06-4069-ag
Poole v. Mukasey



                          UNITED STATES COURT OF APPEALS

                              FOR THE SECOND CIRCUIT

                                 August Term 2007

(Submitted: February 5, 2008                    Decided: March 27, 2008)

                              Docket No. 06-4069-ag

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RODWELL ARLIE ANTHONY POOLE,
          Petitioner,

                     v.

MICHAEL B. MUKASEY,* Attorney General
of the United States, DEPARTMENT OF
HOMELAND SECURITY, and IMMIGRATION
AND CUSTOMS ENFORCEMENT (ICE),
          Respondents.
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Before: NEWMAN, WINTER, and B.D.PARKER, Circuit Judges.

        Petition for review of the August 2, 2006, decision of the Board

of Immigration Appeals dismissing as untimely challenges to an order

of removal without considering a claim for derivative citizenship.

        Dismissed in part and remanded in part.

                              Jennifer Oltarsh, Oltarsh & Associates, P.C.,
                                New York, N.Y., submitted a brief for
                                Petitioner.


        *
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney

General Michael B. Mukasey is automatically substituted for former Attorney

General Alberto R. Gonzales as a respondent in this case.
                        Carol Federight, Senior Litigation Counsel,
                          Peter D. Keisler, Asst. Atty. General, M.
                          Jocelyn Lopez Wright, Asst. Director, Civil
                          Division, Office of Immigration Litigation,
                          United   States   Department  of   Justice,
                          Washington, D.C., submitted a brief for
                          Respondents.


JON O. NEWMAN, Circuit Judge.

     This petition to review a decision of the Board of Immigration

Appeals (“BIA”) primarily concerns the proper disposition of the

petitioner’s claim for derivative citizenship.   Rodwell Arlie Anthony

Poole, a native and citizen of Guyana, who has been a lawful permanent

resident of the United States since 1976, seeks review of a decision

of the BIA, dismissing as untimely his appeal from an Immigration

Judge’s (“IJ”) order of removal. We lack jurisdiction to consider all

of his claims except his claim for derivative citizenship, as to which

we remand.   We therefore dismiss in part and remand in part.

                                Background

     Poole was admitted to the United States as a lawful permanent

resident in 1976, at the age of ten, along with his mother. His

parents immigrated from Guyana and never married. Poole was raised by

his mother through whom he claims derivative citizenship. She applied

for citizenship in November 1982, when Poole was 16.   Her citizenship

application was granted on November 27, 1984, nine months after




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Poole’s eighteenth birthday.2 Poole has three children, aged nineteen,

fourteen, and ten, all of whom are citizens.

     Between April 1997 and January 2000, Poole was convicted of

several     crimes    in    New    York   state     court    including:    third-degree

misdemeanor        assault,    second-degree        felony    assault,     first-degree

reckless     endangerment         and   third-degree    criminal    possession      of    a

weapon.

     In     June    2002,     Poole     was   served   with    notice     to   appear    in

immigration court to answer the charges that he is subject to removal

as an alien convicted of an aggravated felony and as                            an alien

convicted for a firearms offense.               See 8 U.S.C. § 1227(a)(2)(A)(iii)

(aggravated felon); 

(firearms offense).

     Poole admitted the allegations against him, except for the

allegation that he is an alien.               He contended that he was entitled to

derivative citizenship through his mother, or, alternatively, that he

is entitled to be considered a national of the United States on the

theory that he would have derived citizenship through his mother but

for the delay of the Immigration and Naturalization Service (“INS”) in

processing her citizenship application.

     On May 5, 2006, after a series of hearings in immigration court



     2
         Although not relevant to this appeal, Poole’s father became a

United States citizen on March 22, 1994.

                                              -3-
beginning in 2002, the IJ issued a written decision, ruling that Poole

is not a citizen or national of the United States and that he is

removable as charged and not entitled to any relief.                        Specifically,

the IJ, citing INS v. Miranda, 

(1982), ruled that because

Poole had not shown that the INS committed “affirmative misconduct” in

processing his mother’s citizenship application, he could not make a

claim under former section 321 of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1432(a), that he was entitled to derivative

citizenship.    The IJ then found that Poole’s conviction for second-

degree    assault   was    a    crime     of    violence       qualifying       him    as   an

“aggravated felon,” and that the crime was also a “particularly

serious   crime,”   thus       rendering       Poole   ineligible         for   asylum      and

withholding    of   removal      under    8    U.S.C.     §    1231(b)(3)(A)          and   the

Convention    Against     Torture    (“CAT”).       The       IJ   then   denied      Poole’s

remaining claim for deferral of removal under the CAT, noting that

nothing in the record supported the conclusion that Poole would be

subjected to torture if returned to Guyana. Accordingly, the IJ

ordered him removed to Guyana.

     Poole had until June 5, 2006, the next business day following the

thirtieth day after the immigration judge mailed his decision, to file

his appeal with the BIA. See 8 C.F.R. § 1240.15.                   His appeal was filed

on June 7, 2006, two days late.                In August 2006, the BIA dismissed

Poole’s appeal as untimely.              The BIA made no reference to Poole’s

                                           -4-
claim of derivative citizenship.

                                   Discussion

     Jurisdiction. Our jurisdiction turns on the nature of the claims

presented.    Poole challenges his removal on the ground that his

second-degree assault conviction is not an aggravated felony and

because he is a citizen.         With respect to a removal order against a

non-citizen   who    is   removable    by    reason    of   having   committed   an

aggravated felony, we lack jurisdiction unless the petition raises a

constitutional      claim   or    a   question        of    law.   See   8   U.S.C.

§ 1252(a)(2)(C), (D); see Pierre v. Gonzales, 

, 113 (2d

Cir. 2007).   Thus, except for an obstacle concerning exhaustion of

remedies, which we consider below, we would have jurisdiction to

resolve the legal issue of whether the crime Poole committed is an

aggravated felony. See       Blake v. Gonzales, 

, 155-56 (2d

Cir. 2007).

     With respect to Poole’s claim to derivative citizenship, this too

presents an issue of law, over which we retain jurisdiction under

section 1252(a)(2)(C). See Ashton v. Gonzales, 

, 97 (2d

Cir. 2005).

     Exhaustion of remedies.          The Government contends that Poole’s

appeal of the IJ’s decision to the BIA was untimely and that, as a

result, Poole failed to exhaust his administrative remedies, thus

depriving this court of jurisdiction to review his legal challenge to

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the removal order.   Poole responds that the Federal Rules of Civil

Procedure provided him with an additional three days to file his

appeal to the BIA.

     The regulations governing procedures before IJs and the BIA

provide that a notice of appeal to the BIA of an IJ’s decision “shall

be filed directly with the Board . . . within 30 calendar days after

the stating of an Immigration Judge’s oral decision or the mailing of

an Immigration Judge’s written decision.” 8 C.F.R. § 1003.38(b). “If

the final date for filing falls on a Saturday, Sunday, or legal

holiday, [the] appeal time shall be extended to the next business

day.” 

the BIA received the notice of appeal is the date

it is considered filed. 

     The IJ issued his decision on May 5, 2006. The decision was

mailed on that date and stated on its cover that a notice of appeal is

due “within 30 calendar days of the date of the mailing of this

written decision.”   Poole thus had until June 5, 2006, to file his

appeal.   The BIA received Poole’s notice of appeal on June 7, 2006,

and denied the appeal as untimely.     The BIA’s order stated that the

IJ’s decision was final, and that any party wishing to challenge the

finding of untimeliness must file a motion to reconsider with the BIA,

and that any other motion should be filed with the IJ.   Poole did not

file any subsequent motions.

     Poole presents two arguments in response to the BIA’s ruling that

                                 -6-
his administrative appeal was untimely.    First, he argues that his

counsel did not receive the IJ’s decision until “almost two weeks

later.”   This assertion, which appears only in Poole’s brief to this

Court, need not be considered since its factual basis is not in the

record. See 8 U.S.C. 1252(b)(4)(A) (“[T]he court of appeals shall

decide the petition only on the administrative record on which the

order of removal is based.”). Moreover, nothing in the record compels

the conclusion that the decision was not mailed on May 5, 2006, as

would be required to reverse a factual determination made by the BIA

as to timeliness. See 8 U.S.C. 1252(b)(4)(A).

     Second, Poole claims that the “three-day rule” of Rule 6(e) of

the Federal Rule of Civil Procedure 6(e) should apply here.   Rule 6(e)

provides: “Whenever a party must or may act within a prescribed period

after service and service is made under Rule 5(b)(2)(B), (C), or (D),

3 days are added after the prescribed period would otherwise expire

under subdivision (a).”   This issue was never raised before the BIA,

and is thus unexhausted and cannot be raised here for the first time.

See Lin Zhong v. United States DOJ, 

, 107 (2d Cir. 2006).

Moreover, the Federal Rules of Civil Procedure do not apply to

proceedings before the BIA. See Fed. R. Civ. P. 1 (“[t]hese rules

govern the procedure in . . . the United States district courts”);

Kalejs v. INS, 

, 447 (7th Cir. 1993) (Federal Rules of

Civil Procedure do not apply to deportation proceedings); In re Magana

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17 I. & N. Dec. 111, 115 (B.I.A. 1979) (same); In re McNeil, 11 I. &

N. Dec. 378, 389 (B.I.A. 1965) (same); see also Zhong Guang Sun v.

U.S. Department of Justice, 

, 108 (2d Cir. 2005) (Federal

Rules of Appellate Procedure inapplicable to deportation proceedings).

Finally, even if Rule 6(e) of the Civil Rules were applicable, it

would add three days only to a time period that begins running on the

date of “service,” and thus would not extend Poole’s    30-day appeal

period, which began running on the date of mailing. See Hatchell v.

United States, 

, 246 (9th Cir. 1985).

     Poole’s objections to the BIA’s untimeliness ruling therefore

lack merit.   As a result his challenge to the removal order in this

Court remains unexhausted.    “A court may review a final order of

removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

“Statutory exhaustion requirements are mandatory, and courts are not

free to dispense with them.” Bastek v. Fed. Crop Ins., 

, 94

(2d Cir. 1998). In particular, the INA's exhaustion requirement

constitutes a “clear jurisdictional bar, and admits of no exceptions.”

Mejia-Ruiz v. INS, 

, 362 (2d Cir. 1995) (internal quotation

marks omitted). Accordingly, Poole’s removal and CAT claims are

unexhausted, and we lack jurisdiction to consider them.

     This Circuit has not expressly considered whether a failure to

file a timely appeal with the BIA renders claims unexhausted, but we

                                 -8-
agree with the Sixth and Ninth Circuits that a late appeal to the BIA

leaves a petitioner’s claim unexhausted, and that a court then lacks

jurisdiction to consider the unexhausted claims. See Sswajje v.

Ashcroft, 

, 532 (6th Cir. 2003); Da Cruz v. INS, 

, 722-23 (9th Cir. 1993).

      We must therefore dismiss for lack of jurisdiction all aspects of

Poole’s petition, except his claim for derivative citizenship, to

which we now turn.

      Derivative citizenship.               Poole’s claim to derivative citizenship

does not encounter a jurisdictional obstacle for lack of exhaustion.

The Executive Branch may remove certain aliens but has no authority to

remove citizens.            An assertion of United States “citizenship is thus

a   denial   of    an       essential       jurisdiction    fact”    in    a   deportation

proceeding. Ng Fung Ho v. White, 

, 284 (1922); Rivera v.

Ashcroft, 

, 1136 (9th Cir. 2005); see also Frank v.

Rogers, 

, 890 (D.C. Cir. 1958) (“Until the claim of

citizenship is resolved, the propriety of the entire proceeding is in

doubt.”).     If the Government’s argument that exhaustion is required

were correct, “it would be possible to unintentionally relinquish U.S.

citizenship    .       .    .   .    The   Constitution    does   not     permit   American

citizenship       to       be   so   easily   shed.”   

.

Relinquishing citizenship requires an affirmative act. See Vance v.

Terrazas, 

, 260-61 (1980); see also Trop v. Dulles, 356

                                               -9-
U.S. 86, 92 (1958) (plurality opinion) (“citizenship is not a license

that expires upon misbehavior.”).            “[T]he statutory administrative

exhaustion requirement of § 1252(d)(1) does not apply” to “a person

with a non-frivolous claim to U.S. citizenship.” Minasyan v. Gonzales,

,   1075   (9th   Cir.   2005)   (internal   quotation   marks

omitted); see also Moussa v. INS, 

, 825 (8th Cir. 2002)

(holding that the exhaustion requirement of subsection 1252(d)(1)

applies “only to an ‘alien’” “challenging a final order of removal”

and not to “‘any person.’”).

      To determine whether an alien obtains derivative citizenship

under 8 U.S.C. § 1432(a), the court “appl[ies] the law in effect when

[petitioner]     fulfilled     the    last     requirement    for   derivative

citizenship.” Ashton v. Gonzales, 

, 97 (2d Cir. 2005).           At

the time Poole’s mother received citizenship in 1984, section 321(a)

of the INA provided:

      A child born outside of the United States of alien parents
      . . . becomes a citizen of the United States upon
      fulfillment of the following conditions:

      (1) the naturalization of both parents; or

      (2) the naturalization of the surviving parent if one of the
      parents is deceased; or

      (3) the naturalization of the parent having legal custody of
      the child when there has been a legal separation of the
      parents or the naturalization of the mother if the child was
      born out of wedlock and the paternity of the child has not
      been established by legitimation; and if


                                      -10-
        (4) such naturalization takes place while such child is
        unmarried and under the age of 18 years; and

     (5) such child is residing in the United States pursuant to
     a lawful admission for permanent residence at the time of
     the naturalization of the parent last naturalized under
     clause 8 U.S.C. § 1432(1), or the parent naturalized under clause (2) or (3), or thereafter begins to reside
permanently in the United States while under the age of 18 years.


8 U.S.C. § 1432(a) (repealed).                         Subsections 1432(a)(1) and (2) are

inapplicable          here.         Accordingly,           the     only     way     Poole      can     secure

derivative citizenship is by showing (1) either (a) that there has

been a legal separation of his parents and the parent having legal

custody has been naturalized, or (b) that he has been born out of

wedlock, his mother has been naturalized, and his paternity has not

been        established        by    legitimation;            (2)     that      such     naturalization

occurred while he was under the age of eighteen; and (3) that he was

residing in the United States pursuant to a lawful admission for

permanent residence at the time his mother becomes naturalized. See

the second alternative of the first requirement

since he was born out of wedlock,3 his mother was naturalized, and his

father never legitimated him.4 He also satisfies the third requirement


        3
            The fact that Poole’s parents never married supports a finding

of a birth out of wedlock.
        4
            Legitimacy is determined by the law of the country in which Poole

was born, see Wedderburn v. INS,                         

, 797 (7th Cir. 2000)

                                                     -11-
since as he was legally residing in this country at the time his

mother was naturalized.

     Because Poole’s only possible claim to derivative citizenship is

through the illegitimacy prong of subsection 1432(a)(3), the final

inquiry focuses on whether Poole’s mother received her citizenship

prior to Poole’s eighteenth birthday.          See 8 U.S.C. § 1432(a)(4).

Because Poole’s mother was naturalized nine months after Poole’s

eighteenth   birthday   he   appears   to    fail   to   satisfy   the   timing

requirement of subsection 1432(a)(4).

     However, there might be some basis for relieving Poole of the

requirement that his mother was naturalized prior to his eighteenth

birthday.    She applied for citizenship when he was 16.           The record

provides no indication why the Government took two years to process

her application.   A more expeditious processing, if completed within

two years, would have provided Poole with derivative citizenship.



(referring to laws of Jamaica, where petitioner was born, to determine

petitioner’s paternity), which in this case is Guyana.         As determined

in 2006 by the BIA, under Guyanese law, a father legitimates his

illegitimate child only if the father marries the child’s mother. In

re Rowe, 23 I. & N. Dec. 962, *12-13        (BIA 2006); see also Gorsira v.

Loy, 

, 463-64 (D. Conn. 2005) (finding same).

Poole’s parents never married.     Accordingly, under Guyanese law, his

father never legitimated him.

                                   -12-
Form N–400 (Application for Naturalization) requires the applicant to

provide the names and dates of birth of children.                       The Third Circuit,

in    an    unpublished     opinion,     has    accepted         the    argument    that    an

inexplicable delay on the part of the INS in processing a parent’s

citizenship        application     should      not      defeat    a    child’s    claim    for

derivative citizenship. See Calix-Chavarria v. AG of the United

States, 182 Fed. Appx. 72, 76 (3d Cir. 2006).

       In    the   pending    case,     the    IJ    dismissed         Poole’s    derivative

citizenship claim by stating, “This court does not believe that the

respondent has derived citizenship through parentage for the reasons

indicated.”        No reason is provided, but perhaps the IJ was referring

to his earlier statement that an estoppel against the Government was

not    available     because      the   INS    had      not   engaged      in    affirmative

misconduct in processing the mother’s application. On appeal, the BIA

gave no consideration to the claim for derivative citizenship.

       If the equities of the situation are relevant, they appear to

favor      the   exercise    of   discretion       in    Poole’s       favor,    despite   his

criminal offenses.           His mother’s application was filed two years

before his eighteenth birthday; the INS, alerted to the date when he

would turn eighteen, had an opportunity to complete its review in time

for him to acquire derivative citizenship; he has three children, aged

nineteen, fourteen, and ten, all of whom are citizens residing in this

country; and both his parents are citizens residing in this country.



                                            -13-
     Under all the circumstances, we will remand the case to the BIA

for consideration of what relief, if any, might be accorded to Poole

with respect to his claim for derivative citizenship.      Even if the BIA

determines that relief is not available for Poole, the Government

might wish to consider the advisability of instituting some procedure

whereby the citizenship applications of parents with minor children

born abroad are sorted by the children’s ages and a priority is given

to processing the applications of parents whose children are nearing

eighteen at the time of the application.

                               Conclusion

     For   the   foregoing   reasons,    Poole’s   claim   of   derivative

citizenship is remanded to the BIA, and the remainder of his claims

are dismissed for lack of jurisdiction.




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