Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-22-2005

Brown v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2550




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"Brown v. Atty Gen USA" (2005). 2005 Decisions. Paper 206.
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                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                       NO. 05-2550
                                    ________________

                                     CLIVE BROWN,
                                                        Petitioner
                                   v.
                  ATTORNEY GENERAL OF THE UNITED STATES,

                                                   Respondent
                       _______________________________________

                         On Petition for Review of a Decision of the
                              Board of Immigration Appeals
                                 (Agency No. A15 219 553)
                       _______________________________________

                 Submitted Under Third Circuit L.A.R. 34.1(a)
                           NOVEMBER 14, 2005
      BEFORE: BARRY, STAPLETON AND GREENBERG, CIRCUIT JUDGES

                                (Filed: November 22, 2005)
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Clive Brown, a citizen of Jamaica, seeks review of a final order of removal issued

by the Board of Immigration Appeals (BIA). For the following reasons, we will deny the

petition for review.

       Brown entered the United States as a nonimmigrant in 1992 and adjusted his status

to lawful permanent resident in 1993. He married a citizen of the United States in 1994
and applied for naturalization. On April 3, 1996, Brown was arrested and charged in

New York with the criminal sale of a controlled substance. Two weeks later, on April 16,

1996, he was sworn in as a United States citizen in the United States District Court for the

Western District of New York, without revealing his recent arrest and pending charge. A

year later, in April 1997, he was convicted on the 1996 charge.

       In February 2001, Brown pleaded guilty in the District Court to unlawfully

procuring citizenship and naturalization in violation of 18 U.S.C. § 1425(a). As a result,

the District Court revoked Brown’s citizenship and cancelled the certificate of

naturalization. Based on his 1997 conviction and his 2001 conviction, the government

charged Brown with removability for having been convicted of two crimes involving

moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).

       In 2003, Brown again pleaded guilty in the District Court, this time to conspiracy

to import five kilograms or more of cocaine. The District Court sentenced Brown to 135

months in prison. Based on this conviction, the government amended its charges to

include removability for having been convicted of an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii).

       Brown appeared before an immigration judge (IJ) and argued that he is not subject

to removal because he is a national of the United States, not an alien. He did not apply

for any form of relief from removal, however. The IJ ruled that Brown is an alien, not a

national or a citizen of the United States, and ordered him removed to Jamaica. On



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appeal to the BIA, Brown again argued that he is a national of the United States. The

BIA, by single member, affirmed the IJ’s decision without opinion.

       Brown filed a timely petition for review in this Court.1 Again, his sole argument is

that he is a national of the United States. We disagree. A national is either 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). For a citizen of

another country, “nothing less than citizenship will show ‘permanent allegiance to the

United States.’” Salim v. Ashcroft, 

, 310 (3d Cir. 2003). Here, Brown

completed the naturalization process in 1996. His citizenship was subsequently revoked,

however, because it was obtained unlawfully. Consequently, Brown is not a citizen of the

United States and thus cannot be deemed a national.

       Brown’s attempt to invoke the rule of lenity does not further his cause. The rule of

lenity is a canon of statutory construction reserved for the criminal context. See Valansi

v. Ashcroft, 

, 214 n.9 (3d Cir. 2002). In the immigration context, a similar

canon requires construction of “any lingering ambiguities in deportation statutes in favor

of the alien.” 

v. Cardoza-Fonseca, 

, 449 (1987)). Here,



   1
     Because Brown’s nationality claim presents a question of law, we have jurisdiction to
review it, his convictions notwithstanding. See 8 U.S.C. §§ 1252(a)(2)(C) and (D);
Bonhometre v. Gonzales, 

, 445 (3d Cir. 2005). We exercise plenary review
over Brown’s nationality claim. Cf. Jordon v. Attorney General, __F.3d__, 

, *5 (3d Cir. Sept. 26, 2005) (exercising plenary review over derivative
citizenship claim). Because the BIA affirmed without opinion, we review the IJ’s
decision and reasoning. See Dia v. Ashcroft, 

, 245 (3d Cir. 2003) (en banc).

                                              3
however, we are not called to interpret § 1101(a)(22), the statute which defines national.

As described above, we interpreted the meaning of § 1101(a)(22) in Salim, a precedential

opinion which governs our resolution of the current matter.

       For these reasons, we conclude that Brown is not a national. He is instead an alien

who is removable for having been convicted of enumerated offenses.2 Accordingly, we

will deny his petition for review.




   2
    Brown does not challenge the fact that he has been convicted of either an aggravated
felony or two crimes involving moral turpitude. Even if he had, we would lack
jurisdiction to consider such a challenge due to Brown’s failure to raise it on appeal to the
BIA. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 

, 594-95 (3d
Cir. 2003).

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