Sunny Viloria v. Loretta E. Lynch , 808 F.3d 764 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNNY CALAOGAN VILORIA, AKA No. 11-73725
Sonny Viloria Nabarette, AKA
Sunny Nabarette, AKA Sunny V. Agency No.
Nabarette, AKA Sunny Vicoria A040-495-721
Nabarrete, AKA Sunny Viloria
Nabarrette,
Petitioner, OPINION
v.
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 9, 2015—Honolulu, Hawaii
Filed December 21, 2015
Before: Kim McLane Wardlaw, Marsha S. Berzon,
and John B. Owens, Circuit Judges.
Opinion by Judge Berzon
2 VILORIA V. LYNCH
SUMMARY*
Immigration
The panel dismissed Sunny Calaogan Viloria’s petition
for review of the Board of Immigration Appeals’ decision
finding that he failed to establish derivative United States
citizenship.
The panel held that this court lacks jurisdiction to resolve
Viloria’s citizenship claim on appeal of the BIA’s decision
vacating the Immigration Judge’s order terminating removal
proceedings and remanding, because there was no final order
of removal. The panel held that the statutory provision for
review of nationality claims, 8 U.S.C. § 1252(b)(5), did not
create an exception to this court’s limitation to review of final
removal orders.
COUNSEL
Manuel Q. Diones (argued), Law Offices of Manuel Q.
Diones, LLLC, Honolulu, Hawaii, for Petitioner.
Yanal Harbi Yousef (argued); Stuart F. Delery, Acting
Assistant Attorney General, Civil Division; Cindy S. Ferrier,
Assistant Director; Timothy G. Hayes, Trial Attorney, Office
of Immigration Litigation, United States Department of
Justice, Washington, D.C., for Respondent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VILORIA V. LYNCH 3
OPINION
BERZON, Circuit Judge:
Petitioner Sunny Calaogan Viloria is the adopted son of
a natural-born U.S. citizen father and a naturalized U.S.
citizen mother. Born in the Phillippines in 1978, he entered
the United States on an IR4 orphan visa at age seven. In June
2010, the government served him with a Notice to Appear
charging him as removable based on his conviction for a
third-degree drug offense seven years earlier. See 8 U.S.C.
§ 1227(a)(2)(B)(i).
Viloria argued before the Immigration Judge (“IJ”) that he
was not removable because he obtained automatic derivative
citizenship from his parents upon his adoption. The IJ agreed
and terminated removal proceedings. The government
appealed the termination order to the Board of Immigration
Appeals (“BIA”), which concluded that Viloria had not met
his burden to establish citizenship, vacated the IJ’s
termination order, and remanded.
Viloria now petitions this court for review of his
citizenship claim. As we explain below, because Viloria has
not been ordered removed, we lack jurisdiction.
I.
Viloria was admitted to the United States in June 1986, in
Honolulu, Hawaii, on an IR4 orphan visa. He immediately
entered into the custody of his adoptive parents. The
adoption became final in August 1987. Viloria has resided in
the United States continuously since his adoption and has
remained unmarried.
4 VILORIA V. LYNCH
When he was twenty-four years old, Viloria pleaded no
contest to promoting a dangerous drug in the third degree,
Haw. Rev. Stat. § 712-1243, in connection with his
possession of methamphetamine. The government later filed
a Notice to Appear in the Honolulu Immigration Court,
charging Viloria as removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) as an alien convicted of a controlled
substance violation other than possession for personal use of
less than thirty grams of marijuana.
At a hearing before the IJ, Viloria contested his
removability on the ground that he obtained derivative
citizenship through his adoptive parents. At the time of
Viloria’s adoption, the statutory provision for derivative
citizenship provided that:
(a) A child born outside of the United States,
one of whose parents at the time of the child’s
birth was an alien and the other of whose
parents then was and never thereafter ceased
to be a citizen of the United States, shall, if
such alien parent is naturalized, become a
citizen of the United States, when—
(1) such naturalization takes place while
such child is unmarried and under the age
of eighteen years; and
(2) such child is residing in the United
States pursuant to a lawful admission for
permanent residence at the time of
naturalization or thereafter and begins to
reside permanently in the United States
while under the age of eighteen years.
VILORIA V. LYNCH 5
(b) Subsection (a)(1) of this section shall
apply to an adopted child only if the child is
residing in the United States at the time of
naturalization of such adoptive parent, in the
custody of his adoptive parents, pursuant to a
lawful admission for permanent residence.
8 U.S.C. § 1431 (1986).
Viloria admitted that he did not meet the criteria under
section 1431(b) because his adoptive mother—like him, a
Filipino citizen by birth—was naturalized in 1983, after
Viloria’s birth but before Viloria began residing in the United
States in his adoptive parents’ custody. He argued, however,
that subsection (a) of section 1431, rather than subsection (b),
applied to him, because he met the statutory definition of
“child”:
The term “child” means an unmarried person
under twenty-one years of age and includes a
child legitimated under the law of the child’s
residence or domicile, or under the law of the
father’s residence or domicile, whether in the
United States or elsewhere, and, except as
otherwise provided in sections 1431 to 1434
of this title, a child adopted in the United
States, if such legitimation or adoption takes
place before the child reaches the age of
sixteen years, and the child is in the legal
custody of the legitimating or adopting parent
or parents at the time of such legitimation or
adoption.
6 VILORIA V. LYNCH
8 U.S.C. § 1101(c)(1) (1982). Because he was an unmarried
person under the age of twenty-one in the legal custody of his
parents at the time of his adoption, he was a “child” under
section 1101(c)(1); therefore, he contended, for purposes of
obtaining citizenship he was subject to section 1431(a), not
section 1431(b).
The IJ noted that the definition of “child” in section
1101(c)(1) applied “except as otherwise provided” by
sections 1431 and 1434, and that the “except” clause could be
read to preclude section 1101(c)(1) from applying when
derivative citizenship is at stake. But the IJ was persuaded by
Viloria’s argument that section 1431(b) supplemented, rather
than replaced, the definition of “child” in section 1101(c)(1)
as it applied to adopted children. That is, the IJ held that
former section 1431(a) was applicable both to an adopted
child who met the criteria of section 1431(b) and to an
adopted child who met the definition of “child” in section
1101(c)(1).
After the IJ terminated removal proceedings, the
government appealed. The BIA sustained the appeal,
reasoning that under the plain language of former section
1431, adopted children were required to meet the criteria
under subsection (b) to benefit from subsection (a). It
rejected Viloria’s argument that he was a child under section
1101(c)(1), indicating that, under the plain language of that
statute, section 1431 was an “except[ion]” to the definition of
child, not a supplement. Accordingly, the BIA vacated the
IJ’s order and remanded for further proceedings.
Viloria then petitioned this court for review. The
government filed a motion to dismiss for lack of a final order
VILORIA V. LYNCH 7
of removal. We denied the motion without prejudice to
renewal of the jurisdictional argument in the answering brief.
II.
We dismiss the petition for lack of jurisdiction.
It is well established that this court’s jurisdiction over
removal proceedings is limited to review of final orders of
removal. In relevant part, 8 U.S.C § 1252(b)(9) provides:
Judicial review of all questions of law and
fact, including interpretation and application
of constitutional and statutory provisions,
arising from any action taken or proceeding
brought to remove an alien from the United
States under this subchapter shall be available
only in judicial review of a final order under
this section.
(Emphasis added).
That limitation applies even if it appears a removal order
is likely forthcoming on remand. Alcala v. Holder, for
example, held that this court lacked jurisdiction over the
BIA’s order affirming an IJ’s grant of the government’s
motion to dismiss removal proceedings so that the
government could reinstate a prior order of removal.
563 F.3d 1009, 1013 (9th Cir. 2009). Rejecting the
petitioner’s argument that the court had jurisdiction because
the prior order of removal was likely to be reinstated, Alcala
reaffirmed that “[t]he carefully crafted congressional scheme
governing review of decisions of the BIA limits this court’s
jurisdiction to the review of final orders of removal,” even if
8 VILORIA V. LYNCH
the petitioner raises a constitutional claim or question of law.
Id. at 1013, 1016. And Abdisalan v. Holder, a recent en banc
decision of this court, confirmed that “[w]hen the BIA
remands to the IJ for any reason, no final order of removal
exists until all administrative proceedings have concluded.”
774 F.3d 517, 526 (9th Cir. 2014), as amended (Jan. 6, 2015).
Against this backdrop, Viloria asserts that this court
nonetheless has jurisdiction to resolve his citizenship claim
on appeal of the BIA’s order vacating the IJ’s order
terminating removal proceedings. Viloria concedes that no
final order of removal has issued. He maintains, however,
that the statutory provision for review of nationality claims,
section 1252(b)(5), creates an exception to this court’s
limitation to review of final removal orders. We disagree.
First, the statute itself belies Viloria’s argument. Section
1252 is headed “Judicial review of orders of removal.”
(Emphasis added). Section 1252(b) is entitled “Requirements
for review of orders of removal” and further states that it
applies “[w]ith respect to review of an order of removal.”
(Emphases added). Section 1252(b)(5)(A) states that “[i]f 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”; section 1252(b)(5)(B) instructs the court to transfer
proceedings to the district court if “a genuine issue of
material fact about the petitioner’s nationality is presented”;
and section 1252(b)(5)(C) limits consideration of a
nationality claim to the manner provided in sections
1252(b)(5)(A) and (B). Finally, as noted above, section
1252(b)(9) states that “[j]udicial review of all questions of
VILORIA V. LYNCH 9
law and fact . . . shall be available only in judicial review of
a final order under this section.” (Emphasis added).
Section 1252(b)(5) does speak directly to nationality
claims. But nothing in it indicates that it creates an exception
for nationality claims from section 1252(b)(9)’s emphatic
jurisdictional restriction. Nor does section 1252(b)(5)
affirmatively grant broader jurisdiction than is otherwise
provided by section 1252. Instead, the provisions of section
1252(b)(5) govern a court proceeding in accordance with
section 1252—that is, a proceeding initiated after entry of an
order of removal.
Moreover, Congress contemplated the circumstances of
individuals who wish to bring citizenship claims, yet
provided that if a removal proceeding is pending or if the
citizenship issue arose in such a proceeding, questions of
citizenship should be resolved within that proceeding. See
8 U.S.C. § 1503(a). Section 1503 enables an individual to
file a declaratory judgment action in federal district court
seeking a declaration of citizenship. See id. But the statute
also expressly states that “no such action may be instituted in
any case if the issue of such person’s status as a national of
the United States (1) arose by reason of, or in connection with
any removal proceedings . . . , or (2) is in issue in any such
removal proceeding.” This limitation on initiating the
resolution of citizenship claims outside of removal
proceedings, where those proceedings are in process, further
evidences Congress’s intent to restrict, as far as possible,
review of citizenship claims arising in immigration cases in
instances in which final orders of removal have not been
entered.
10 VILORIA V. LYNCH
Second, we have interpreted section 1252(b)(5) not to
expand the limitation on jurisdiction generally established by
section 1252. Iasu v. Smith declined to review a section
1252(b)(5) nationality claim brought in a habeas proceeding
filed after the REAL ID Act eliminated habeas review of
removal orders. 511 F.3d 881, 884, 889 (9th Cir. 2007). The
petitioner suggested that because the REAL ID Act left
section 1252(b)(5) intact, Congress had meant to confer
special jurisdiction on the courts of appeals to review
nationality claims. Id. at 889. Iasu disagreed, concluding
that “[t]he plain language of § 1252(b)(5) requires that upon
a petition for review of the BIA’s final order of removal, we
must evaluate a petitioner’s claim to United States
nationality.” Id. (quoting Theagene v. Gonzales, 411 F.3d
1107, 1110 (9th Cir. 2005)). Because the petitioner “failed to
file a petition for review challenging his final order of
deportation,” we lacked jurisdiction to review his claim. Id.
at 890.
Third, although no case in this circuit has addressed the
precise question presented here, several cases have confirmed
the general rule that this court does not have jurisdiction to
review a citizenship claim unless a final order of removal has
been entered. See Abdisalan, 774 F.3d at 523, 526; Anderson
v. Holder, 673 F.3d 1089, 1094–95 (9th Cir. 2012); Alcala,
563 F.3d at 1013.
We have, however, broadly interpreted the term “final
order of removal” in section 1252 where the petitioner had no
other forum for review of his citizenship claim. See
Anderson, 673 F.3d 1089. Anderson addressed whether this
court could review an ultra vires order of the BIA removing
the petitioner after it reversed the IJ’s order terminating
removal proceedings. 673 F.3d at 1094–95. The BIA
VILORIA V. LYNCH 11
disagreed with the IJ’s conclusion that the petitioner had
presented sufficient evidence of U.S. citizenship, but, rather
than remanding to the IJ to determine the petitioner’s
removability, the BIA entered a removal order of its own. Id.
at 1094. Recognizing that the BIA’s order was “a legal
nullity,” id., Anderson held that it was “nonetheless ‘a final
order of removal’ for the purpose of conferring jurisdiction
under 8 U.S.C. § 1252(a).” Id. Anderson recognized that any
time a meritorious citizenship claim under section 1252(b)(5)
is at issue, the underlying order of removal is technically a
legal nullity, because “[a]n order of removal issued against a
U.S. citizen is always ultra vires and void.” Id. at 1096. But
because the order’s “practical and concrete effect [was] to
deprive a United States citizen . . . of his right to reside in this
country,” and the order had “been treated as a final order of
removal by the agency officials who executed it,” it was “‘a
final order of removal’ within the meaning of § 1252(a).” Id.
at 1095–96. Thus, the court held that it had jurisdiction to
review the “null” order. Id. at 1096.
This case is nothing like Anderson. First, no
administrative order that purports to be a “final order of
removal” has been issued, invalid or not. So no cognizable
question of statutory interpretation arises as to the reach of
the “final order of removal” concept in section 1252. Second,
in treating an ultra vires order in Anderson as a valid final
order of removal, the court was motivated by the concern
that, if it did not address the claim before it, the petitioner
would be deprived entirely of a judicial evaluation of his
claim.1 See id. at 1095–96. Refusing to review the
1
Courts resolving issues similar to those presented here have expressed
concern that, in certain circumstances, no final order of removal will be
entered, and so a petitioner with a non-frivolous claim to U.S. citizenship
12 VILORIA V. LYNCH
petitioner’s claim would have abrogated the court’s role as
“the final arbiter of constitutional matters,” Anderson
reasoned, and would violate the “[c]onstitution[al] mandate[]
that any person with a non-frivolous claim to American
citizenship receive a judicial evaluation of that claim.” Id. at
1095 (quoting Rivera v. Ashcroft, 394 F.3d 1129, 1136 (9th
Cir. 2005), superseded by statute on other grounds, REAL ID
Act, Pub. L. No. 109-13, 119 Stat. 231, § 106(c) (2005)).
Here, in contrast, Viloria will likely later have a judicial
forum in which to attempt to prove his citizenship. He has
already litigated his citizenship claim before the IJ and BIA.
If and when the agency enters a final order of removal against
him, he will have the opportunity to seek review of that order
in this court, including the underlying adverse determination
regarding his citizenship.2
Fourth, we acknowledge that requiring an individual with
a non-frivolous claim to U.S. citizenship to undergo a
prolonged administrative process before asserting that claim
in an Article III court, may, if the claim proves valid, long
delay the security afforded an individual by the recognition
that he or she is a U.S. citizen. But strong policy
will have no forum in which to prove citizenship. See U.S. Const., art. I,
§ 9 cl. 2; e.g., Anderson, 673 F.3d at 1095; Iasu, 511 F.3d at 887–88,
892–93.
2
We note that Viloria could prevail before the BIA on a ground other
than his citizenship and therefore not become subject to a final order of
removal. Whether he could then bring some action to establish his
citizenship—under section 1503(a) or via some other vehicle—is not a
question before us. In such an instance, there might well be a
constitutional imperative to provide a judicial forum for hearing the claim
of citizenship. See n.1, supra. The statutory provisions would be
interpreted with that concern in mind, as in Anderson.
VILORIA V. LYNCH 13
considerations also weigh against the outcome Viloria seeks.
For instance, in ruling that a partial remand order of the BIA
was not reviewable, Abdisalan noted that “considerations of
judicial efficiency . . . weigh in favor of reviewing a single
final order of removal.” 774 F.3d at 526. That rule “furthers
the same policies as the finality rule embodied in 28 U.S.C.
§ 1291.” Id. (quoting Nat’l Steel & Shipbuilding Co. v. Dir.,
Office of Workers’ Comp. Programs, 626 F.2d 106, 107 (9th
Cir. 1980)).
Similarly, Theagene held that a petitioner need not
exhaust his citizenship claim in proceedings before the
agency before a court of appeals addresses the claim on a
petition for review. 411 F.3d at 1110. Theagene explained
that, because section 1252(d)(1) states “only [that] an ‘alien’
may be required to exhaust administrative remedies,” the
court had jurisdiction to determine whether the petitioner was
in fact an alien subject to the exhaustion requirement. Id.(emphasis added); accord Omolo v. Gonzales, 452 F.3d 404,
407 (5th Cir. 2006); Moussa v. INS, 302 F.3d 823, 825 (8th
Cir. 2002); Bowrin v. INS, 194 F.3d 483, 486 (4th Cir. 1999).
While one could argue that Theagene supports the general
proposition that section 1252(b)(5) permits exceptions to
ordinary procedural requirements, the court emphasized that
its decision did not diminish the importance of ensuring “that
petitioners not bypass administrative procedures available as
of right before proceeding with judicial review.” 411 F.3d at1110 n.4. It characterized section 1252(b)(5) as “a fail safe
against inadvertent or uninformed execution of a final order
of removal.” Id. Policy concerns do not outweigh the wealth
of authority requiring a final order of removal to confer
jurisdiction on this court.
14 VILORIA V. LYNCH
One final note: Viloria is not without recourse if, as he
fears might happen, the Department of Homeland Security
detains him during the pendency of removal proceedings. If
those circumstances arise, he may file a habeas petition,
which a federal district court will have jurisdiction to
consider. See Flores-Torres v. Mukasey, 548 F.3d 708 (9th
Cir. 2008) (reversing a district court’s dismissal, for lack of
jurisdiction, of an immigration petitioner’s habeas petition,
where the detained petitioner claimed U.S. citizenship and
was detained during the pendency of removal proceedings).3
III.
For the foregoing reasons, we conclude that we lack
jurisdiction to consider Viloria’s citizenship claim.
DISMISSED for lack of jurisdiction.
3
In addition, procedural safeguards protect against unjustified prolonged
detention. Specifically, Viloria would have the opportunity to contest any
detention through statutorily authorized or judicially mandated bond
hearings, in which the government would be required to show that he is
a danger to himself or others or is a flight risk. See Rodriguez v. Robbins,
804 F.3d 1060 (9th Cir. 2015).