Rios-Valenzuela v. Department of Homeland Security

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 25, 2007

No. 06-50710 Charles R. Fulbruge III

Clerk

Arturo RIOS-VALENZUELA

Plaintiff-Appellant

v.

DEPARTMENT OF HOMELAND SECURITY et al.

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:05-CV-389

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Arturo Rios-Valenzuela appeals from a district court dismissal of his suit

seeking a declaratory judgment that he is a citizen of the United States. We

affirm.

I

Rios was born in 1956 in Mexico. He claims that his mother was

unmarried to his father, and an American citizen at the time, hence she needed

only to have been present in the United States for one continuous year for him

No. 06-50710

to be a citizen.1 The Government contends that Rios’s parents were married

Mexican citizens when he was born.

In 1975, the INS granted an application for a green card for Rios filed by

his mother, and he moved to the United States. In 1989, the Government

deported Rios to Mexico because of his conviction for a drug crime.

In October 2003, Rios reentered the United States by claiming to be an

American citizen. On January 20, 2004, the Government issued a Notice to

Appear, placing Rios in removal proceedings. The next day, the Government

charged him with criminal illegal reentry. Rios claims that it was only during

this period that he realized his claim to citizenship; consequently, on May 12,

while the removal proceeding was pending, Rios filed a Form N-600, Application

for Citizenship, with United States Citizenship and Immigration Services

(USCIS). On August 13, the District Director of USCIS in El Paso denied the

application. Rios appealed to the Administrative Appeals Unit (AAU). On

September 17, the Government dropped the criminal charges.

On January 14, 2005, while the appeal from the first denial of the N-600

was pending, Rios filed another N-600 with the same District Director. The

immigration judge presiding over the removal proceedings held a hearing on

March 15, 2005. Rios defended against removal in the proceedings by

submitting evidence of his citizenship. The immigration judge terminated the

removal proceedings without prejudice.

On April 1, the AAU rejected Rios’s appeal. On August 16, a Service

Officer at the USCIS El Paso District processing the second application

interviewed Rios and explained the need for evidence of his mother’s presence

in the United States, giving him twelve weeks to provide such evidence.

1

See 8 U.S.C. § 1409(c).

2

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On October 21, Rios filed the instant case in district court, seeking a

declaratory judgment that he is a citizen, having exhausted his administration

remedies by filing the first N-600 and appealing its denial. Rios claimed he was

in “legal limbo” because he was allowed to remain in the country but refused

proof of citizenship. Later, on November 16, the District Director denied Rios’s

second application as abandoned because Rios had produced no evidence to the

USCIS.

In district court, the Government moved to dismiss for lack of jurisdiction.

The court granted the motion, and Rios appealed.

Subsequent to oral argument, the Government issued a new Notice to

Appear, re-instituting removal proceedings against Rios. According to Rios, he

has asserted his citizenship as a defense to removal and filed a Motion to

Terminate or, in the alterative, a Motion to Administratively Close Removal

Proceedings. A final merits hearing has not yet been held.

II

As we are reviewing a dismissal for lack of subject matter jurisdiction, our

review is de novo.2

A

A person generally may pursue a citizenship claim in two ways. First, if

the person is in removal proceedings he can claim citizenship as a defense. If the

immigration judge rejects the defense and orders removal, the person can, after

properly exhausting administrative channels, petition this court under 8 U.S.C.

§ 1252(b) for review of the final order of removal, including for review of the

citizenship claim. However, if the immigration judge accepts the citizenship

defense, she terminates the removal proceedings without deciding citizenship.3

2

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1252 (5th Cir. 1998).

3

See Ng Fung Ho v. White, 259 U.S. 276, 284 (1922); Chau v. I.N.S., 247 F.3d 1026,

1027-28 (9th Cir. 2001).

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Second, a person can affirmatively seek proof of citizenship by filing with

USCIS a Form N-600, Application for Citizenship, under 8 U.S.C. § 1452(a). If

the application is denied, he can appeal to the AAU under 8 C.F.R. §§ 341.6,

103.3(a). If the AAU affirms,4 the person can seek a judicial declaration of

citizenship under 8 U.S.C. § 1503(a), which provides:

If any person who is within the United States claims a right or

privilege as a national of the United States and is denied such right

or privilege by any department or independent agency, or official

thereof, upon the ground that he is not a national of the United

States, such person may institute an action under the provisions of

section 2201 of Title 28 against the head of such department or

independent agency for a judgment declaring him to be a national

of the United States, except that no such action may be instituted

in any case if the issue of such person’s status as a national of the

United States (1) arose by reason of, or in connection with any

removal proceeding under the provisions of this chapter or any other

act, or (2) is in issue in any such removal proceeding.

B

When Rios initially appealed, the issue before the court was whether 8

U.S.C. § 1503(a)(1) deprived the district court of jurisdiction. However, the

Government has initiated another round of removal proceedings, raising the

issue of whether § 1503(a)(2) bars jurisdiction over Rios’s claim. The

Government argues in a letter brief filed at this court’s request that, if Rios

raises his citizenship as a defense in the new removal proceedings, “then the

provisions of 8 U.S.C. § 1503(a)(2) clearly deprives the district court of

jurisdiction over Plaintiff’s claims.” In his letter brief, Rios indicates that he has

raised citizenship as a defense.

Section 1503(a)(2) provides that “no [declaratory judgment] action may be

instituted in any case if the issue of such person’s status as a national of the

United States . . . is in issue in any such removal proceeding.” Rios contends

4

A person must exhaust the agency procedures.

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that the exception does not deprive the courts of jurisdiction because there were

no removal proceedings pending when he filed his declaratory judgment action.

We agree. The statute states that a § 1503(a) claim may not be instituted when

the claimant’s citizenship is in issue in a removal proceeding. The exception

does not say that a purported citizen may not maintain or continue an already

filed declaratory judgment action when the Government subsequently begins

removal proceedings and citizenship there comes into issue. Rather, we read

“institute” in this context to mean “[t]o initiate; begin.”5 The purported citizen’s

citizenship cannot, logically, be “in issue in [a] removal proceeding” unless there

is a removal proceeding pending. In other words, a purported citizen may not

initiate or begin a declaratory judgment action to establish his citizenship if it

is already being litigated in a removal proceeding. This reading of the exception

does not run afoul of the concern that persons will use § 1503(a) to circumvent

the administrative removal process; if there are no removal proceedings pending

when a declaratory judgment action is brought, there is nothing for the claimant

to circumvent.

C

We turn our attention to § 1503(a)(1). The district court noted that Rios

did not file his N-600 application before the commencement of removal, “a

situation where this court would have jurisdiction.” It noted further, “[a]s a

challenge to his removal, during those removal proceedings [Rios] claimed that

he was a United States Citizen.” Thus, the court concluded,

it is beyond dispute that questions as to [Rios’s] citizenship arose

after the initiation of removal proceeding . . . and [Rios] cannot

obviate Congressional intent limiting the manner in which claims

of nationality may be raised following the initiation of removal

proceedings pursuant to § 1252(b)(5) by also pursuing an alternative

5

The American Heritage Dictionary defines institute as a verb to mean “[t]o establish,

organize, and set in operation”; “[t]o initiate, begin”; and, “[t]o establish or invest in an office

or position.”

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No. 06-50710

claim of citizenship, where his claim to citizenship also arose by

reason of or in connection with his removal proceedings.

Consequently, the court dismissed for lack of jurisdiction because “the issue” of

Rios’s citizenship “arose by reason of, or in connection with” his removal

proceeding.

Rios argues that the district court’s interpretation of § 1503(a)(1) as

barring jurisdiction over any claim based on the denial of citizenship simply

because the claim was made after the initiation of removal proceedings expands

the statute beyond its plain meaning. The Government agrees that timing of the

application alone does not control. What matters, the Government argues, is

that the issue of citizenship arose in connection with Rios’s removal proceeding.

The text of the statute supports the Government; “[t]he exception applies

to claims of nationality raised in removal proceedings.”6 It is the context of how

the particular issue of citizenship arose rather than the mere timing of events

that determines the applicability of § 1503(a)(1). The exception precludes

jurisdiction over Rios’s citizenship claim because his claim “arose by reason of,

or in connection with” his removal proceeding: the issue of Rios’s citizenship that

forms the basis of his claim here originates, at the least, in connection with the

removal proceedings.

The N-600 application process is, as Rios argues, a proceeding separate

from the removal proceedings. But § 1503(a)(1) does not apply depending on

whether the proceedings are separate; rather, it applies when the particular

citizenship issue “arose” in the removal proceeding. That is, the exception

focuses on the proceeding in which the particular claim to citizenship originates,

not the proceeding in which it is being pursued.

6

Said v. Eddy, 87 F. Supp. 2d 937, 941 (D. Alaska 2000).

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No. 06-50710

Nor does it matter that the removal proceedings had ended when Rios

brought his claim for declaratory judgment. As the district court in Alaska

explained,

The text of the statute does not support such a conclusion. If the

exceptions apply only while a removal proceeding is still pending,

then the first exception would be superfluous since the second

exception covers instances where the removal proceeding is still

pending. The past tense ‘arose’ used in the first exception also

indicates that this provision applies to concluded removal

proceedings.7

We are persuaded by and adopt the court’s analysis.8

Rios argues that this construction of the exception means that jurisdiction

under § 1503(a) is always precluded when citizenship first arises in a removal

proceeding, but we do not read the exception as forever hanging an albatross

around the neck of those who first raise citizenship as a defense in a removal

proceeding.9 So long as a citizenship claim finds its genesis outside of the

context of removal proceedings, the exception is no bar to jurisdiction;10 thus, for

7

Id. at 941.

8

But see North v. Rooney, Civil No. 03-1811, 2003 WL 21432590, at *4 (D.N.J. June 18,

2003) (“With no removal proceedings presently ongoing at this time, this action seeking judicial

review by declaratory judgment does not likely ‘arise out of, or in connection with’ a removal

proceeding.”). We are not persuaded by North on three accounts. First, the district court

changed the tense of the verb in the exception from “arose” to “arise.” If the exception applied

when a citizenship issue “arise[s]” in a removal proceeding, Rios-Valenzuela’s argument might

have some purchase. Second, the North court immediately qualified its analysis of the

exception: “Moreover, the issue of plaintiff's citizenship actually arose well before the

commencement of the 1999 removal proceedings as demonstrated by plaintiff's argument that

his citizenship status was fully litigated and determined in his favor by an Immigration Judge

ruling in 1989 . . . .” Id. (emphasis added). Finally, the Said court’s analysis is more consistent

with the statute’s structure and text.

9

See Samuel Taylor Coleridge, The Rime of the Ancient Mariner.

10

See, e.g., Benjamin v. Bureau of Customs, 401 F. Supp. 2d 184, 185-86 (D. Conn.

2005) (explaining that, even though a petition under § 1252(b) was time barred, the petitioner

could still file an N-600 application and receive judicial review if the application were denied);

Said, 87 F. Supp. 2d at 943 (explaining that, even though petitioner could not at that time

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No. 06-50710

example, once removal proceedings have run their full course and terminated,

any future citizenship claim would not arise in those removal proceedings.11 The

Government concedes this, explaining that “[i]f Rios-Valenzuela were to again

apply for citizenship at some future time, when no removal proceedings have

been initiated, and the claim is denied, then, according to Said, he would have

a right to seek declaratory judgment.”12 This narrower reading is consistent

with the concern that the federal courts not be used as tools to frustrate and

interfere with removal proceedings.

This straightforward reading of the statute appears to leave Rios in limbo,

victorious in the removal action against him, yet unable to obtain judicial review

of his claim of citizenship through review of the executive’s denial of his N-600

application. The inability to obtain judicial review, Rios urges, implicates his

due process rights to judicial review of his citizenship claim. He argues,

therefore, that this court should look beyond the straightforward reading of the

statute to the purpose of § 1503(a), which is to channel litigation over the issue

of citizenship into removal proceedings, where relevant, so as to prevent the

courts from interfering with those proceedings through declaratory judgment

actions attending N-600 applications. Under this approach, the statute would

foreclose judicial review of N-600 applications where removal proceedings are

pending or were terminated unfavorably to the alien.13

pursue a declaratory judgment action under § 1503(a), the petitioner could obtain judicial

review of when at “some future time” the Government denied her a “right or privilege”

attending citizenship).

11

Of course, if the person claiming to be a citizen loses in the removal proceedings, the

appropriate means for judicial review of his citizenship claim is § 1252(b).

12

Government-Appellee’s Brief at 14 (referring to Said, 87 F. Supp. 2d at 943)

(emphasis added).

13

Again, where an alien fails in defending against removal on the basis of citizenship,

he may obtain judicial review of his citizenship claim through § 1252.

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This argument does not persuade. First, the doctrine of constitutional

avoidance is not without limits. The doctrine does not permit courts to impose

upon a statute an interpretation that does violence to its plain language: “It is

a tool for choosing between competing plausible interpretations of a statutory

text, resting on the reasonable presumption that Congress did not intend the

alternative which raises serious constitutional doubts. The canon is thus a

means of giving effect to congressional intent, not of subverting it.”14 The

interpretation of § 1503(a) that Rios urges cannot be found in the text of the

statute itself; it is discoverable only in the purported purposes of Congress. But

for us to apply the doctrine of constitutional avoidance, we must be able to foot

the interpretation in the statute’s text. The doctrine of avoiding interpretations

of statutes that lead to absurd results is similarly limited.15

Second, the due process jurisprudence upon which Rios relies is not

squarely on point. Ng Fung Ho v. White and its progeny consider whether a

person claiming to be a citizen in a deportation proceeding has a due process

right to a judicial determination of his citizenship before he is deported.16 The

Supreme Court in Ng Fung Ho held that such a person does, but indicated that

it is deportation that works the liberty deprivation that triggers due process, not

the claim to citizenship standing alone:

Jurisdiction in the executive to order deportation exists only if the

person arrested is an alien. The claim of citizenship is thus a denial

14

Clark v. Martinez, 543 U.S. 371, 381-82 (2005) (citations omitted and emphasis

added).

15

See Haggar Co. v. Helvering, 308 U.S. 389, 393 (1940) (“A literal reading of [statutes]

which would lead to absurd results is to be avoided when they can be given a reasonable

application consistent with their words and with the legislative purpose.” (emphasis added)).

While the statutory scheme inconveniences Rios by forcing him to jump through extra hoops,

that does not translate into an absurd result.

16

259 U.S. 276 (1922); see also Agosto v. I.N.S., 436 U.S. 748 (1978); Kessler v. Strecker,

307 U.S. 22 (1939).

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of an essential jurisdictional fact. . . . To deport one who so claims

to be a citizen obviously deprives him of liberty . . . . It may result

also in loss of both property and life, or of all that makes life worth

living. Against the danger of such deprivation without the sanction

afforded by judicial proceedings, the Fifth Amendment affords

protection in its guarantee of due process of law.17

We do not read either Strecker or Agosto as expanding White to include a due

process right to judicial review of a stand alone claim to citizenship. In both

Strecker and Agosto, the Government was attempting to deport the petitioner.

In isolation, Agosto’s description of White’s holding as being that “a resident of

this country has a right to de novo judicial determination of a claim to United

States citizenship”18 supports Rios’s position. But this description is not faithful

to Ng Fung Ho, which the Court had just quoted, and it conflicts with the Court’s

description of its case law that immediately precedes that comment: “Congress

was aware of our past decisions holding that Constitution requires that there be

some provision for de novo judicial determination of claims of American

citizenship in deportation proceedings.”19

Rios has not suffered a deprivation similar to deportation. Nor has he

pointed to any other deprivations of “life, liberty, or property” before this court

upon which to anchor his due process claim. The only basis upon which Rios

asserts a due process right is that the Government has not recognized his

citizenship; thus, to credit Rios’s argument is to find that a due process right

inheres naturally in a claim to citizenship itself, which in some circumstances

allows the courts to consider – and ultimately recognize – a claim to citizenship

outside of the procedures established by Congress.

17

259 U.S. at 284-85.

18

436 U.S. at 753.

19

Id.

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The argument is not without intuitive force; but we decline the invitation

to find such a right now. First, the case law does not clearly support such a

right. We have explained that “[t]hose persons not born in the United States

may only acquire citizenship by birth as provided by Acts of Congress,”20

although there appears to be disagreement within the Supreme Court on this

point.21 Section 1503(a)(1), albeit procedural and not substantive, is part of the

panoply of congressional acts that determines how those born outside the United

States – as Rios was – acquire citizenship. Second, we do not perceive Rios’s

plight as being as dire as he suggests – though it is admittedly less than ideal.

First, Rios might not prevail in the current removal proceedings; if he fails, he

will be able to raise his citizenship claim through § 1252(b). Second, Rios can

attempt to reopen his second N-600 application and prove his citizenship that

way; we express no view now on whether the reopened application would survive

§ 1503(a)(1)’s jurisdictional bar if pursued with appropriate attention to any

removal proceedings. Finally, by its plain terms and judicial interpretation, §

1503(a) does not limit the rights or privileges that trigger its applicability to N-

600 applications alone; however, because the parties have neither briefed nor

raised the issue, we express no view on how § 1503(a) fits within the full scheme

of immigration statutes apart from the narrow facts of this case. Rios does not

20

Nguyen v. I.N.S., 208 F.3d 528, 532 (5th Cir. 2000).

21

Compare Nguyen v. I.N.S., 533 U.S. 53, 71-73 (2001) (declining to address the issue

of whether courts are able to confer “citizenship on terms other than those specified by

Congress” or “assess the implications of statements in our earlier cases regarding the wide

deference afforded Congress in the exercise of its immigration and naturalization power”), with

id. at 73-74 (Scalia, J., concurring) (stating his view that courts have no power to confer

“citizenship on a basis other than that prescribed by Congress” but concluding from the

multiplicity of opinions in Miller v. Albright, 523 U.S. 420 (1998), and the instant case that a

majority of justices think otherwise), with id. at 96-97 (O’Connor, J., dissenting) (“The instant

case is not about the admission of aliens but instead concerns the logically prior question

whether an individual is a citizen in the first place. A predicate for application of the deference

commanded by Fiallo [v. Bell, 730 U.S. 787 (1977),] is that the individuals concerned be aliens.

But whether that predicate obtains is the very matter at issue in this case.”).

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No. 06-50710

have an easy avenue by which he might bring his citizenship claim before the

courts, but we do perceive avenues by which he might do so. Accordingly, we

will not disturb the statutory scheme established by Congress.

AFFIRMED.

12