judge.
    When an alien faces removal under the Immigration
    and Nationality Act, one potential defense is that the alien is
    not an alien at all but is actually a national of the United
    States. 8 U.S.C. § 1252(b)(5). An individual contesting a
    final order of removal has the opportunity to raise that
    defense in a petition for review and, if it appears to the
    appellate court considering the petition that a genuine factual
    question exists as to the petitioner’s nationality, that court
    must transfer the proceeding to the district court where the
    2
    petitioner resides, for a nationality determination to be made.
    
    Id. § 1252(b)(5)(B).
    This case requires us to address whether an appeal
    from a nationality determination following such a transfer
    must be taken to the appellate court that typically hears
    appeals from the district court making the determination, or
    whether jurisdiction lies with the appellate court that
    transferred the case to the district court in the first place.
    Both parties urge us to conclude that appeals from nationality
    determinations made under § 1252(b)(5)(B) must be to the
    court of appeals for the circuit that embraces the transferee
    district court. We agree. The pertinent statutory language
    makes it clear that Congress intended for hearings conducted
    pursuant to § 1252(b)(5)(B) to be treated as new proceedings
    separate from the underlying petitions for review. We thus
    lack jurisdiction to entertain an appeal from a nationality
    determination made by the United States District Court for
    the Eastern District of New York.
    I.    BACKGROUND
    Junior M. Ricketts petitioned this Court to review the
    Board of Immigration Appeals’ denial of his motions to
    reopen his removal proceedings, which had resulted in a final
    order of removal.1 One of the defenses to removal that
    Ricketts has raised is that he is in reality a United States
    1
    Ricketts has four petitions for review pending before
    this Court, which have been consolidated (“consolidated
    petitions for review”). See Case Nos. 10-1875, 10-2400, 17-
    3298, and 18-1404. We have stayed those cases pending
    further order of the Court.
    3
    citizen. After determining that there were genuine issues of
    material fact as to his nationality, we granted a joint motion
    by Ricketts and the government to transfer the nationality
    dispute to the United States District Court for the Eastern
    District of New York – the district where Ricketts resided at
    the relevant time – pursuant to 8 U.S.C. § 1252(b)(5)(B), so
    that a determination of his nationality could be made.
    After the District Court conducted an evidentiary
    hearing, it decided that Ricketts had “failed to demonstrate by
    a preponderance of the evidence that he is a citizen of the
    United States.” Ricketts v. Att’y Gen., No. 15-329, 
    2016 WL 3676419
    , at *1 (E.D.N.Y. July 7, 2016). It found instead that
    the “evidence overwhelmingly establishe[d]” that he is a
    Jamaican national who appropriated the identity of a United
    States citizen. 
    Id. at *7.
    Of course dissatisfied with the District Court’s
    determination, Ricketts filed a notice of appeal, seeking
    review by the United States Court of Appeals for the Second
    Circuit. The District Court, however, transmitted the appeal
    to this Court, not to the Second Circuit. After receiving the
    case file from the District Court, our Clerk of Court instructed
    the parties to address whether Ricketts’s appeal was properly
    transmitted to us or whether the appeal should be transferred
    to the Second Circuit. In response, the government filed a
    motion to transfer the appeal to the Second Circuit but
    requested that we retain jurisdiction over Ricketts’s
    consolidated petitions for review. Ricketts also requested that
    we transfer his appeal to the Second Circuit.
    4
    II.    DISCUSSION2
    Our interpretation of the statutory scheme Congress
    created to address disputes over nationality must begin, as
    with any matter of statutory interpretation, with the plain text
    of the relevant statutes. Henson v. Santander Consumer USA
    Inc., 
    137 S. Ct. 1718
    , 1721 (2017); Cazun v. Att’y Gen., 
    856 F.3d 249
    , 255 (3d Cir. 2017). “[O]ur inquiry into the
    meaning of [a] statute’s text ceases when the statutory
    language is unambiguous and the statutory scheme is
    coherent and consistent.” Matal v. Tam, 
    137 S. Ct. 1744
    ,
    1756 (2017) (quotation marks and citation omitted).
    Judicial review of a final order of removal is guided by
    8 U.S.C. § 1252. Pertinent here is the portion of that statute
    regarding a defense to removal based on an assertion that the
    petitioner is “a national of the United States.”3 8 U.S.C.
    2
    The District Court had jurisdiction under 8 U.S.C.
    § 1252(b). Our appellate jurisdiction is the central issue
    before us. As always, we have jurisdiction to determine our
    own jurisdiction. United States v. Ruiz, 
    536 U.S. 622
    , 628
    (2002).
    3
    Ricketts claims to be a U.S. citizen. Citizenship and
    nationality are not synonymous. While all citizens are
    nationals, not all nationals are citizens. See 8 U.S.C.
    § 1101(a)(22) (“The term ‘national of the United States’
    means (A) a citizen of the United States, or (B) a person who,
    though not a citizen of the United States, owes permanent
    allegiance to the United States.”). Since citizens are a subset
    of nationals, the defense that Ricketts has raised fits within
    the statutory defense.
    5
    § 1252(b)(5). It provides that, if “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.”                
    Id. § 1252(b)(5)(A).
    But, if the court “finds that a genuine issue
    of material fact [exists as to] the petitioner’s nationality,” it
    must “transfer the proceeding to the district court of the
    United States for the judicial district in which the petitioner
    resides[.]” 
    Id. § 1252(b)(5)(B).
    The statute then explicitly
    instructs that, when a case is transferred from a court of
    appeals to a district court pursuant to § 1252(b)(5)(B) for a
    nationality determination, the district court must treat the case
    “as if an action had been brought in the district court under
    [28 U.S.C. § 2201].” 
    Id. Section 2201
    of Title 28 is the Declaratory Judgment
    Act, and it states, in relevant part, that “any court of the
    United States … may declare the rights and other legal
    relations of any interested party seeking such declaration[.]”
    28 U.S.C. § 2201(a). Importantly, “[a]ny such declaration
    shall have the force and effect of a final judgment or decree
    and shall be reviewable as such.” 
    Id. (emphasis added).
    Reading together the Declaratory Judgment Act and the
    provisions of 8 U.S.C. § 1252(b)(5)(B) pertaining to
    nationality determinations shows that Congress intended the
    following: (i) a case transferred pursuant to § 1252(b)(5)(B)
    for a nationality determination hearing is to be treated by the
    transferee district court as a new declaratory judgment action,
    (ii) a district court’s nationality determination is to be treated
    as a final judgment or decree, and (iii) any challenge to a
    district court’s nationality determination is to be reviewable
    in the same manner as any other final judgment or decree.
    6
    Except for limited circumstances not relevant here, all
    “appeals from reviewable decisions of the district … courts
    shall be taken to the court of appeals … for the circuit
    embracing the district[.]” 28 U.S.C. § 1294(1). Accordingly,
    the sole appellate court with jurisdiction to entertain an appeal
    from a nationality determination made by the United States
    District Court for the Eastern District of New York is the
    United States Court of Appeals for the Second Circuit. Cf.
    Leal Santos v. Mukasey, 
    516 F.3d 1
    , 3 & n.4 (1st Cir. 2008)
    (reviewing challenge to nationality determination following a
    § 1252(b)(5)(B) transfer from the Third Circuit to the District
    of Massachusetts, but noting that “[n]o issue ha[d] been
    raised … about … whether [the First Circuit was] the
    appropriate court to review the district court’s findings”).
    That result comports with the common understanding
    of the jurisdictional consequences that flow from other types
    of case transfers. Section 1252(b)(5)(B), after all, employs
    the word “transfer,” and “[w]e presume that Congress
    expresses its intent through the ordinary meaning of the
    words it uses.” Del. Cty. v. Fed. Housing Fin. Agency, 
    747 F.3d 215
    , 221 (3d Cir. 2014).             Courts address the
    jurisdictional consequences of a transfer most frequently
    when a case has been transferred from one district court to
    another pursuant to 28 U.S.C. § 1404. In that context we
    have stated clearly that, once a transferor court sends the case
    file to the transferee court, “the transferor court—and the
    appellate court that has jurisdiction over it—lose all
    jurisdiction over the case and may not proceed further with
    regard to it.” White v. ABCO Eng’g Corp., 
    199 F.3d 140
    , 143
    n.4 (3d Cir. 1999) (citation omitted). That basic principle of
    appellate jurisdiction stems directly from the territorial
    limitation Congress has placed on the courts of appeals’
    7
    jurisdiction in 28 U.S.C. § 1294(1). See In re HealthTrio,
    Inc., 
    653 F.3d 1154
    , 1162 (10th Cir. 2011) (explaining that
    “§ 1294(1) confers jurisdiction in a territorial manner”); cf.
    Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc.,
    
    247 F.3d 44
    , 51 (3d Cir. 2001) (describing § 1294(1) as
    conferring jurisdiction).
    We acknowledge that the question of appellate
    jurisdiction following a § 1404 transfer has caused a split
    among our sister courts of appeals. See TechnoSteel, LLC v.
    Beers Const. Co., 
    271 F.3d 151
    , 154-57 (4th Cir. 2001)
    (addressing circuit split). They are not in agreement over
    whether the pre-transfer decisions of a transferor court are
    reviewable by the court of appeals embracing the transferee
    court. 
    Id. That disagreement
    is not at issue here, however,
    because Congress has instructed that § 1252(b)(5)(B)
    transfers must be treated as if they were new proceedings
    arising under the Declaratory Judgment Act. See 8 U.S.C.
    § 1252(b)(5)(B) (instructing that transfer be treated “as if an
    action had been brought in the district court under [the
    Declaratory Judgment Act]”); Lopez v. Holder, 
    563 F.3d 107
    ,
    110 (5th Cir. 2009) (explaining that a § 1252(b)(5)(B)
    transfer is a “new” proceeding). And in the context of
    proceedings under § 1252(b)(5)(B), the only district court to
    render a reviewable decision is the transferee district court.
    Because in this case the transferee court was the United States
    District Court for the Eastern District of New York, and that
    court lies within the jurisdiction of the Second Circuit, we
    have no power to entertain an appeal of the nationality
    determination.4
    4
    See, e.g., In re Red Barn Motors, Inc., 
    794 F.3d 481
    ,
    484 (5th Cir. 2015) (addressing an appeal from a case that
    8
    Our decision today may put us at odds with a decision
    of the United States Court of Appeals for the Ninth Circuit.
    In Demirchyan v. Holder, the court characterized a
    § 1252(b)(5)(B) transfer as a limited remand which did not
    require the petitioner challenging a nationality determination
    to file a separate notice of appeal. 
    641 F.3d 1141
    , 1142-43
    (9th Cir. 2011). The Ninth Circuit appears to have rejected
    the contention that a court of appeals is deprived of
    jurisdiction over a petitioner’s nationality challenge once it
    initiates a § 1252(b)(5)(B) transfer. 
    Id. at 1142.
    It has thus,
    perhaps, implicitly rejected one of the premises from which
    we are operating, namely that § 1252(b)(5)(B) transfers create
    new proceedings.        Importantly, however, Demirchyan
    involved the more common procedural posture of an intra-
    circuit § 1252(b)(5)(B) transfer. 
    Id. Therefore, the
    Ninth
    Circuit, as both the transferor court of appeals and the court
    of appeals embracing the district court issuing the ruling, did
    not have to grapple with the jurisdictional issue that arises
    had been transferred out of the Fifth Circuit and explaining
    that “[t]his is not just a case in which no appeal to the Fifth
    Circuit has been perfected; instead, it is a proceeding in which
    no appeal to this court can be taken”); Mackey v. Shalala, 
    360 F.3d 463
    , 467 n.2 (4th Cir. 2004) (explaining that there was
    “no authority” that would permit it to “review the decisions”
    of an out-of-circuit district court); SongByrd, Inc. v. Estate of
    Grossman, 
    206 F.3d 172
    , 177 (2d Cir. 2000) (“[A] court of
    appeals normally has no jurisdiction to review the decision of
    a district court in another circuit[.]”).
    9
    when there is an appeal following an inter-circuit
    § 1252(b)(5)(B) transfer, as is so here.5
    For the reasons already explained, there is a
    meaningful distinction between § 1252(b)(5)(B) transfers and
    limited remands.       As to § 1252(b)(5)(B), Congress
    constructed a statutory scheme using the term “transfer” and
    specifically instructed that such “transfers” be treated as if
    they were newly filed declaratory judgment actions. 8 U.S.C.
    § 1252(b)(5)(B). In contrast, a limited remand is a procedural
    device created by appellate courts for judicial convenience
    and case management to allow a district court to make
    “additional findings or explanations.” In re Lipitor Antitrust
    Litig., 
    855 F.3d 126
    , 151 (3d Cir. 2017) (emphasis added).
    Nationality determinations do not involve returning a case to
    a district court for additional findings or explanations.
    Rather, they require a district court to undertake an
    examination of a petitioner’s nationality claim in the first
    instance. See Joseph v. Att’y Gen., 
    421 F.3d 224
    , 229-30 (3d
    Cir. 2005) (explaining that a § 1252(b)(5)(B) transfer results
    in a district court conducting a de novo nationality
    determination).      Moreover, considerations of judicial
    convenience and case management do not outweigh
    Congressional directions.       Accordingly, to the extent
    Demirchyan can be read to stand for the proposition that a
    court of appeals that initiates a § 1252(b)(5)(B) transfer
    5
    The United States Court of Appeals for the Second
    Circuit has also suggested, in a non-precedential opinion, that
    intra-circuit § 1252(b)(5)(B) transfers be treated as limited
    remands. See Morales-Santana v. Holder, 529 F. App’x 78,
    79-80 (2d Cir. 2013) (treating an intra-circuit § 1252(b)(5)(B)
    transfer as a limited remand).
    10
    necessarily retains jurisdiction over any subsequent challenge
    to the nationality determination, we respectfully disagree.6
    Our conclusion that we lack jurisdiction to entertain
    Ricketts’s appeal of the nationality determination made by the
    United States District Court for the Eastern District of New
    York does not affect our jurisdiction over Ricketts’s
    underlying consolidated petitions for review.               The
    jurisdictional discussion above relates only to the nationality
    determination undertaken by the § 1252(b)(5)(B) transferee
    district court. The proceedings here and in the circuit court
    embracing the transferee district court progress, in effect, on
    independent tracks, though it will typically be appropriate for
    us to stay an underlying petition for review pending a
    nationality determination. Once there is a final resolution of a
    petitioner’s nationality claim, the merits of the underlying
    petition for review should be ripe for disposition.
    We will thus transfer only Ricketts’s nationality appeal
    to the United States Court of Appeals for the Second Circuit
    pursuant to 28 U.S.C. § 1631.
    6
    Our holding today does not conflict with Khouzam v.
    Attorney General, 
    549 F.3d 235
    (3d Cir. 2008). In Khouzam,
    we held that, with respect to jurisdiction over petitions for
    review, 8 U.S.C. § 1252(b)(2) “is a non-jurisdictional venue
    
    provision.” 549 F.3d at 249
    . This case, however, does not
    implicate our jurisdiction over a petition for review. Rather,
    it implicates only our jurisdiction to entertain an appeal from
    a reviewable decision made by an out-of-circuit district court.
    11
    III.   CONCLUSION
    For the foregoing reasons, the motion to transfer will
    be granted and the consolidated petitions for review will
    remain stayed pending a final decision on Ricketts’s appeal of
    his nationality determination.
    12