Filed: May 02, 2008
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 2, 2008 THOMAS K. KAHN No. 07-14596 CLERK Non-Argument Calendar _ D. C. Docket No. 07-20092-CV-UUB DERRICK LIVINGSTONE WILLIAMS, Plaintiff-Appellant, versus U.S. DEPT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (May 2, 2008) Before TJOFLAT,
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 2, 2008 THOMAS K. KAHN No. 07-14596 CLERK Non-Argument Calendar _ D. C. Docket No. 07-20092-CV-UUB DERRICK LIVINGSTONE WILLIAMS, Plaintiff-Appellant, versus U.S. DEPT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (May 2, 2008) Before TJOFLAT, ..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 2, 2008
THOMAS K. KAHN
No. 07-14596
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-20092-CV-UUB
DERRICK LIVINGSTONE WILLIAMS,
Plaintiff-Appellant,
versus
U.S. DEPT OF HOMELAND SECURITY,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 2, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Derrick Williams appeals from the dismissal of his complaint seeking
review pursuant to 8 U.S.C. § 1421(c) of the denial of his application for
naturalization. Williams’s application was denied by the Department of Homeland
Security, Bureau of Citizenship and Immigration Services for lack of good moral
character required under 8 C.F.R. § 316.10(b)(1)(ii) because he had been convicted
of an aggravated felony on June 24, 1992.
We review de novo a “district court’s grant of a motion to dismiss under
[Fed. R. Civ. P.] 12(b)(6) for failure to state a claim, accepting the allegations in
the complaint as true and construing them in the light most favorable to the
plaintiff.” Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir.
2006).
I. DISCUSSION
In order to be eligible for naturalization, an alien must establish, inter alia,
that he, “[f]or all relevant time periods under this paragraph, has been and
continues to be a person of good moral character . . . .” 8 C.F.R. § 316.2(a)(7).
“An applicant shall be found to lack good moral character, if the applicant has been
. . . [c]onvicted of an aggravated felony as defined in section 101(a)(43) of the
[Immigration and Nationality] Act on or after November 29, 1990.” 8 C.F.R.
§ 316.10(b)(1)(ii).
2
These rules derive from § 101(f) of the Immigration and Nationality Act
(“INA”) providing “[n]o person shall be regarded as, or found to be, a person of
good moral character who . . . at any time has been convicted of an aggravated
felony (as defined in subsection (a)(43) of this section).” See also 8 U.S.C. §
1101(f). The 1990 amendments to the INA that established this permanent,
statutory bar to good moral character for aliens convicted of certain enumerated
aggravated felonies also limited the application of this amendment to those
convictions that occurred on or after the effective date of the Act, November 29,
1990. See Immigration Act of 1990, Pub. L. No. 101-649, § 509(b), 104 Stat.
4978, 5051 (1990); see also Matter of Reyes, 20 I&N Dec. 789, 792 (BIA 1994).
Williams was initially convicted of trafficking in cocaine by a state court in
Florida on May 3, 1990. However, following his successful appeal, the final
judgments of conviction and sentence were vacated on June 1, 1992. After a new
trial, Williams was convicted on June 24, 1992 of trafficking in cocaine, sentenced
to pay a $50,000 fine and to be imprisoned for ten years. The judgment of
conviction and sentence stated: “DONE AND ORDERED in Open Court at Dade
County, Florida this 24th day of June, 1992. NUNC PRO TUNC: May 3, 1990.”
On appeal, Williams does not dispute that his conviction qualifies as an
3
aggravated felony as defined according to § 101(a)(43) of the INA.1 Rather,
Williams argues that because the judgment of his June 24, 1992 conviction was
issued nunc pro tunc to May 3, 1990, the statutory bar to good moral character
should not apply to him because the judgment’s effective date of May 3, 1990
means that his conviction occurred before the November 29, 1990 effective date of
the 1990 amendments to the INA.
Williams’s argument would have merit if the state court had issued the
judgment on the 1992 conviction nunc pro tunc to correct a clerical error or to
document a previously taken action. See Sullivan v. State, 898 So. 2d 105, 107 n.2
(Fla. 2d Dist. Ct. App. 2005) (“A court may correct clerical mistakes in its own
judgments and records, nunc pro tunc . . . ”). Here however, Williams successfully
appealed his original May 3, 1990 conviction for trafficking in cocaine and as a
result the final judgments of conviction and sentence ultimately were vacated on
June 1, 1992. He received a new trial and was convicted for trafficking in cocaine
on June 24, 1992. Although the trial court included the language “NUNC PRO
TUNC: May 3, 1990” in Williams’s June 24, 1992 judgment, it was not merely
correcting a clerical mistake or documenting a previously taken action as there was
1
"[I]llicit trafficking in a controlled substance . . . including a drug trafficking crime" is
an "aggravated felony." 8 U.S.C. § 1101(a)(43)(B).
4
nothing to which the nunc pro tunc order could refer.2 Accordingly, the district
court did not err in concluding that Williams is statutorily barred from establishing
good moral character under 8 C.F.R. § 316.10(b)(1)(ii) on the basis that he was
convicted of an aggravated felony after November 29, 1990, and thereby
dismissing his complaint for failure to state a legal claim on which relief could be
granted.
Williams additionally argues that the dismissal of his complaint penalized
him for exercising his constitutional right to appeal his conviction, in that had he
not appealed his 1990 conviction, he would not be statutorily barred from
qualifying for naturalization. The Supreme Court has stated that “the power to
make someone a citizen of the United States has not been conferred upon the
federal courts . . . as one of their generally applicable equitable powers,” but that
“it has been given them as a specific function to be performed in strict compliance
with the terms of an authorizing statute which says that ‘[a] person may be
naturalized . . . in the manner and under the conditions prescribed in this
2
We have stated that a "nunc pro tunc order merely recites court actions previously
taken but not properly or adequately recorded." Cypress Barn, Inc. v. Western Elec. Co., 812
F.2d 1363, 1364 (11th Cir. 1987). Florida courts treat nunc pro tunc orders similarly. See, e.g.,
Whack v. Seminole Mem'l Hosp.,
456 So. 2d 561, 563-64 (Fla. 5th Dist. Ct. App. 1984)
("[w]hen applied to the entry of a legal order, [a nunc pro tunc order] normally refers, not to a
new or de novo decision, but to the trial judge's previous action of which there is not a sufficient
record"); Merritt v. Merritt, 802 So. 2d 1206, 1209 (Fla. 2d Dist. Ct. App. 2002) ("where an
order does not merely correct clerical errors or omissions, but . . . of itself constitutes a ruling not
previously made in fact, it should not be given retrospective effect").
5
subchapter, and not otherwise.’ ” I.N.S. v. Pangilinan, 486 U.S. 875, 883-84
(1988) (quoting 8 U.S.C. § 1421(d)) . The Supreme Court acknowledged that an
alien can become a U.S. citizen “only upon the terms and conditions specified by
Congress” and that the duty of the courts “is rigidly to enforce the legislative will
in respect of a matter so vital to the public welfare.”
Id. at 884. “Neither by
application of the doctrine of estoppel, nor by invocation of equitable powers, nor
by any other means does a court have the power to confer citizenship in violation
of [the limitations set by Congress.]”
Id. at 885.
We agree that had Williams’s original May 3, 1990 judgment of conviction
for trafficking in cocaine and sentence not been disturbed, it in itself would not
have been a statutory bar to Williams’s establishment of the requisite good moral
character for naturalization under § 101(f) of the INA, 8 U.S.C. § 1101(f).
However, his subsequent conviction in 1992, following a successful appeal
granting him a new trial, has rendered him statutorily ineligible for naturalization.
Because we are not at liberty to disregard the statutory terms and conditions that
Congress has specified for conferring citizenship, such as those pertaining to the
establishment of good moral character, we cannot exercise our equitable powers to
confer citizenship where the governing statutes would prohibit the same. Thus, we
conclude that the district court did not err in dismissing Williams’s complaint for
6
failure to state an equitable claim on which relief could be granted.
II. CONCLUSION
Because Williams is statutorily barred from establishing good moral
character necessary for naturalization due to his June 24, 1992 conviction of an
aggravated felony, the district court did not err in dismissing his complaint for
failure to state a claim on which relief could be granted. Williams also has not
stated an equitable claim on which a court could grant him the relief he is seeking.
Accordingly, the district court’s order is affirmed.
AFFIRMED.
7
