Junior Ricketts v. Atty Gen USA ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 10-1875/2400
_____________
JUNIOR NATHANIEL RICKETTS
a/k/a Junior Mohammed Ricketts
a/k/a Paul Milton Miles,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF
AMERICA,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA 1:A027-024-434)
Immigration Judge: Hon. Walter A. Durling
_______________
Argued
February 6, 2020
Before: JORDAN, GREENAWAY, JR., and FISHER,
Circuit Judges
(Filed: April 8, 2020)
_______________
Noah M. Weiss [ARGUED]
Williams & Connolly
725 12th Street, NW
Washington, DC 20005
Counsel for Petitioner
John M. McAdams, Jr.
Benjamin M. Moss [ARGUED]
Erik R. Quick
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Junior Ricketts petitions for review of two decisions by
the Board of Immigration Appeals (“BIA”), denials of a
motion to reopen and a motion to reconsider. He has told
various adjudicatory bodies for nearly 30 years that he is an
American citizen. Last year, the United States Court of
Appeals for the Second Circuit affirmed a district court finding
that he is not. Since his citizenship claim is the only basis on
which he says he is entitled to relief from the order of removal,
2
and since he cannot now rely on that claim, we will deny the
petition for review.
I. Background
Ricketts, whom the government has always maintained
is a citizen of Jamaica, has been convicted of several felonies;
hence his immigration difficulties. On December 17, 1992, he
was charged, among other crimes, with embezzlement and
transporting a minor in interstate or foreign commerce with the
intent to engage in sexual activity. He pled guilty to all charges
and, as an additional consequence of his criminal convictions,
was deemed subject to removal.
In proceedings before an Immigration Judge (“IJ”),
however, Ricketts argued that he was actually a U.S. citizen.
The IJ rejected that claim, and the BIA dismissed his appeal.
He petitioned our court for review and, at the same time, sought
a stay of removal. While the petition and the motion for a stay
were pending, Ricketts was removed to Jamaica, and his
petition and motion were “procedurally terminated without
judicial action.” Clerk Order, Ricketts v. Attorney General,
No. 00-3270 (3d Cir. Jul. 31, 2000).
Continuing to insist that he is an American, Ricketts
persuaded the Jamaican Constabulary Force to investigate his
citizenship status. Officials there agreed with him and,
accordingly, he was sent back to the United States in February
2003, approximately three years after he was removed.
In 2005, while Ricketts was in state custody for a
criminal theft conviction, the Department of Homeland
Security learned of his return and reinstated his order of
3
removal. Four years later, he received a copy of the Jamaican
report stating that he is an American citizen and not a Jamaican
citizen. With that evidence in hand, he filed with the BIA
motions to reopen his removal proceedings and to reconsider
the existing order of removal – the motions at issue now. 1 The
BIA dismissed both motions, asserting that, because of a
regulatory provision known as the post-departure bar, 8 C.F.R.
1
In 2006, Ricketts had filed a petition for review of the
reinstated order of removal with this Court. We dismissed the
case because “our duty to dismiss untimely claims is
mandatory where the Attorney General objects on the basis of
untimeliness.” Order, Ricketts v. Attorney General, No. 06-
4612 (3d Cir. Apr. 16, 2007). That year Ricketts also filed two
motions to reopen with the BIA, asking the BIA to exercise its
sua sponte authority to reconsider his initial order of removal.
The BIA denied both of those motions as untimely. Ricketts
asked the BIA to reissue its denial of those motions, which it
declined to do. Those earlier motions are not before us.
4
§ 1003.2(d), it lacked jurisdiction. 2 Ricketts again petitioned
for review. 3
At the parties’ request, we stayed this case several
times. 4 Then, at their joint request, we transferred the case to
2
The “post-departure bar” is found in 8 C.F.R.
1003.2(d), and states as follows:
A motion to reopen or a motion to reconsider
shall not be made by or on behalf of a person who
is the subject of exclusion, deportation, or
removal proceedings subsequent to his or her
departure from the United States. Any departure
from the United States, including the deportation
or removal of a person who is the subject of
exclusion, deportation, or removal proceedings,
occurring after the filing of a motion to reopen or
a motion to reconsider, shall constitute a
withdrawal of such motion.
3
To be precise, Ricketts filed two petitions for review,
one for his motion to reopen and one for his motion to
reconsider. We consolidated the two cases and, for ease of
reference, speak of the petitions in the singular.
4
From June 2011 to May 2014, this case was stayed
pending Ricketts’s criminal proceedings in the United States
District Court for the Western District of New York under 18
U.S.C. § 911 for “falsely and willfully represent[ing] himself
to be a citizen of the United States[,]” among other crimes.
(Joint Motion to Hold Proceedings in Abeyance dated Jun. 10,
2011, Ricketts v. Attorney Gen., No. 10-1875.) That case was
5
the United States District Court for the Eastern District of New
York (“EDNY”), the district where Ricketts resides, to resolve
disputed facts concerning his claim of American citizenship,
pursuant to 8 U.S.C. § 1252(b)(5)(B). (Joint Motion dated
1/13/2015, Ricketts v. Attorney Gen., No. 10-1875.) We held
the petition for review in abeyance pending the resolution of
the citizenship question, including any appeal of that decision.
The whole basis of Ricketts’s citizenship claim is his
assertion that he was born in Brooklyn on August 31, 1964 as
Paul Milton Miles. He says he changed his name for religious
reasons. To substantiate his claim that he is Paul Milton Miles,
he submitted various official records, including a birth
certificate in that name, with the name crossed out and “Junior
Mohammed Ricketts” written above it. The EDNY found that
Ricketts’s evidence was not credible and that the government’s
evidence proving Ricketts is not a U.S. citizen was persuasive. 5
resolved when he pled guilty to witness tampering. The other
charges were dismissed.
5
That is putting it mildly. Among other things, the
Court concluded that “only one person named Paul Milton
Miles was born in Brooklyn New York” from 1955 to 1970,
and that person is the son of Lizzie Mae Page Miles and Robert
Miles, Jr. Ricketts v. Lynch, No. 15-cv-00329, 2016 WL
3676419, at*2 (E.D.N.Y. Jul. 7, 2016). At deposition, Lizzie
Mae Page Miles identified her son, Paul Milton Miles, who
“was physically present in the room” and who is not Junior
Ricketts. Id. at *3. For a more complete recitation of the
evidence Ricketts and the government presented regarding
Ricketts’s citizenship claims, see id. at *2-*5.
6
Ricketts v. Lynch, No. 15-cv-00329, 2016 WL 3676419
(E.D.N.Y. Jul. 7, 2016). The Second Circuit affirmed that
decision, and subsequently denied Ricketts’s motion to
reconsider the affirmance. Ricketts v. Barr, No. 18-2244, 2019
WL 938996 (2d Cir. Feb. 26, 2019); Ricketts v. Barr, No. 18-
2244, 2019 WL 1858373 (2d Cir. Apr. 25, 2019).
Next, we lifted the stay in this case and ordered
supplemental briefing to “address[ ] the validity of the
departure bar regulation and the impact, if any, of the Second
Circuit’s decision” on these proceedings. (Order dated
8/28/19, Ricketts v. Attorney Gen., 10-1875.) In supplemental
briefing, Ricketts argued that we must remand to the BIA
because it improperly contracted its jurisdiction when, in
applying the post-departure bar, it dismissed his appeal for lack
of jurisdiction. The government argued in response that
remand would be futile, since the BIA cannot grant Ricketts
relief from removal on the ground that he is a citizen, as that
claim has been foreclosed by the rulings of the EDNY and
Second Circuit. We agree with the government that remand
would be futile, so we will focus solely on that and not address
whether the BIA erred in stating that the post-departure bar
deprived it of jurisdiction.
II. Discussion
Even if the BIA erred when it characterized the post-
departure bar as a restriction of its jurisdiction, 6 we may forgo
6
At oral argument, the government emphasized that the
BIA decisions at issue here are some ten years old, and it
intimated that the BIA has ended the practice of dismissing for
lack of jurisdiction under the post-departure bar, perhaps under
7
remanding this case if a remand would be futile. Under S.E.C.
v. Chenery Corp., 318 U.S. 80 (1943), a court will generally
dispose of an administrative law case only on the grounds cited
by the pertinent agency, but remand for further agency action
is unnecessary when “only one disposition is possible as a
matter of law.” George Hyman Const. Co. v. Brooks, 963 F.2d
1532, 1539 (D.C. Cir. 1992). As the Supreme Court has noted,
Chenery “does not require that we convert judicial review of
agency action into a ping-pong game.” NLRB v. Wyman-
Gordon Co., 394 U.S. 759, 766 n.6 (1969). When only one
outcome is possible, “[i]t would be meaningless to remand.”
Id. Such circumstances are sometimes described as
constituting the “remand futility” exception to the general rule
laid down in Chenery.
Ricketts tries to resist application of the remand futility
exception by arguing first, that we have not previously held
that the exception applies in immigration proceedings, and
second, that remand futility is rare and the exception should not
be applied when jurisdiction is in question.
the weight of circuit court decisions saying it could not
properly do so. See Santana v. Holder, 731 F.3d 50 (1st Cir.
2013) (holding that the “post-departure bar cannot be used to
abrogate a noncitizen’s statutory right to file a motion to
reopen,” id. at 61, and collecting cases from six courts of
appeals holding the same and three courts of appeals striking
“down the regulation as an impermissible contraction of the
agency’s jurisdiction[.]” Id. at 54-55.). Since it is a most
serious question whether the BIA may restrict its jurisdiction,
as it did here, we hope that is the case.
8
It is true that we have not expressly held that the remand
futility exception applies in the immigration context, but we
have suggested as much. For example, in Nbaye v. Attorney
General, 665 F.3d 57 (3d Cir. 2011), the government argued
that remand would be futile because the alien could not avoid
removal. We rejected that argument because there was in that
case at least one scenario in which “remand surely would not
have been futile[,]” but we did not dispute that the remand
futility exception could have application in the right
circumstances. Id. at 59-60. The government also cites
immigration cases from outside our Circuit in which courts
have explicitly recognized the remand futility exception. See
Gonzales-Veliz v. Barr, 938 F.3d 219, 235 (5th Cir. 2019)
(holding in the alternative that remand would be futile because
the alien could not prevail under the legal standard); Shou Wei
Jin v. Holder, 572 F.3d 392, 396 (7th Cir. 2009) (“Although
the IJ’s legal error gives us pause-and a different record may
well have justified a remand-a remand would be futile in this
case because [the noncitizen] presented no evidence [to
support his claims].”).
This case gives us an opportunity to say what others
have said and we have only suggested before: namely, that
when remand would be futile – meaning the BIA on remand
would be unable as a matter of law to grant the relief sought –
we may deny a petition for review, without regard to the
various issues that might otherwise be in play in the case. That
indeed is our holding today.
The only argument Ricketts raised in his motions to
reopen and to reconsider is that he was a United States citizen
and therefore not removable. The Second Circuit, based on the
thoughtful work done by the EDNY, has conclusively
9
determined that Ricketts is not a United States citizen. The
BIA is bound by that decision as a matter of law. See Baez-
Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020) (“Once
[a United States Court of Appeals] reach[es] a conclusion, both
the Constitution and the statute require[ ] the [BIA] to
implement it.”). Even if it were not, both issue preclusion and
claim preclusion would apply here, with the same result. See
Duvall v. Attorney Gen., 436 F.3d 382, 391 (3d Cir. 2006)
(“Collateral estoppel [, or issue preclusion,] generally applies
when the same issue was previously litigated by the same
parties and was actually decided by a tribunal of competent
jurisdiction.”); Duhaney v. Attorney Gen., 621 F.3d 340, 347
(3d Cir. 2010) (“Res judicata, also known as claim preclusion,
bars a party from initiating a second suit against the same
adversary based on the same ‘cause of action’ as the first
suit.”). Since the BIA cannot grant Ricketts relief from
removal on the basis that he is a citizen, remand would be
futile.
III. Conclusion
For the foregoing reasons, we will deny Ricketts’s
petition for review.
10