Fernandez v. Keisler

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUIS PUENTES FERNANDEZ, 

Petitioner,

v.

 No. 06-2209

PETER D. KEISLER, Acting Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

(A13-377-329)

Argued: May 21, 2007

Decided: September 26, 2007

Before WILLIAMS, Chief Judge, and MOTZ and

SHEDD, Circuit Judges.

Petition for review denied by published opinion. Chief Judge Wil-

liams wrote the opinion, in which Judge Shedd concurred. Judge

Motz wrote a dissenting opinion.

COUNSEL

ARGUED: Marc Seguinot, SEGUINOT & ASSOCIATES, P.C.,

McLean, Virginia, for Petitioner. Kristin Kay Edison, UNITED

STATES DEPARTMENT OF JUSTICE, Office of Immigration Liti-

gation, Civil Division, Washington, D.C., for Respondent. ON

BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division,

2 FERNANDEZ v. KEISLER

James A. Hunolt, Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litigation,

Civil Division, Washington, D.C., for Respondent.

OPINION

WILLIAMS, Chief Judge:

Luis Puentes Fernandez, a native and citizen of Chile, petitions for

review of an order of the Board of Immigration Appeals (BIA) order-

ing his removal from the United States. The BIA ordered Fernandez’s

removal based on his conviction in Virginia state court for distribu-

tion of oxycodone and Percocet. Fernandez seeks to avoid removal by

arguing that under our decision in United States v. Morin, 80 F.3d 124

(4th Cir. 1996), he has demonstrated that he owes "permanent alle-

giance" to the United States and thus qualifies as a U.S. national

under § 101(a)(22)(B) of the Immigration and Nationality Act (INA),

8 U.S.C.A. § 1101(a)(22)(B) (West 2005). That provision defines

"national of the United States" as "a person who, though not a citizen

of the United States, owes permanent allegiance to the United States."

Id. The BIA rejected Fernandez’s argument, concluding that

§ 1101(a)(22)(B) itself does not provide a means for acquiring U.S.

national status.

Although we agree with Fernandez that he would qualify as a U.S.

national under Morin, our decision in Morin did not purport to set

forth the only possible interpretation of the definition of "national of

the United States." Under Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), we must afford deference

to the BIA’s contrary, post-Morin interpretation of the INA if it is a

"permissible construction of the statute." Id. at 843. We hold that it

is. Accordingly, because Fernandez does not qualify as a "national of

the United States" under the BIA’s interpretation of the INA, and

because we conclude that the BIA’s interpretation is not "arbitrary,

capricious, or manifestly contrary to the statute," id. at 844, we deny

Fernandez’s petition for review.

I.

Fernandez was born in Chile and was admitted to the United States

as a lawful permanent resident on August 22, 1965, at the age of one.

FERNANDEZ v. KEISLER 3

He has been in the United States continuously since that time. At the

age of eighteen, Fernandez registered for the Selective Service.

In 1996, Fernandez applied for U.S. citizenship, and on June 21,

1996, he attended his naturalization interview. According to Fernan-

dez, he signed the affidavit of allegiance to the United States that is

part of the citizenship application, and an application inspector told

him that he would receive a notice in the mail advising him of the

date of his oath ceremony.

After failing to receive a notice for some time, Fernandez began

inquiring about the date of his oath ceremony. Fernandez never

received the notice, and it is undisputed that he did not complete the

naturalization process and is not a U.S. citizen.

On July 9, 2003, Fernandez pleaded guilty in Virginia state court

to distribution of oxycodone and Percocet. The court sentenced him

to twenty years’ imprisonment, with seventeen years suspended.

On February 8, 2006, the Department of Homeland Security

("DHS") served Fernandez with a Notice to Appear before the Immi-

gration Court, charging him with removability under 8 U.S.C.A.

§ 1227(a)(2)(A)(iii) (West 2005) for having been convicted of an

aggravated felony (an offense related to the illicit trafficking of a con-

trolled substance) and under 8 U.S.C.A. § 1227(a)(2)(B)(I) (West

2005) for having been convicted of a controlled substance offense

after admission to the United States. In response, Fernandez argued

for termination of the removal proceedings against him on the ground

that he is an unremovable "national of the United States." (J.A. at 44.)1

On March 31, 2006, an immigration judge (IJ) conducted Fernan-

dez’s removal hearing. The hearing focused on whether Fernandez is

a removable alien or an unremovable U.S. national. On April 21,

2006, the IJ terminated the removal proceedings against Fernandez,

concluding that under our decision in Morin, Fernandez is a "national

of the United States" because his permanent allegiance to the United

States was established by virtue of his application for naturalization.

1

Citations to "(J.A. at ___.)" refer to the contents of the Joint Appendix

filed by the parties in this appeal.

4 FERNANDEZ v. KEISLER

Although the IJ stated that he agreed with the "better analysis" in the

Ninth Circuit’s decision in Perdomo-Padilla v. Ashcroft, 333 F.3d

964 (9th Cir. 2003), and the majority opinion in our decision in Daly

v. Gonzales, 129 F. App’x 837 (4th Cir. 2005)(unpublished), both of

which held that 8 U.S.C.A. § 1101(a)(22) does not itself provide a

means of acquiring U.S. national status, he believed that Morin com-

pelled the conclusion that Fernandez is an unremovable U.S. national.

The IJ concluded his decision by citing approvingly to the dissenting

opinion in Daly, which disagreed with the majority’s distinguishment

of Morin based on its criminal context. See Daly, 129 F. App’x at 845

(Duncan, J., dissenting) ("I do not agree that the existence of ‘differ-

ent contexts’ gives us license to interpret the exact language in [8

U.S.C.A. § 1101(a)(22)] differently in different cases.").

The DHS appealed, and on October 26, 2006, the BIA reversed the

IJ’s decision and ordered Fernandez removed from the United States.

Citing to its recent decision in Matter of Navas-Acosta, 23 I. & N.

Dec. 586 (BIA 2003), the BIA rejected Fernandez’s argument that an

alien may become a U.S. national through means other than birth and

full naturalization. Also, like the Daly majority, the BIA distinguished

Morin on the basis of its criminal context and thus treated as dicta

Morin’s interpretation of § 1101(a)(22).

Board Member Filppu filed a concurring opinion in which he

expressed skepticism about the Board majority’s conclusion that

Morin’s interpretation of the INA’s definition of "national of the

United States" is non-binding dicta. Specifically, he stated that "it is

unlikely that the criminal law context of Morin permits us to construe

the same statutory text differently in the case before us." (J.A. at 158.)

Nevertheless, Board Member Filppu concurred in the result, for the

following reason:

The Department of Homeland Security is not permitted to

seek circuit court review of our decisions and could not

obtain Fourth Circuit review of this nationality issue were

we to follow Morin today. In these highly unusual circum-

stances, and especially given the unpublished decision in

Daly v. Gonzales, I believe reversal of the Immigration

Judge is warranted in order to seek clarification from the

Fourth Circuit as to whether we are to follow Morin, despite

FERNANDEZ v. KEISLER 5

our own reading of the statute, which is consistent with sub-

stantial circuit law subsequent to Morin.

(J.A. at 158 (citation omitted).)

Fernandez timely petitioned for review. We have jurisdiction pur-

suant to 8 U.S.C.A. § 1252(a)(1) (West 2005) (providing for appellate

review of final orders of removal).

II.

Because this section of the opinion covers substantial ground, we

will briefly lay out its course. In Part A, we discuss our decision in

Morin. In Part B.1., we conclude that we must afford Chevron defer-

ence to the BIA’s interpretation of § 1101(a)(22) and the INA’s other

nationality provisions. In Part B.2., we discuss the interplay between

Morin’s interpretation of the INA and the deference that we owe

under Chevron to the BIA’s contrary, post-Morin interpretation. We

ultimately conclude that Chevron dictates that we follow the BIA’s

interpretation if it is not arbitrary, capricious, or manifestly contrary

to the INA. And in Part C, we apply Chevron and conclude that the

BIA’s interpretation, though contrary to Morin’s, is a permissible one

and thus is entitled to deference.

A.

Only "aliens" are subject to removal under the INA. See 8 U.S.C.A.

§ 1227(a) (West 2005) (listing "[c]lasses of deportable aliens"). The

INA defines "alien" as "any person not a citizen or national of the

United States." 8 U.S.C.A. § 1101(a)(3) (West 2005). All citizens of

the United States are nationals, but some nationals are not citizens.

The INA defines "national of the United States" as "(A) a citizen of

the United States, or (B) a person who, though not a citizen of the

United States, owes permanent allegiance to the United States." 8

U.S.C.A. § 1101(a)(22). In turn, the word "permanent" is defined to

mean "a relationship of continuing or lasting nature, as distinguished

from temporary." 8 U.S.C.A. § 1101(a)(31) (West 2005). Congress

did not, however, expressly describe the circumstances under which

a person demonstrates "a relationship of continuing or lasting nature"

6 FERNANDEZ v. KEISLER

with the United States. In other words, Congress has not specified

whether § 1101(a)(22)(B) describes, rather than confers, U.S. nation-

ality.

Fernandez argues that he qualifies as a "national of the United

States" under § 1101(a)(22)(B) because he is a noncitizen who owes

permanent allegiance to the United States. According to Fernandez,

he has demonstrated his permanent allegiance by (1) filing a citizen-

ship application, which required that he swear allegiance to the

United States; (2) completing all steps to naturalization except for

attending the oath ceremony (a deficiency he attributes to the Govern-

ment’s inaction, not his own negligence); (3) registering for the draft;

and (4) living in the United States for over forty years. (Petitioner’s

Br. at 6-7.) Fernandez believes that, given these facts, our decision in

Morin compels the conclusion that he is a U.S. national.

Morin was a criminal case in which the defendant Morin argued

that he had not violated 18 U.S.C.A. § 1958(a), the federal murder-

for-hire statute, which requires interstate or foreign travel or use of

the mails with an "intent that a murder be committed in violation of

the laws of any State or the United States." 18 U.S.C.A. § 1958(a)

(West 2000 & Supp. 2006). One such "law of the United States" is

18 U.S.C.A. § 2332(a), which criminalizes the murder of a "national

of the United States." 18 U.S.C.A. § 2332(a) (West 2000). Morin

argued that he did not violate § 2332(a) because his intended victim

was a Mexican citizen and not a "national" of the United States.

Morin, 80 F.3d at 126. Our attention properly turned to the INA’s def-

inition of "national of the United States" because 18 U.S.C.A. § 2331,

which defines the terms in § 2332(a), cross-references the INA’s defi-

nition of "national of the United states." See 18 U.S.C.A. § 2331(2)

(West 2000 & Supp. 2006) ("[T]he term ‘national of the United

States’ has the meaning given such term in section 101(a)(22) of the

Immigration and Nationality Act.").

We rejected the defendant’s argument and held that his intended

victim was a U.S. national under 8 U.S.C.A. § 1101(a)(22). We rea-

soned as follows:

Citizenship . . . is not the sine qua non of "nationality." A

"national of the United States" may also be a "person who,

FERNANDEZ v. KEISLER 7

though not a citizen of the United States, owes permanent

allegiance to the United States." 8 U.S.C. § 1101(a)(22). The

district court found that because [the intended victim] was

a permanent resident alien of the United States who had

applied for United States citizenship, he was indeed a "na-

tional of the United States." We agree — an application for

citizenship is the most compelling evidence of permanent

allegiance to the United States short of citizenship itself.

Morin, 80 F.3d at 126.

In Fernandez’s view, his status as a U.S. national is ironclad in

light of Morin’s holding that naturalization applicants come within

§ 1101(a)(22)’s definition of "national of the United States." Just like

the Mexican citizen in Morin, Fernandez has applied for U.S. citizen-

ship.

B.

As is apparent from our discussion above, the Morin court did not

arrive at its construction of § 1101(a)(22) by way of Chevron. Thus,

it did not address the BIA’s 1974 decision in Matter of Tuitasi, 15 I.

& N. Dec. 102 (BIA 1974), in which the BIA held that the "acquisi-

tion of nationality for a noncitizen national is not governed by

[§ 1101(a)(22)]" but instead by 8 U.S.C.A. § 1408, the provision

describing categories of noncitizen nationals. Id. at 103 (emphasis in

original). The BIA concluded that a noncitizen may become a U.S.

national only by completing the naturalization process, by birth to

U.S. national parents, or by birth in an outlying possession of the

United States. Id.

Subsequent to our decision in Morin, the BIA has reaffirmed and

expounded on its position in its decision in Navas-Acosta. Drawing

on the historical meaning of the word "national" and the statutory

framework of the INA, the BIA held that "nationality under the Act

may be acquired only through birth or naturalization." Id. at 588. In

ordering Fernandez’s removal in this case, the BIA has once again

adhered to its interpretation, which is contrary to Morin’s interpreta-

tion that a noncitizen can become a U.S. national merely by filing a

naturalization application.

8 FERNANDEZ v. KEISLER

We face two questions in determining whether we must defer under

Chevron to the BIA’s interpretation of the INA’s nationality provi-

sions: (1) whether, in the INA, Congress has directed that courts inter-

pret the INA’s nationality provisions, including § 1101(a)(22),

without affording Chevron deference to the BIA’s views; and (2)

whether we must follow Morin’s interpretation of § 1101(a)(22) or

the BIA’s contrary, post-Morin interpretation. We address these ques-

tions in turn.

1.

Citing to the Fifth Circuit’s decision in Alwan v. Ashcroft, 388 F.3d

507 (5th Cir. 2004), Fernandez argues that courts must review claims

of nationality de novo without affording Chevron deference to the

BIA’s interpretation of 8 U.S.C.A. § 1101(a)(22). (Petitioner’s Br. at

8.) The Government disagrees, urging us to apply Chevron in this

case and defer to the BIA’s interpretation of the INA’s nationality

provisions.

Acknowledging that courts normally owe deference to the BIA’s

interpretations of the INA, the Alwan court held that it owed no defer-

ence to the BIA’s determination of nationality claims because Con-

gress, through 8 U.S.C.A. § 1252(b)(5) (West 2005), "explicitly

places the determination of nationality claims in the hands of the

courts" and thus "has not consigned [them] to the discretion of the

BIA." Id. at 510. According to the Alwan court, § 1252(b)(5) grants

courts the power to decide nationality claims irrespective of whether

any ambiguity exists in the INA’s language that would typically

require agency deference. Both the Eleventh and Ninth Circuits have

joined in this conclusion that § 1252(b)(5) frees courts from applying

Chevron in deciding nationality claims. See Sebastian-Soler v. U.S.

Attorney Gen., 409 F.3d 1280, 1283 (11th Cir. 2005)(per curiam) (cit-

ing § 1252(b)(5) and Alwan and not applying Chevron to the BIA’s

interpretation); Perdomo-Padilla, 333 F.3d at 967 (citing § 1252(b)(5)

as proof that "Congress did not grant discretion to the BIA to decide

questions of law related to nationality").

Other circuits have implicitly sanctioned such reasoning, deciding

nationality claims without addressing the issue of deference to the

BIA. See Abou-Haidar, 437 F.3d at 207-08 (interpreting

FERNANDEZ v. KEISLER 9

§ 1101(a)(22)’s definition of "national of the United States" "de

novo" without considering the BIA’s interpretations); Marquez-

Almanzar, 418 F.3d at 219 (holding that petitioner was not a "national

of the United States" under § 1101(a)(22) without applying Chevron:

"Our holding is consistent with the BIA’s own interpretation of the

statute . . . and the decisions of other circuits." (emphasis

added)(citation omitted)); see also Salim, 350 F.3d at 309 n.2

(expressly declining to decide whether Chevron deference is due the

BIA’s determination of questions of law related to nationality claims).

It should be noted that, despite not affording deference to the BIA, all

of these courts ultimately adopted an interpretation of § 1101(a)(22)

similar to the BIA’s.

The relevant statutory language, however, does not allow us to

ignore the BIA’s statutory interpretation. Section 1252(b)(5) provides

the following:

(5) Treatment of nationality claims

(A) Court determination if no issue of fact

If the petitioner claims to be a national of the United States

and the court of appeals finds from the pleadings and affida-

vits that no genuine issue of material fact about the petition-

er’s nationality is presented, the court shall decide the

nationality claim.

(B) Transfer if issue of fact

If the petitioner claims to be a national of the United States

and the court of appeals finds that a genuine issue of mate-

rial fact about the petitioner’s nationality is presented, the

court shall transfer the proceeding to the district court of the

United States for the judicial district in which the petitioner

resides for a new hearing on the nationality claim and a

decision on that claim as if an action had been brought in

the district court under section 2201 of Title 28.

(C) Limitation on determination

10 FERNANDEZ v. KEISLER

The petitioner may have such nationality claim decided only

as provided in this paragraph.

8 U.S.C.A. § 1252(b)(5).

We cannot conclude, like some of our sister circuits, that the statute

calls for us to abandon our normal mode of inquiry — in which we

interpret ambiguous provisions of the INA against a Chevron back-

drop, deferring to the BIA’s permissible constructions of the statute

— for one that requires us to interpret § 1101(a)(22) sans Chevron.

We will briefly explain our reasoning.2

2

The dissent concludes that Morin and Dragenice v. Gonzales, 470

F.3d 183 (4th Cir. 2006)(per curiam), bind us by establishing a practice

of not affording Chevron deference to the BIA on nationality claims.

However, in Morin, we did not address the question of Chevron defer-

ence at all. Nor did we need to consider § 1252(b)(5)’s applicability in

Morin, as it was not a removal case. Similarly, in Dragenice, we declined

to decide whether birth and naturalization are the exclusive means to

becoming a U.S. national [the view espoused by the BIA] because the

petitioner’s claim of national status failed under either Morin’s or the

BIA’s standard. Id. at 188. Morin and Dragenice thus do not foreclose

our application of Chevron in this case.

The dissent’s protestation that we are creating a conflict with our own

precedent in applying Chevron — premised on the apparent belief that

a previous decision binds the court even by what it did not do or say —

is thus mistaken. We are bound by holdings, not unwritten assumptions.

See Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993) (noting that

stare decisis is not applicable unless the issue was "squarely addressed"

in the prior decision); Webster v. Fall, 266 U.S. 507, 511 (1925)

("Questions which merely lurk in the record, neither brought to the atten-

tion of the court nor ruled upon, are not to be considered as having been

so decided as to constitute precedents."); United States v. Norris, 486

F.3d 1045, 1054 (8th Cir. 2007) (citing Sakamoto v. Duty Free Shoppers,

Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985), for the proposition that "un-

stated assumptions on non-litigated issues are not precedential holdings

binding future decisions"); Getty Petroleum Corp. v. Bartco Petroleum

Corp., 858 F.2d 103, 113 (2d Cir. 1988) (stating that "a sub silentio hold-

ing is not binding precedent").

Finally, to the extent that the dissent implies that our analysis hinges

(even implicitly) on distinguishing Morin on the basis of its criminal

context, see post at 24-25, this simply is not so. We agree with the dis-

sent that the decision cannot be distinguished based on its context.

FERNANDEZ v. KEISLER 11

The INA provides that "[t]he Secretary of Homeland Security shall

be charged with the administration and enforcement of [the statute]"

and that the "determination and ruling by the Attorney General with

respect to all questions of law shall be controlling." 8 U.S.C.A.

§ 1103(a)(1) (West 2005). The Supreme Court has repeatedly stated

that "judicial deference to the Executive Branch is especially appro-

priate in the immigration context where officials ‘exercise especially

sensitive political functions that implicate questions of foreign rela-

tions.’" I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting

I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)). And as the holder of much

of the Attorney General’s delegated power, "the BIA should be

accorded Chevron deference as it gives ambiguous statutory terms

‘concrete meaning through a process of case-by-case adjudication.’"

Id. at 425 (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448

(1987)). This means that the BIA’s interpretations of ambiguous parts

of the INA must be given controlling weight unless those interpreta-

tions are "arbitrary, capricious, or manifestly contrary to the statute."

Chevron, 467 U.S. at 844; see, e.g., Ahmed v. Ashcroft, 341 F.3d 214,

217 (3d Cir. 2003) ("We defer to the BIA’s interpretation of the

[INA] unless the interpretation is arbitrary, capricious, or manifestly

contrary to the statute." (internal quotation marks omitted)). For us to

remove our Chevron glasses in interpreting the INA, the statutory lan-

guage must make clear that Congress desired such unfettered review.

We do not believe § 1252(b)(5) clearly calls for such a retreat from

our mode of review. Rather, the unremarkable statute mandates that

when circuit courts — which are ill-equipped to decide genuine dis-

putes of fact — are faced with nationality claims presenting disputed

material facts, the proceeding must be transferred to the district court

for a hearing. Thus, "[i]n making de novo review by the district court

hinge on the existence of genuine issues of material fact, ‘Congress

intended the language to be interpreted similarly to that in [Federal

Rule of Civil Procedure] 56.’" Jahed v. Acri, 468 F.3d 230, 234 (4th

Cir. 2006)(quoting Agosto v. I.N.S., 436 U.S. 748, 754 (1978)). In

carving out nationality claims for this kind of treatment, "Congress

was aware of [ ] past [Supreme Court] decisions holding that the Con-

stitution requires that there be some provision for de novo judicial

determination of claims to American citizenship in deportation pro-

ceedings." Agosto, 436 U.S. at 753. Such judicial determination of

claims to nationality is not, however, the same as judicial interpreta-

12 FERNANDEZ v. KEISLER

tion of the statute against which such claims are decided. The effects

of interpretations of ambiguous statutory provisions, whether by an

agency or a court, extend well beyond the individual facts and cases

through which such interpretations arise.

This brings us to our second point. In pronouncing that the courts

"shall decide the nationality claim," we believe that the statute calls

for the same kind of de novo review that we always employ when

interpreting ambiguous provisions of a statute committed to agency

administration. "[T]hat we review legal questions de novo does not

detract from the fact that we owe Chevron deference to the BIA."

Hughes v. Ashcroft, 255 F.3d 752, 760 (9th Cir. 2001)(Fernandez, J.,

concurring in part and dissenting in part)(footnote omitted) (criticiz-

ing majority’s conclusion that § 1252(b)(5) frees courts from applying

Chevron to questions of nationality). It is one thing for a court to

bring pre-existing statutory interpretations to bear on a specific set of

facts, i.e., to decide a claim. It is quite another for a court to give

meaning to the ambiguous terms in a statute, which is decidedly not

the general practice for courts with respect to agency-administered

statutes. We think § 1252(b)(5) directs the former, not the latter,

which is unremarkable given that we always review legal conclusions

without deference. See, e.g., Markovski v. Gonzales, 486 F.3d 108,

110 (4th Cir. 2007) ("Legal conclusions are reviewed without defer-

ence; however, an agency’s interpretation of the applicable statutes is

entitled to deference and must be accepted if reasonable." (internal

citation omitted); see also Nwolise v. I.N.S., 4 F.3d 306, 309 (4th Cir.

1993) (same).

In relying on Alwan, Fernandez neglects to point out that the Fifth

Circuit, considering the effects of amendments made to the INA by

the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005) ("REAL

ID Act"), has called into question Alwan’s holding that no Chevron

deference is afforded to the BIA on questions of nationality. See

Marquez-Marquez v. Gonzales, 455 F.3d 548, 554 n.12 (5th Cir.

2006). Prior to Congress’s enactment of the REAL ID Act, the INA

provided that courts did not have jurisdiction to review final orders

against aliens removable on the basis of criminal conviction. See 8

U.S.C.A. § 1252(a)(2)(C) (West 2004), amended by 8 U.S.C.A.

§ 1252(a)(2)(C) (West 2005) ("Notwithstanding any other provision

of law . . . , no court shall have jurisdiction to review any final order

FERNANDEZ v. KEISLER 13

of removal against an alien who is removable by reason of having

committed a criminal offense [covered in 8 U.S.C.A. § 1227].").

Because § 1252(a)(2)(C) only barred judicial review of final removal

orders against an "alien," a court of appeals’ review of the merits of

a petitioner’s nationality claim often merged with the ultimate ques-

tion of the court’s own jurisdiction to review the removal order at

issue. See, e.g., Lewis v. I.N.S., 194 F.3d 539, 542 (4th Cir. 1999)

(holding that, notwithstanding § 1252(a)(2)(C)’s jurisdictional bar,

court had jurisdiction to consider whether petitioner was an alien and

had committed a deportable offense); Brissett v. Ashcroft, 363 F.3d

130, 133 (2d cir. 2004) ("The question of whether [petitioner] is an

alien whose petition is unreviewable under § 1252(a)(2)(C) is co-

extensive with the sole argument that [petitioner] presents in his peti-

tion, that he is a citizen and therefore not removable. We therefore

have jurisdiction to consider [petitioner’s] contention."). In Marquez-

Marquez, the Fifth Circuit characterized Alwan’s no-Chevron holding

as partly based on the jurisdictional nature of the nationality inquiry

in that case (Alwan, too, involved a criminal alien). Marquez-

Marquez, 455 F.3d at 554 n.12 ("In Alwan we held that, because our

jurisdiction was predicated on § 1252(b)(5)(A) and (C) and we were

directed to decide the issue, we hence did not give deference [ ] under

Chevron . . . to the BIA’s legal conclusions respecting the meaning

of ‘a national of the United States.’").

The REAL ID Act, which became effective on May 11, 2005, and

applies retroactively to any removal order, see REAL ID Act

§ 106(b), amended § 1252 in important ways. First, it made petitions

for review filed with the courts of appeals "the sole and exclusive

means for judicial review" of most removal orders, 8 U.S.C.A.

§ 1252(a)(5) (West 2005), and expressly eliminated district courts’

habeas jurisdiction over removal orders.3 Id. Second, corresponding

with the elimination of habeas jurisdiction, the Act expanded courts

of appeals’ jurisdiction over petitions for review by stating that none

of the INA’s provisions (including the bar in § 1252(a)(2)(C)) "which

3

Previously, federal courts generally "retain[ed] subject matter juris-

diction over habeas petitions brought by aliens facing removal to the

extent that those petitions [were] based on colorable claims of legal error,

that is, colorable claims that an alien’s statutory or constitutional rights

ha[d] been violated." Carranza v. I.N.S., 277 F.3d 65, 71 (1st Cir. 2002).

14 FERNANDEZ v. KEISLER

limit[ ] or eliminate[ ] judicial review, shall be construed as preclud-

ing review of constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court of appeals." 8

U.S.C.A. § 1252(a)(2)(D) (West 2005). This amendment permits all

petitioners, including both criminal aliens and non-aliens, to obtain

appellate court review of constitutional claims and questions of law

through a petition for review. See Mbea v. Gonzales, 482 F.3d 276,

278 n.1 (4th Cir. 2007) (observing that, although § 1252(a)(2)(C)

"generally bars judicial review of final removal orders when those

orders are entered on the ground that the alien committed an aggra-

vated felony or a crime involving moral turpitude, it permits review

[of] constitutional claims or questions of law" (internal quotations

marks omitted)); see also Bustamante-Barrera v. Gonzales, 447 F.3d

388, 394 (5th Cir. 2006) (stating that "§ 1252(a)(2)(D) grants us juris-

diction to hear Petitioner’s legal and constitutional claims, regardless

of whether he is an alien"); Jordon v. Attorney Gen., 424 F.3d 320,

327 (3d Cir. 2005) (stating that the INA now permits "criminal aliens

. . . to obtain review of constitutional claims and questions of law").

In light of the REAL ID Act’s granting courts of appeals jurisdic-

tion to review constitutional and legal questions presented by criminal

aliens in petitions for review, the Marquez-Marquez court questioned

Alwan’s no-Chevron holding given that the holding arose in the con-

text of the Alwan court’s jurisdiction to consider the petition for

review at all. Specifically, the Marquez-Marquez court noted that "be-

cause [its] jurisdiction no longer turned simply on § 1252(b)(5) but

was also supplied by § 1252(a)(2)(D)," it appeared that Alwan’s no-

Chevron conclusion was no longer binding on the court. 455 F.3d at

554 n.12. Although the Marquez-Marquez court declined to resolve

the Chevron deference issue because it would have affirmed the

BIA’s interpretation "with or without Chevron deference," id. (inter-

nal quotation marks omitted), it is clear that Alwan’s resolution of the

Chevron deference issue may not have survived the REAL ID Act in

the Fifth Circuit.

In short, the Alwan court’s reading of § 1252(b)(5) is not persua-

sive, and we are convinced that the far better reading is that Congress

has directed courts to decide nationality claims without altering their

normal practice of deciding legal questions against the backdrop of

Chevron. In fact, nothing in the statute’s language suggests that Con-

FERNANDEZ v. KEISLER 15

gress — in passing the statute — intended to alter normal principles

of administrative law. Accordingly, we conclude that § 1252(b)(5)

directs us to decide nationality claims through our customary mode

of inquiry, affording deference to the BIA’s interpretation of the INA.

2.

There remains the question of whether we must follow Morin’s

interpretation of § 1101(a)(22) or the BIA’s contrary interpretation.

Fernandez contends that we must apply Morin and declare him to

have attained U.S. national status. The Government urges us to defer

to the BIA’s interpretation and deny Fernandez U.S. national status.

Fortunately, the Supreme Court has illuminated our way in its recent

decision in National Cable & Telecommunications Ass’n v. Brand X

Internet Services, 545 U.S. 967 (2005).

In Brand X, the Court examined the relationship between the stare

decisis effect of an appellate court’s statutory interpretation and an

administrative agency’s subsequent, but contrary, interpretation. Reit-

erating that "Chevron’s premise is that it is for agencies, not courts,

to fill statutory gaps," the Court concluded that Chevron’s application

should not "turn on the order in which the [judicial and agency] inter-

pretations issue." Id. at 982, 983. Accordingly, the Court held that "[a]

court’s prior judicial construction of a statute trumps an agency con-

struction otherwise entitled to Chevron deference only if the prior

court decision holds that its construction follows from the unambigu-

ous terms of the statute and thus leaves no room for agency discre-

tion." Id. at 982; see also Elm Grove Coal Co. v. Director, OWCP,

480 F.3d 278, 291-95 (4th Cir. 2007) (citing Brand X and holding that

because the court’s relevant precedent did not hold that the statute in

question "unambiguously foreclose[d] an agency interpretation," the

court was required to defer to the agency’s subsequent interpretation

if it met the prerequisite for Chevron deference, namely, if it was

"based on a permissible construction of the statute" (internal quota-

tion marks omitted)).

Of course, Brand X in no way calls into doubt our many previous

judicial interpretations that rested on the unambiguous words of the

statute. Chevron step one remains Chevron step one after Brand X, so

that if the court has previously held that Congress has spoken directly

16 FERNANDEZ v. KEISLER

to the precise question at issue, "that is the end of the matter," Chev-

ron, 467 U.S. at 842, and no amount of Chevron step-two posturing

on the part of the agency will undo the court’s interpretation.

We thus do not hold that a court must say in so many magic words

that its holding is the only permissible interpretation of the statute in

order for that holding to be binding on an agency. In many instances,

courts were operating without the guidance of Brand X, and yet the

exercise of statutory interpretation makes clear the court’s view that

the plain language of the statute was controlling and that there existed

no room for contrary agency interpretation. In this instance, however,

for the reasons that follow, we do not think that the Morin court

intended to foreclose all subsequent agency interpretation of

§ 1101(a)(22).

In interpreting § 1101(a)(22), Morin held only that "an application

for citizenship is the most compelling evidence of permanent alle-

giance to the United States short of citizenship itself." Morin, 80 F.3d

at 126. This interpretation rested on the Morin court’s implicit, but

crucial, interpretation that § 1101(a)(22) confers, rather than

describes, nationality, an interpretation that the Morin court merely

assumed was correct without saying anything, one way or the other,

about whether the statute dictated such an interpretation. Certainly,

Morin did not hold that its interpretation flowed from the unambigu-

ous terms of the INA, or that its interpretation was the only permissi-

ble construction of the statute. The Morin court, faced with the

question of whether a noncitizen’s naturalization application is

enough to confer nationality, settled upon what it thought was, at the

least, a sensible construction of "national of the United States," but it

did not hold that its interpretation was the only one possible. See

Brand X, 545 U.S. at 985 ("Before a judicial construction of a statute,

whether contained in a precedent or not, may trump an agency’s, the

court must hold that the statute unambiguously requires the court’s

construction."). Consequently, Morin must yield to a reasonable inter-

pretation by the BIA of the INA and its provisions regarding U.S.

nationality, including § 1101(a)(22).

C.

We thus turn to our application of Chevron. As our earlier discus-

sion suggests, "Congress has not directly addressed the precise ques-

FERNANDEZ v. KEISLER 17

tion at issue" here, Chevron, 467 U.S. at 843, because the INA does

not provide express guidance as to the circumstances under which a

person "owes permanent allegiance to the United States." See Drage-

nice v. Gonzales, 470 F.3d 183, 187 (4th Cir. 2006)(per curiam)

("Congress provided no explicit guidance . . . as to the circumstances

under which a person ‘owes permanent allegiance to the United

States.’"); see also Maximilian Koessler, "Subject," "Citizen," "Na-

tional," and "Permanent Allegiance", 56 Yale L. J. 58, 69

(1946)(noting that "permanent allegiance" "has become a mystic con-

cept which dims, instead of clarifying, definitions" of nationality).

Accordingly, the BIA possesses whatever degree of discretion the

statutory ambiguity allows, and we must defer to its interpretation of

§ 1101(a)(22) if that interpretation is a "permissible construction of

the statute." Chevron, 467 U.S. at 843. As noted above, because Con-

gress has not merely failed to address a precise question but has also

made an explicit delegation of rulemaking authority to the agency,

"the agency’s regulation is ‘given controlling weight unless [it is]

arbitrary, capricious, or manifestly contrary to the statute.’" House-

hold Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 239 (2004)(quoting

Chevron, 467 U.S. at 844)(alteration in original).

The BIA’s position, expressed in both this case and its post-Morin

decision in Navas-Acosta, is that one acquires U.S. nationality only

by birth or naturalization. See Navas-Acosta, 23 I. & N. at 588. A

brief recounting of the historical and textual bases for the BIA’s inter-

pretation reveals that this construction is undoubtedly a permissible

one.

1.

Historically, the term "national" has referred only to noncitizens

born in territories of the United States. Oliver v. U.S. Dep’t of Justice,

I.N.S., 517 F.2d 426, 427-28 n.3 (2d Cir. 1975). The term "was origi-

nally intended to account for the inhabitants of certain territories - ter-

ritories said to ‘belong to the United States,’ including the territories

acquired from Spain during the Spanish-American War, namely the

Philippines, Guam, and Puerto Rico." Marquez-Almanzar, 418 F.3d

at 218 (citing 7 Charles Gordon et al., Immigration Law and Proce-

dure, § 91.01[3][b] (2005)); see also Rabang v. I.N.S., 35 F.3d 1449,

1452 n.5 (9th Cir. 1994) (noting that the "term ‘national’ came into

18 FERNANDEZ v. KEISLER

popular use in this country when the United States acquired territories

outside its continental limits, and was used in reference to noncitizen

inhabitants of those territories"). Nationals "were deemed to owe ‘per-

manent allegiance’ to the United States" and were "recognized as

members of the nationality community in a way that distinguished

them from aliens." Marquez-Almanzar, 418 F.3d at 218.

"The phrase ‘owes permanent allegiance’ in § 1101(a)(22)(B) is

thus a term of art that denotes a legal status for which individuals

have never been able to qualify by demonstrating permanent alle-

giance, as that phrase is colloquially understood." Id. In this regard,

the INA’s definition of nationality, "which explain[s] the latter by

referring to ‘permanent allegiance,’ [is] tautological," for "permanent

allegiance" is simply a "synonym for nationality."4 Koessler, supra,

at 69 & n.68.

The historical understanding of the term "national" thus supports

the BIA’s interpretation.

2.

The text and structure of the INA also support the BIA’s interpreta-

tion of § 1101(a)(22), and on many different sides.

Section 1101(a)(22), the provision defining "national of the United

States," is a subsection of 8 U.S.C.A. § 1101(a), which defines

numerous terms as they are used throughout Chapter 12 of Title 8 of

the U.S. Code. Elsewhere in Chapter 12, the INA describes four cate-

gories of persons who are classified as "nationals, but not citizens, of

the United States at birth." 8 U.S.C.A. § 1408 (West 2005). These cat-

egories include persons who were born in an "outlying possession of

4

Given the gradual extension of U.S. citizenship rights to the native

inhabitants of the United States’ insular possessions, the distinction

between citizenship and noncitizen nationality is of less significance

today. In the early twentieth century, however, the distinction was an

important one, for "[m]any of our insular possessions were not regarded

as fully incorporated into the United States, and their inhabitants were

not accorded full rights of citizenship." Marquez-Almanzar v. I.N.S., 418

F.3d 210, 218 n. 12 (2d Cir. 2005).

FERNANDEZ v. KEISLER 19

the United States," 8 U.S.C.A. § 1408(1), who were "found" in an

"outlying possession" at a young age, id. § 1408(3), or who are the

children of noncitizen nationals, see id. §§ 1408(2), (4).5 There is no

other provision in the INA besides § 1408 that categorizes noncitizen

nationals. Given § 1101(a)(2)’s placement in a definitional section of

the INA and § 1408’s description of the categories of noncitizens who

become nationals at birth, a straightforward understanding of the pro-

visions’ relationship is that § 1408 establishes a category of persons

who qualify as noncitizen nationals and that those who qualify are in

turn described in § 1101(a)(22) as owing "permanent allegiance" to

the United States.6 The BIA has thus stated that "whether one ‘owes

5

The INA provides that "[t]he term ‘outlying possessions of the United

States’ means American Samoa and Swains Island." 8 U.S.C.A.

§ 1101(a)(29) (West 2005).

6

The parties have expressed some confusion over whether the Supreme

Court in Miller v. Albright, 523 U.S. 420 (1998), has adopted the histori-

cal view of nationality, albeit in dicta. For example, consider this para-

graph from Fernandez’s opening brief: "Neither the Supreme Court nor

the Court of Appeals for the Fourth Circuit has decided this issue,

although the Supreme court in dicta has implicitly accepted the tradi-

tional view that ‘nationals’ are noncitizen residents of U.S. territories."

(Petitioner’s Br. at 11.)(emphasis in original)(citing Miller v. Albright,

523 U.S. 420, 465 n.2 (1998) (Ginsburg, J., dissenting)). Of course, the

reference focused on by the parties is not dicta of the Supreme Court, for

it is part of Justice Ginsburg’s dissenting opinion in that case.

In Miller, the Supreme Court faced a constitutional challenge to 8

U.S.C.A. § 1409 (West 2005), which provides, among other things, that

a child born out of wedlock and outside the United States to an alien

mother and an American father must be legitimated before age eighteen

to acquire citizenship. The petitioner, a child born abroad to an American

father and an alien mother, had been denied citizenship because she was

not legitimated before eighteen. She argued that § 1409 is unconstitu-

tional under the Equal Protection Clause of the Fifth Amendment

because it differentiates between citizen fathers and citizen mothers and

thus utilizes a suspect classification - gender - without justification. Mil-

ler, 523 U.S. at 424. The Court affirmed the D.C. Circuit’s decision

upholding the statute, but Justice Stevens’s opinion announcing the judg-

ment and squarely rejecting the constitutional challenge was joined only

by Chief Justice Rehnquist. Both Justice O’Connor, joined by Justice

Kennedy, and Justice Scalia, joined by Justice Thomas, wrote opinions

20 FERNANDEZ v. KEISLER

permanent allegiance to the United States,’ is not simply a matter of

individual choice"; instead the phrase "reflects a legal relationship

between an individual and a sovereign." Navas-Acosta, 23 I. & N. at

587-88; see also Marquez-Almanzar, 418 F.3d at 217 ("[T]he term

"permanent allegiance" merely describes the nature of the relationship

between non-citizen nationals and the United States, a relationship

that has already been created by another statutory provision.").

The INA’s elaborate framework for attaining nationality through

naturalization also supports the BIA’s view. Section 1101(a)(23), the

statutory provision immediately following the definition of "national

of the United States," provides that "‘naturalization’ means the con-

ferring of nationality of a state upon a person after birth, by any

means whatsoever." 8 U.S.C.A. § 1101(a)(23) (West 2005). On its

face, § 1101(a)(23) "makes no provision for the attainment of nation-

ality short of full naturalization." Perdomo-Padilla, 333 F.3d at 969.

Our review of the INA section entitled "Nationality Through Natural-

ization," 8 U.S.C.A. §§ 1421-1458 (West 2005 & Supp. 2006), lends

support to the conclusion that "Congress [did not] even remotely indi-

cate that a demonstration of ‘permanent allegiance’ alone would

allow, much less require, the Attorney General to confer U.S. national

status on an individual." Marquez-Almanzar, 418 F.3d at 218.

concurring in the judgment, with Justice O’Connor concluding that the

petitioner lacked third-party standing to challenge the statute on her

father’s behalf, see id. at 445-46, and Justice Scalia concluding that the

Court had no power to grant the relief requested: conferral of citizenship

on a basis other than that prescribed by Congress, see id. at 452-53.

In a dissenting opinion joined only by Justices Souter and Breyer, Jus-

tice Ginsburg stated that she believed the statute to unconstitutionally

classify on the basis of gender in determining the capacity of a parent to

qualify a child for citizenship. Id. at 460. As part of her discussion of the

history of U.S. citizenship laws, Justice Ginsburg stated that the distinc-

tion between citizenship and nationality "has little practical impact today

. . . for the only remaining noncitizen nationals are residents of American

Samoa and Swains Island." Id. at 467 n.2. This is the statement at the

center of the confusion, but the confusion is easily dispelled. This state-

ment, made in a footnote in a dissenting opinion, certainly is not binding

on us in this case. We do, however, note that it comports with the BIA’s

interpretation of the INA.

FERNANDEZ v. KEISLER 21

The textual support for the BIA’s interpretation does not end there.

An interpretation of § 1101(a)(22) that confers U.S. national status on

naturalization applicants is difficult to reconcile with 8 U.S.C.A.

§ 1429, which establishes "the primacy of removal proceedings over

a naturalization application." Navas-Acosta, 23 I. & N. at 588. Specif-

ically, § 1429 provides that "no person shall be naturalized against

whom there is outstanding a final finding of deportability . . . and no

application for naturalization shall be considered by the Attorney

General if there is pending against the applicant a removal proceed-

ing." 8 U.S.C.A. § 1429 (West 2005). Because the INA permits the

removal of aliens only, and § 1429 permits the removal of persons

with pending naturalization applications, it seems clear that Congress

understood applicants for naturalization to be aliens and not nationals.7

See Perdomo-Padilla, 333 F.3d at 970 (reaching same conclusion).

Finally, the BIA’s interpretation also finds strong support in the

language of 8 U.S.C.A. § 1481 (West 2005). That provision sets forth

a number of ways by which a "person who is a national of the United

States whether by birth or naturalization, shall lose his nationality."

8 U.S.C.A. § 1481 (emphasis added). The BIA has concluded that

"[i]f a person could acquire nationality through any means other than

birth or naturalization, . . . Congress would have included it in this

provision." Navas-Acosta, 23 I. & N. at 588.

In summary, there is no dearth of support for the BIA’s interpreta-

tion of the INA and its definition of "national of the United States."

The BIA’s position that a noncitizen may only acquire U.S. national-

ity by birth or by completing the naturalization process easily fits with

both the historical meaning of the term "national" of the United States

and the text and structure of the INA. As noted earlier, putting aside

7

In view of 8 U.S.C.A. § 1429, we agree with the Perdomo-Padilla

court that categorizing naturalization applicants as U.S. nationals would

handcuff the DHS in "cases in which a person files a naturalization appli-

cation after the [DHS] has instituted removal proceedings." Perdomo-

Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir. 2003). Under Fernan-

dez’s view, if a person filed a naturalization application after the DHS

has begun removal proceedings, the person would thereby become a "na-

tional" and the DHS would not be permitted to complete the removal

proceedings. This result runs counter to the plain language of § 1429.

22 FERNANDEZ v. KEISLER

Morin, every court of appeals to have addressed this issue has reached

a similar conclusion to the BIA. See Abou-Haidar, 437 F.3d at 207-

08 (holding that a naturalization application cannot confer national

status on an alien because one can become a U.S. national only by

birth or full naturalization); Marquez-Almanzar, 418 F.3d at 217-19

(same); Sebastian-Soler, 409 F.3d at 1287 (same); Salim, 350 F.3d at

310 (same); Perdomo-Padilla, 333 F.3d at 972 (same). Because the

BIA’s interpretation of the INA’s definition of "national of the United

States" is not "arbitrary, capricious, or manifestly contrary to the stat-

ute," Chevron, 467 U.S. at 844, we must defer to it in this case, Morin

notwithstanding.8

III.

For the foregoing reasons, we conclude that principles of Chevron

deference control this case. The BIA’s conclusion that Fernandez is

not a "national of the United States" rests on its permissible construc-

tion of the INA, the statute that it has been granted substantial dele-

gated power to interpret. Under the BIA’s view, U.S. national status

vests either at the moment of birth or at the moment of citizenship.

Both of these moments elude Fernandez. Accordingly, we deny his

petition for review.

8

Any quarrel with our decision on the ground that we are permitting

the BIA to overrule Morin has been squarely answered by the Supreme

Court:

Since Chevron teaches that a court’s opinion as to the best read-

ing of an ambiguous statute an agency is charged with adminis-

tering is not authoritative, the agency’s decision to construe the

statute differently from a court does not say that the court’s hold-

ing was legally wrong. Instead, the agency may, consistent with

the court’s holding, choose a different construction, since the

agency remains the authoritative interpreter (within the limits of

reason) of such statutes. In all other respects, the court’s prior

ruling remains binding law (for example, as to agency interpreta-

tions to which Chevron is inapplicable).

Nat’l Cable Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,

983 (2005).

FERNANDEZ v. KEISLER 23

PETITION FOR REVIEW DENIED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

With respect, I dissent.

In United States v. Morin, 80 F.3d 124 (4th Cir. 1996), this court

unanimously held that "national of the United States" as defined by

8 U.S.C.A. § 1101(a)(22)(B) (West 2005) includes naturalization

applicants. The majority acknowledges this, as it must. See ante at 6-

7. Thus, the majority recognizes, albeit implicitly, that Morin consti-

tutes binding circuit precedent. It refuses to follow this precedent

because it believes that we must apply Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984) deference to

the BIA’s contrary interpretation of § 1101(a)(22). I cannot agree and

so must dissent. Given our recent precedent, we must interpret

§ 1101(a)(22) without applying Chevron deference to the agency’s

interpretation. Therefore, we must conclude that applications for citi-

zenship demonstrate permanent allegiance and that Luis Puentes Fer-

nandez is a national under § 1101(a)(22). See Morin, 80 F.3d at 126.

For this reason I would grant Fernandez’s petition for review.

In reaching its holding, the majority heavily relies on National

Cable & Telecommunications Ass’n v. Brand X Internet Services, 545

U.S. 967 (2005). But, Brand X only governs if "Chevron’s frame-

work" applies, id. at 980 — if the agency is "otherwise entitled to

Chevron deference," id. at 982. Courts must accord an administrative

agency Chevron deference only if Congress has delegated authority

to the agency to clarify a statutory ambiguity. Bustamente-Barrera v.

Gonzales, 447 F.3d 388, 393 (5th Cir. 2000). Congress has not done

so here, and until today no court has held that it has.

Although some of our sister circuits have disagreed with Morin’s

interpretation of § 1101(a)(22), every court that has reached the ques-

tion has held — either explicitly or implicitly — that courts owe no

Chevron deference to the BIA’s interpretation of that statute. See

Abou-Haidar v. Gonzales, 437 F.3d 206, 207-08 (1st Cir. 2006);

Marquez-Almanzar v. INS, 418 F.3d 210, 219 (2d Cir. 2005);

Sebastian-Soler v. U.S. Attorney Gen., 409 F.3d 1280, 1283 (11th Cir.

2005) (per curiam); Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.

24 FERNANDEZ v. KEISLER

2004); Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 967 (9th Cir.

2003); see also Hughes v. Ashcroft, 255 F.3d 752, 755-58 (9th Cir.

2001); cf. United States v. Jimenez-Alcala, 353 F.3d 858, 861 (10th

Cir. 2003) (adopting Ninth Circuit view of the term "national" in a

criminal case without discussion of Chevron). True, one circuit has

declined to resolve that question, see Salim v. Ashcroft, 350 F.3d 307,

309 n.2 (3d Cir. 2003) (per curiam), and one has briefly questioned

its earlier explicit holding, see Marquez-Marquez v. Gonzales, 455

F.3d 548, 554 n.12 (5th Cir. 2006). But before the majority’s ruling

today, no court has ever held that Chevron deference applies to the

BIA’s interpretation of "national" in § 1101(a)(22).

There is good reason for this unanimity. As our sister circuits have

reasoned, "the BIA’s interpretation is not entitled to [Chevron] defer-

ence" because in the removal context Congress has placed "determi-

nation of nationality claims solely in the hands" of the courts.

Perdomo-Padilla, 333 F.3d at 967; see also, Sebastian-Soler, 409

F.3d at 1283. The Immigration and Nationality Act explicitly directs

that a "court shall decide the nationality claim." 8 U.S.C.A.

§ 1252(b)(5)(A) (West 2005). This provision is followed by the limi-

tation that "[t]he petitioner may have such nationality claim decided

only as provided in this paragraph." 8 U.S.C.A. § 1252(b)(5)(C)

(West 2005); see also, Perdomo-Padilla, 333 F.3d at 967 (citing stat-

ute and holding that "Congress did not grant discretion to the BIA to

decide questions of law related to nationality"); accord Alwan, 388

F.3d at 510; Hughes, 255 F.3d at 758.

The majority’s holding not only creates a conflict with at least four

other circuits, it also conflicts with our own precedent. In Morin, we

too implicitly concluded that the Chevron framework did not apply to

determinations of nationality and so interpreted § 1101(a)(22) without

considering the BIA’s views. Although Morin defined "national" in

the criminal context, we most assuredly cannot interpret the same

statute differently in different cases. See Perdomo-Padilla, 333 F.3d

at 972 (refusing in removal case to distinguish Morin on basis of

criminal context). Moreover, in Dragenice v. Gonzales, 470 F.3d 183,

187-89 (4th Cir. 2006), we recently interpreted § 1101(a)(22)’s defi-

nition of "national" in the immigration context without affording

Chevron deference or even considering BIA decisions.

FERNANDEZ v. KEISLER 25

I would follow our sister circuits and our own precedent in Morin

and Dragenice and decline to apply Chevron deference here. I fear

that the majority’s disagreement with Morin’s interpretation of

§ 1101(a)(22) has led it to defer to the BIA on nationality questions

that Congress has entrusted to the judiciary.