Ilai Koon Wai You v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILAI KANUTU KOON WAI YOU, No. 19-73310
Petitioner, Agency No. A097-735-242
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2020
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,** District Judge.
Ilai Koonwaiyou petitions for review of a Board of Immigration Appeals
(“BIA”) decision affirming the denial of his motion to terminate removal
proceedings. Koonwaiyou contends he is a U.S. national not subject to removal.
We disagree.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
We have jurisdiction to consider Koonwaiyou’s nationality claim pursuant to
8 U.S.C. § 1252(b)(5). If the “record presents no genuine issue of material fact
about the petitioner’s nationality, a reviewing court must decide the nationality
claim.” Chau v. INS, 247 F.3d 1026, 1029 (9th Cir. 2001) (citing 8 U.S.C.
§ 1252(b)(5)(A)). If, however, a genuine issue of material fact exists, we “must
transfer the proceeding to a district court for a de novo determination.” Id. (citing
8 U.S.C. § 1252(b)(5)(B)).
Koonwaiyou was born in Western Samoa (now Samoa) in 1967 to a Western
Samoan father and a mother who is now a U.S. national.1 Because the statutory
regime in place at the time required that a child born abroad have two U.S. national
parents to obtain derivative U.S. nationality at birth, Koonwaiyou did not obtain
U.S. nationality at birth. See Nationality Act of 1940, Pub. L. No. 76-853,
§ 204(b), 54 Stat. 1137, 1139.
Nearly two decades after Koonwaiyou’s birth, Congress lessened the
requirements for obtaining derivative U.S. nationality for children born abroad,
such that it was enough to have one U.S. national parent rather than two, so long as
1
The parties dispute whether Koonwaiyou’s mother, who obtained U.S.
national status decades after Koonwaiyou’s birth, should retroactively be
considered to have been a U.S. national at the time of Koonwaiyou’s birth.
Because Koonwaiyou’s claim of U.S. nationality fails regardless of whether his
mother’s U.S. nationality should be backdated for derivative nationality purposes,
we decline to resolve this dispute.
2
the U.S. national parent could satisfy certain physical presence requirements. See
Act of Aug. 27, 1986, Pub. L. No. 99-396, § 15(a), 100 Stat. 837 (codified at 8
U.S.C. § 1408(4)). Congress made this change retroactive, but for those like
Koonwaiyou born under the prior regime, it imposed an additional requirement:
In the case of a person born before the date of the enactment of this
Act . . . the status of a national of the United States shall not be
considered to be conferred upon the person until the date the person
establishes to the satisfaction of the Secretary of State that the person
meets the [new] requirements . . . of the Immigration and Nationality
Act . . . .
Id. § 15(b) (emphasis added).
To obtain approval from the Secretary of State to satisfy section 15(b), an
individual must apply for a U.S. passport or Consular Report of Birth Abroad. See
8 U.S. Dep’t of State, Foreign Affairs Manual § 308.9-5(e). Koonwaiyou
conceded at oral argument that he had never applied for either one. Because he did
not satisfy this statutory requirement, which Congress enacted to apply to
individuals in Koonwaiyou’s situation, we hold that Koonwaiyou is not a U.S.
national.
Koonwaiyou’s attempts to skirt this provision are unavailing. For example,
although he is correct that section 15(b) of Public Law 99-396 was not codified
alongside the physical presence requirements of section 15(a) and instead was
relegated to an “application note,” section 15(b) nonetheless remains a binding
provision of positive law. See United States v. Welden, 377 U.S. 95, 98 n.4 (1964)
3
(explaining that, for titles of the U.S. Code which have not been enacted into
positive law, “the [U.S.] Code cannot prevail over the Statutes at Large when the
two are inconsistent” (quoting Stephan v. United States, 319 U.S. 423, 426 (1943)).
Koonwaiyou also attempts to construe section 15(b) as simply providing “a
procedural mechanism for obtaining confirmation of U.S. nationality” as opposed
to imposing a statutory requirement. But such an interpretation defies the statutory
text, in which approval by the Secretary of State is plainly stated as a prerequisite
for obtaining U.S. nationality rather than an optional mechanism for clarifying
one’s status. See § 15(b), 100 Stat. at 843 (“[T]he status of a national of the United
States shall not be considered to be conferred upon the person until the date the
person establishes to the satisfaction of the Secretary of State that the person meets
the [new] requirements . . . .” (emphasis added)).
Lastly, we disagree with Koonwaiyou’s assertion that requiring Secretary of
State approval pursuant to section 15(b) would contravene Congress’s decision to
make removal proceedings the “sole and exclusive procedure” for resolving
questions of alienage and removability. 8 U.S.C. § 1229a(a)(3). We see no
inconsistency in interpreting section 15(b) as imposing a statutory requirement for
obtaining retroactive application of Public Law 99-396 while also recognizing the
jurisdiction of immigration courts and federal courts to make removal
4
determinations.2 Section 15(b) is a necessary but not sufficient condition for U.S.
national status, and federal courts still have a role in reviewing whether all
requirements are sufficiently satisfied.3
Accordingly, Koonwaiyou’s petition is DENIED.4
2
We therefore disagree with the conclusion of the BIA that it lacked
jurisdiction to rule on Koonwaiyou’s nationality claim in the absence of approval
by the Secretary of State. Because we review nationality claims de novo, however,
the BIA’s error in treating the requirement as jurisdictional rather than substantive
does not impact our analysis. Cf. Theagene v. Gonzales, 411 F.3d 1107, 1110 (9th
Cir. 2005) (holding that, pursuant to the plain language of 8 U.S.C. § 1252(b)(5), a
court of appeals “must evaluate a petitioner’s claim to United States nationality
regardless of whether the claim was raised below”).
3
One could imagine a situation in which the Secretary of State denies a
passport application based on a legally erroneous interpretation of Public Law 99-
396. Koonwaiyou contended at oral argument that this possibility should cause us
to interpret section 15(b) differently, or to read into the statute an avenue for
judicial review, for reasons of constitutional avoidance. We need not consider
these contentions here, however, because Koonwaiyou never even applied to the
Secretary of State.
4
Koonwaiyou also filed a motion for a stay of removal pending
consideration of his petition for review. That motion is denied as moot. A
temporary stay of removal remains in effect, however, until issuance of the
mandate or further court order.
5