Daly v. Gonzales , 129 F. App'x 837 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1232
LEARIE A. DALY,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A-035-751-059)
Argued: February 3, 2005 Decided: May 2, 2005
Before WILKINS, Chief Judge, DUNCAN, Circuit Judge, and James C.
CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Cacheris wrote the
majority opinion, in which Chief Judge Wilkins joined. Judge
Duncan wrote a dissenting opinion.
ARGUED: MaryRose Ozee Nwadike, Silver Spring, Maryland, for
Petitioner. Hillel Ryder Smith, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
General, Civil Division, Terri J. Scadron, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
CACHERIS, Senior District Judge:
Learie Arlington Daly, a citizen of Trinidad, petitions for
review of a final order of removal based on a 1996 conviction for
common law battery in Maryland. We affirm.
I.
Daly entered the United States from Trinidad on or about
December 18, 1976, as a lawful permanent resident at the age of
five. While in high school, Daly joined the United States Marine
Corps, and formally enlisted upon graduation from high school on
July 11, 1989. On September 6, 1993, Daly was honorably discharged
from active duty.
On September 30, 1996, Daly was arrested on charges that he
had beaten his two daughters, ages four and two. On October 4,
1996, Daly was charged with two counts of common law battery and
two counts of parental child abuse. On December 17, 1996, Daly
pled guilty to two counts of common law battery in the United
States District Court for the District of Maryland and the child
abuse charges were dismissed. Daly was sentenced to six years of
imprisonment, all of which were suspended, and three years of
supervised probation.
On July 22, 1997, Daly was arrested and charged with child
abuse, second degree assault and possession of a deadly weapon with
intent to injure, and violating his probation. On October 27,
2
1998, Daly was convicted of violating the terms of his probation
and his original six year sentence was imposed.
On May 14, 1999, the Immigration and Naturalization Service
(“INS”) charged Daly with removability under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”),
18 U.S.C. § 1101 et seq., as an alien who has been convicted of an
aggravated felony, to wit, a crime of violence as defined in
section 101(a)(43)(F) of the INA. See 8 U.S.C. §§ 1101(a)(43)(F),
1227(a)(2)(A)(iii). An “aggravated felony” is defined to include
“a crime of violence (as defined in 18 U.S.C. § 16) for which the
term of imprisonment is at least one year.” Id. A “crime of
violence” is defined to include “an offense that has as an element
the use, attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. § 16.
Between 2001 and 2002, Daly appeared before an immigration
judge, who rescheduled his case several times to allow him an
opportunity to, inter alia, apply for naturalization.1 On July 9,
2001, the INS denied Daly’s application for naturalization, finding
that his aggravated felony conviction precluded him from
establishing good moral character.2 On August 14, 2001, the INS
1
Pursuant to 8 U.S.C. § 1440(b)(1), an honorably discharged
veteran of the United States armed forces may apply for
naturalization during deportation proceedings against him.
2
An applicant for naturalization must demonstrate, inter alia,
that he is “a person of good moral character” for at least five
years preceding the filing of his application. See 8 U.S.C.
3
denied Daly’s request for a hearing regarding the denial. On
February 21, 2002, the United States District Court for the
District of Maryland dismissed Daly’s petition for review of the
denial of his application.
On June 25, 2002, Daly filed a motion to terminate his removal
proceedings on the basis that he was a “national” of the United
States. On August 1, 2002, the immigration judge denied Daly’s
motion and ordered him removed to Trinidad. On March 14, 2003, the
Board of Immigration Appeals (“the Board”) remanded the case for
the immigration judge to determine whether Daly was removable as
charged. On June 16, 2003, the immigration judge found Daly
removable as an aggravated felon and ordered him removed. On
February 13, 2004, the Board affirmed the immigration judge’s
decision. Daly has filed a petition seeking review of the Board’s
February 13, 2004 ruling.
II.
This Court reviews legal issues determined by the Board of
Immigration Appeals de novo. Lopez-Soto v. Ashcroft, 383 F.3d 228,
234 (4th Cir. 2004)(citations omitted). The Court always has
jurisdiction to determine whether the facts relevant to its
§ 1427(a). No person shall be regarded as, or found to be, a
person of good moral character if he has been convicted of an
aggravated felony during the period for which good moral character
is required to be shown. 8 U.S.C. § 1101(f)(8).
4
jurisdiction exist. Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.
2000)(citations omitted).
III.
Before reaching the merits of the appeal, we must determine
whether we have jurisdiction to consider Daly’s argument. Under
the INA, “[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C. §
1227(a)(2)(A)(iii)(2004). Under section 1252(a)(2)(C) of the INA:
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 .
. . 1127(a)(2)(A)(iii) . . . of this title for which both
predicate offenses are, without regard to their date of
commission, otherwise covered by section 1227(a)(2)(A)(i)
of this title.
8 U.S.C. § 1252(a)(2)(C)(2004).
However, the Court has rejected a narrow reading of its role
in reviewing final orders of removal under this jurisdiction-
limiting provision. See Lewis v. I.N.S., 194 F.3d 539, 542 (4th
Cir. 1999). Rather, we have jurisdiction to review the two facts
which determine whether we have jurisdiction: (1) whether the
petitioner is an alien, and (2) whether he is “removable by reason
of having committed a criminal offense” listed in section
1252(a)(2)(C). Id.5
IV.
Daly contests both these facts and argues that: (1) he is not
an alien because he is a United States national; and (2) his
conviction of two misdemeanor common law battery offenses do not
constitute a crime of violence as defined by section 101(a)(43)(F)
of the INA and thus do not fit the definition of an aggravated
felony. These are the two issues before us.
A.
Section 1101(a)(3) of the INA defines an “alien” as “any
person not a citizen or national of the United States.” 8 U.S.C.
§ 1101(a)(3)(2004). A “national of the United States” is “a
citizen of the United States, or a person who, though not a citizen
of the United States, owes permanent allegiance to the United
States.” 8 U.S.C. § 1101(a)(22)(2004).
Daly claims that he is not an alien because he has acquired
non-citizen “national” status through objective manifestations of
allegiance. He claims to have manifested his allegiance by
applying for citizenship, residing in the United States for twenty-
six years, serving in the U.S. Marine Corps, and taking an oath
upon enlisting with the Marine Corps. However, none of these
alleged manifestations of allegiance are sufficient to change his
status from alien to national of the United States.
6
1.
This Court has not addressed whether filing an application for
naturalization establishes nationality in the immigration context
to determine whether a non-United States citizen may enjoy the
rights and benefits of United States nationality. The Court
previously held in a different context that filing an application
for naturalization does establish nationality.3
The Ninth Circuit, however, has addressed the issue in
precisely the same context we have in this case, and held that an
alien does not become a national of the United States for purposes
of exercising nationality rights simply by completing an
application for naturalization and giving a statement of
allegiance. Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th
Cir. 2003). The court began its analysis by noting that
traditionally, “national of the United States” encompassed only
citizens of the United States and non-citizens born in territories
of the United States. Id. at 968.
3
In Morin v. United States, 80 F.3d 124, 126 (4th Cir. 1996),
the defendant was charged with the murder of “a national of the
United States” pursuant to 18 U.S.C. § 2332(a). The defendant
tried to escape that offense by alleging that the victim was not a
national of the United States. Id. The Court ruled that because
the victim was a permanent resident alien of the United States who
had applied for United States citizenship, he was indeed “a
national of the United States.” Id.However, Morin concerned the reach of a federal murder statute
and is not controlling where, as here, a person’s nationality
status determines whether he can enjoy the rights and benefits of
United States nationality and avoid deportation.
7
The court then considered the text and context of section
1101(a)(22), which defines “national of the United States” as “a
person who, though not a citizen of the United States, owes
permanent allegiance to the United States.” Id. The court stated
that a “naturalization applicant cannot rightly be said to owe
permanent allegiance, because naturalization applications are often
denied or withdrawn.” Id. (emphasis in original). Turning to
statutory context, the court noted that section 1101(a)(23)
provides that “[t]he term ‘naturalization’ means the conferring of
nationality of a state upon a person after birth, by any means
whatsoever.” Id. This provision which immediately follows the
definition of a “national of the United States” provides that
“naturalization” is the path by which a person attains nationality
after birth. Section 1101(a)(23) is thus consistent with the
conclusion that one may become a “national of the United States”
only through birth or by completing the naturalization process.
Id.The court found further support for its interpretation of
“national of the United States” in 8 U.S.C. § 1408, which lists
four categories of persons who are classified as nationals, but not
citizens, of the United States. Id. Each category relates in some
way to birth in an outlying possession of the United States.
Applying the canon of expressio unius est exclusio alterius, the
court concluded that the fact that Congress has defined “national”
8
as including only those four categories of persons is significant.
Id. at 969-70 (citing Boudette v. Barnette, 923 F.2d 754, 756-57
(9th Cir. 1991)); see also United States v. Giordano, 469 F.2d 522,
529 (4th Cir. 1972).
Section 1481 of Title 8, which sets forth a number of ways in
which a “person who is a national of the United States whether by
birth or naturalization, shall lose his nationality,” also provided
support. 8 U.S.C. § 1481(a). This section implies that a person
can become a “national of the United States” only through either
birth or nationalization. Perdomo-Padilla, 333 F.3d at 970.
The court also noted that the Petitioner’s interpretation of
section 1101(a)(22) could not be reconciled with 8 U.S.C. § 1429,
which provides that “no person shall be naturalized against whom
there is outstanding a final finding of deportability . . . and no
application for naturalization shall be considered by the Attorney
General if there is pending against the applicant a removal
proceeding.” 8 U.S.C. § 1429. Because the INA permits the removal
of aliens only, and section 1429 allows the removal of individuals
with pending naturalizations, the court concluded that it was clear
that Congress viewed applicants for naturalization as aliens and
not nationals. Id. at 970.
Finally, the court turned to the regulatory context of section
1101(a)(22) and noted that although the INS has not issued
regulations defining “national” under section 1101(a)(22), at least
9
one regulation addresses the meaning of “national of the United
States” in a different context. Id. Title 14 C.F.R. § 1259.101(c)
defines “national of the United States” for purposes
of a NASA grant program as “a citizen of the United States or a
native resident of a possession of the United States.” It does not
refer to or include a citizen of another country who has applied
for United States naturalization.
The court then declined to apply Morin in the immigration
context and ultimately concluded that the only way to become a
“national of the United States” was through birth or
naturalization. Id. at 972.
Other courts of appeals have adopted the Ninth Circuit’s
holding. See Salim v. Ashcroft, 350 F.3d 307, 310 (3d Cir.
2003)(“we now join the Court of Appeals for the Ninth Circuit in
holding that simply filing an application for naturalization does
not prove that one ‘owes a permanent allegiance to the United
States’”); United States v. Jimenez-Alcala, 353 F.3d 858, 861 (10th
Cir. 2003)(adopting the Ninth’s Circuit’s analysis and conclusion
that “the term ‘national,’ when used to describe non-citizens,
refers only to those born in territories of the United States”).
We also find the Ninth Circuit’s analysis persuasive and
conclude that in the immigration context, an alien does not become
a national of the United States simply by completing an application
for naturalization and giving a statement of allegiance. In the
10
words of the Ninth Circuit, the “Petitioner’s interpretation
creates an absurd result with respect to those persons whose
applications for naturalization are, in fact, denied.” Perdomo-
Padilla, 333 F.3d at 969. Daly did not attain the status of
national of the United States by applying for naturalization.
2.
We also reject Daly’s claim that he is a national by virtue of
residing for twenty-six years in the United States. The Court
joins the other courts of appeals that have held that a person who
merely resides for a long period in the United States does not
become a national of the United States. See Oliver v. I.N.S., 517
F.2d 426, 427-28 (2d Cir. 1975)(petitioner who resided exclusively
in the United States for twenty years since early childhood does
not “owe allegiance” and is not a “national”); Hughes v. Ashcroft,
255 F.3d 752, 756 (9th Cir. 2001); Carreon-Hernandez v. Levi, 543
F.2d 637, 638 (8th Cir. 1976); accord Shekoyan v. Sibley Intern.
Corp., 217 F. Supp. 2d 59, 66-67 (D.D.C. 2002). A long residency
period does not demonstrate the requisite permanent allegiance to
the United States. Daly did not become a national of the United
States by residing in the United States for twenty-six years.
11
3.
Daly’s claim that he is a United States national because he
served in the United States Marine Corps and took the oath upon
enlisting also lacks merit. The Ninth Circuit recently held that
an alien who has served in the United States armed forces and taken
the military oath has not become a national of the United States.
Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938 (9th Cir. 2004). The
court explained that its ruling in Perdomo-Padilla that birth and
full naturalization are the only two ways to attain the status of
“national” precluded the petitioner’s argument. Id. at 940.
(emphasis in original). However, the court explained that even if
it were free to decide that the petitioner could achieve national
status by some act other than full naturalization, it would still
conclude that the military oath does not demonstrate that the
person taking the oath “owes permanent allegiance to the United
States” as required by 8 U.S.C. § 1101(a)(22). Id.We find the Ninth Circuit’s analysis in Reyes-Alcaraz
persuasive and hereby adopt that analysis. Daly did not become a
national of the United States by serving in the Marine Corps and
taking the oath upon enlisting.
For the foregoing reasons, the Court finds that Daly is an
“alien” as defined by the INA.
12
B.
Daly argues that he is not removable because he has not been
convicted of a crime of violence and therefore did not commit an
aggravated felony. This argument lacks merit.
Daly argues that the Board erred in looking to the Application
for Statement of Charges/Statement of Probable Cause when
determining whether battery was a crime of violence. Daly was
convicted of common law battery, a crime that is not necessarily a
crime of violence. Under Maryland law, a battery is defined as the
“unlawful beating of another,” and includes “any unlawful force
used against a person of another, no matter how slight,” State v.
Duckett, 510 A.2d 253 (Md. 1986)(emphasis in original). Some
courts call crimes like common law battery that sometimes are, and
sometimes are not, crimes of violence, divisible crimes. See,
e.g., Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003).
Daly relies on a single sentence in Lewis v. I.N.S. to support
his position: “We cannot go behind the offense as it was charged to
reach our own determination as to whether the underlying facts
amount to one of the enumerated crimes” [and thus whether
petitioner is removable under INA § 242(a)(2)(C), 8 U.S.C. §
1252(a)(2)(C)]. 194 F.3d at 543 (citing Hall v. I.N.S., 167 F.3d
852, 855 (4th Cir. 1999)). However, Daly’s reliance on Lewis is
misplaced. In Lewis, the petitioner admitted that he had committed
an aggravated felony, and the only question before the Court was
13
whether he committed it at a time when it could be a basis for his
removal. 194 F.3d at 542-43. Accordingly, the Court could
determine this issue by looking solely at INA section
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
Daly acknowledges that the Board may review the record of
conviction where there is a divisible offense. (See Pet’r Br. at
27). However, he argues that under section 240(c)(3)(B) of the
INA, 8 U.S.C. § 1229a(c)(3)(B), the record of conviction does not
include Maryland’s Application for Statement of Charges, which he
likens to a police report. (Id.) Yet precedent from this and
other courts of appeals indicate that the Application for Statement
of Charges is part of the charging document, and thus part of the
record of conviction which the Board may consider.
Based on the Court’s opinion in United States v. Kirksey, 138
F.3d 120 (4th Cir. 1998), the Board decided that it could look to
the Application for Statement of Charges to determine whether the
common law battery was a crime of violence in Daly’s case. The
issues in Kirksey were: (1) whether assault and battery convictions
constitute crimes of violence for purposes of the Sentencing
Guidelines; and (2) if they are not crimes of violence, what
portions of the state record can be consulted to determine whether
they are. Id. at 122.
In Kirksey, the Court noted that normally a categorical
approach is used to determine whether a conviction constitutes a
14
crime of violence. Id. at 124. A categorical approach relies only
on (1) the fact of conviction and (2) the definition of the prior
offense. Id. (citations omitted). However:
where the definition of the prior crime of conviction is
ambiguous and will not necessarily provide an answer to
whether the prior conviction was a crime of violence, we
look beyond the definition of the crime to examine the
facts contained in the charging document on which the
defendant was convicted.
Id.Given the definition of battery, it was unclear whether the
Court could say categorically that the conduct encompassed in the
crime of battery constitutes the use of physical force against the
person of another to the degree required to constitute a crime of
violence. Id. at 125. The Court then explained that the facts
contained in the Application for Statement of Charges/Statement of
Probable Cause were incorporated into the charging document, and
thus could be consulted to determine whether the conduct
constituted a crime of violence. Id. at 125-26. Under Maryland
law, because a statement of charges is a charging document, it must
contain “a concise and definite statement of the essential facts of
the offense with which the defendant is charged.” Id. at 126
(citing Md. Rule 4-202).4 Two of the charging documents involved
in Kirksey’s prior convictions began with the clause: “Upon the
4
Maryland Rule 4-202 provides: “A charging document shall
contain . . . a concise and definite statement of the essential
facts of the offense with which the defendant is charged . . . .”
15
facts contained in the application of [complaining witness], it is
formally charged . . . .” Kirksey, 138 F.3d at 126.
The Court explained:
By incorporating the facts of the complaining witnesses’
statements, the charging documents thus comply with
Maryland Rule 4-202. Moreover, the facts so incorporated
are filed with the charging document, as required by
Maryland Rule 4-211. Accordingly, under Maryland
procedure, the affidavits of complaining witnesses in
these circumstances were not mere testimony providing
underlying facts for the issuance of a charging document;
they served to supply the facts of the charges as
required by Maryland Rule 4-202.
Id.The Court has also held that where it is unclear from the
definition of the crime whether the crime was committed by violent
means so as to constitute a violent felony under 18 U.S.C.
924(e)(2)(B)(ii), the sentencing court must examine the charging
papers and the jury instructions. United States v. Cook, 26 F.3d
507, 509 (4th Cir. 1994). Moreover, other courts of appeals have
held that a judge may look beyond the definition of the crime to
determine whether an alien committed a crime of violence.
The Second Circuit has held that “[i]n reviewing a conviction
under a divisible statute, the categorical approach permits
reference to the record of conviction for the limited purpose of
determining whether the alien’s conviction was under the branch of
the statute that permits removal.” Dickson, 346 F.3d at 48-49.
The court went on to explain that “‘the record of conviction’ is
statutorily defined as including . . . the charging document . . .
16
.” Id. at 53 (citing INA section 240(c)(3)(B), 8 U.S.C. §
1229a(c)(3)(B)).
The Ninth Circuit has explained that “[i]f the statute of
conviction is not a categorical match because it criminalizes both
conduct that does and conduct that does not qualify as an
aggravated felony,” the court takes a “modified categorical
approach,” and conducts “a limited examination of documents in the
‘record of conviction.’” Ferreira v. Ashcroft, 390 F.3d 1091, 1095
(9th Cir. 2004). The record of conviction includes the state
charging document. Id.Finally, the Seventh Circuit has noted that “a well
established exception allows judges to look beyond the indictment
or information when it [i]s otherwise impossible to determine the
proper classification of the offense . . . and . . . the deviation
d[oes] not require a hearing to resolve contested factual issues.”
Xiong v. I.N.S., 173 F.3d 601, 605-06 (7th Cir. 1999)(allowing
judge to look at the criminal complaint not for the illegitimate
purpose of determining what petitioner could or should have been
convicted of, but rather for the legitimate purpose of determining
what he had been convicted of).
The Court’s reasoning in Kirksey applies in this case. Like
two of the charging documents involved in Kirksey’s prior
convictions, the charging document in Daly’s prior conviction
states: “Upon the facts contained in the application of
17
[complaining witness], it is formally charged . . . .” J.A. 6.
The complaining witness was the police officer who responded to a
call from Daly’s children’s school about physical child abuse.
A.R. 821. He filled out the Application for Statement of Charges
and signed it under penalties of perjury that the contents of the
Application were true to the best of his knowledge, information and
belief. Id. Based on Kirksey, the facts contained in the
Application for Statement of Charges/Statement of Probable Cause
were incorporated into the charging document, and could be
consulted to determine whether the conduct constituted a crime of
violence.
The Application reveals that Daly physically struck his four-
year-old daughter with a belt and buckle resulting in serious
facial injury and physically beat his two-year-old daughter so
severely that the beating resulted in bruising and marks on her
buttocks and thighs. A.R. 821-23; J.A. 240. A “crime of violence”
is defined to include “an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.” 18 U.S.C. § 16. The facts
contained in the Application clearly show that Daly’s underlying
conviction was for a crime of violence. We find that the Board did
not err in referencing the Application for Statement of
Charges/Statement of Probable Cause, and Daly is removable by
reason of having committed a crime of violence.
18
V.
For the reasons set forth above, we affirm the ruling of the
Board of Immigration Appeals.
AFFIRMED
19
DUNCAN, Circuit Judge, dissenting:
This court has previously held that an application for
citizenship suffices to make a permanent resident alien a national
of the United States pursuant to 8 U.S.C. § 1101(a)(22). United
States v. Morin, 80 F.3d 124, 126-27 (4th Cir. 1996). The
majority, in holding that Mr. Daly’s application for citizenship
does not make him a national of the United States pursuant to
Section 1101(a)(2), claims that Morin occurred in a different
context and proceeds to reinterpret the statute. See Maj. Op. n.3.
I do not agree that the existence of “different contexts” gives us
license to interpret the exact language in the same statute
differently in different cases.
As the Supreme Court has noted:
It would be an extraordinary principle of construction
that would authorize or permit a court to give the same
statute wholly different meanings in different cases, and
it would require a stronger showing of congressional
intent than has been made in this case to justify the
assumption of such unconfined power.
United States v. Louisiana (Louisiana Boundary Case), 394 U.S. 11,
34 (1969); see also Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972
(9th Cir. 2003) (refusing to distinguish Morin from the immigration
context simply because it was a criminal case); Department of
Energy v. Westland, 565 F.2d 685, 690 n.6 (C.C.P.A. 1977); Kehaya
v. United States, 355 F.2d 639, 641 (Ct. Cl. 1966).
While I agree with the majority that Perdomo-Padilla presents
the better reading of Section 1101(a)(2), I am compelled to follow
20
Morin until it is overruled by statutory amendment, the Supreme
Court, or the Fourth Circuit sitting en banc. See McMellon v.
United States, 387 F.3d 329, 332-33 (4th Cir. 2004) (en banc).
Under Morin, Mr. Daly is a United States national not subject to
deportation. Accordingly, I would reverse the final order of
removal. I respectfully dissent.
21