Opposition Brief — Perdomo-Padilla v. Ashcroft

Supreme Court, U.S. |

FILED

|

> DECS - 2003

No. 03-445 OFFICE OF THE CLERK

— Jn the Supreme Court of the Gnited States

JOSE LUIS PERDOMO-PADILLA, PETITIONER

Vv.

JOHN D. ASHCROFT, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

FRANCIS W. FRASER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) oe

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QUESTION PRESENTED

Whether petitioner’s filing of an application for natu-

ralized United States citizenship changed his immi-

gration status from that of an alien to that of a national

of the United States.

(I)

TABLE OF CONTENTS

Page

Opinions below .......sessssssecseessesesneseneesnrsneensessncenecsneeneseseenecsnenneeneeans 1

II i cacsvinsvexnsesvensevsaresenvevansnensenonsvsnsensennncnineseconsnanentonseeoneaneon 1

a lsaseannnbvonemnmeneenenintnainaianseninguaes 1

ALgument .......cccsscsscssssssssssesessecsecsnsenecnssnssnssnsseecssnsscnesnsssesneneneeneey 7

ERNIE svescscsressessrsesconreenninevonmpnesnocsvens Ssuisicanniaeibenieeinassemmnatitiansnos 14

TABLE OF AUTHORITIES

Cases:

Carreon-Hernandez v. Levi, 543 F.2d 637 (8th Cir.

1976), cert. denied, 430 U.S. 957 (1977) ......sscsesesseesseseeeenees 10

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) ........++0 4

Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001) ............ 7

Johnson v. Eisentrager, 339 U.S. 763 (1950) ........seseeee 13

Miller v. Albright, 523 U.S. 420 (1998) .......sssssessesssseesees 4,8

Navas-Acosta, In re, 23 I. & N. Dec. 586 (BIA

IE cscs sses-anadinsesisntsseaneevasaincednaninninennensennunpnorievinnvevessneecenenenoune 4

Oliver v. INS, 517 F.2d 426 (2d Cir. 1975), cert.

denied, 423 U.S. 1056 (1976) ........cssecsessssneeneensesssenceseensseeees 10

Rogers v. Bellei, 401 U.S. 815 (1971) .....ssssessssessserssesneeeneees 2

Salim v. Ashcroft, No. 02-2244, 2003 WL 22751083

(3d Cir. July 15, 2008) ......sssscsessessesssensensenseneenssssenssesnseneeneneess 12

Shomberg v. United States, 348 U.S. 540 (1955) .........++ 9

United States v. Morin, 80 F.3d 124 (4th Cir.

1996) ..crccccocsssssssrcsservsssovcnssnssesessssvsssonseseessscnssconens 7, 8, 10, 11, 12

Statutes and regulations:

Homeland Security Act of 2002, Pub. L. No. 107-296,

116 Stat. 2135:

§ 441(2), 116 Stat. 2192 (to be codified at 6 U.S.C.

RIES scconsassisnnonteianthinannandhnssbiinstnntennninensscunianinninuvennienees 2

§ 451(b), 116 Stat. 2196 (to be codified at 6 U.S.C.

BID cccniioesnenecisnsaininsnnahnsniivreennceritnnnnetnnenanenetnatuenesensiey 2

(IIT)

IV

Statutes and regulations—Continued: Page

Immigration and Nationality Act, 8 U.S.C. 1101

OF BIE. sorvevsesersnnsnrcunieserseesnesnbenesnineemnnainnsenncconadeassnnnensinabeinnsneatenes 1

EG, ID eciseteviiicccinscinininiisnsianppinsntinniinnnies 2

B UBC. ERDIGR NAR) nccrccevesesiveniornenes 2,3, 4, 7, 8, 11, 12, 13

BS UB.C. LIDIA) asenesecevececsresereescsnees 4,6, 8, 9, 10, 12

BS UBC, TIGA NB) .-ceversrecncevorescovereensenesomnnnsvevensnisins 2,5,9

UTR, BI cctecciensitsinhiininsecnnnisomaimniininisitiniin 8

DUEL). RID eicecenesineiiciensinicitsssisinvinininicinnneniaininien 3

TILES. TD weervessinsesenintnisnoninnoneen siteesicbiiidsinteasniueibania 1

© UE TD terscitinceriecensinnionnieenesinannainiennanies 2

A, TED sicreiceievcenneneninccnineninnitiimanianisiigis 2

DU AK, Cee ceessscsesiarsnmsiinisininninsiionsianinannanaiiacinion 3

AN. WIE isiccsecnincnnicinneseensetensitsiaennsvienantnanonatiniiina 5, 8, 10

BS UEL., TID) seceeensiscrccinnnirininitnsainianianinnnnveiannn 5

EEG BE ceeviniecnsienssensesionisnisiteenetabinintmninnnans 6, 7, 9, 13

BE Ra BD seereisnsssssainsseticnsciestanbianeaaaiionitenaiaahaanianniitiniieadas 10

DT, TE ciccenininiinssitcnngueiniiteniiteniininiainnniapimmsiine 6

SETA, BERD erecsersinsossintcsnecivessnisinssiiatnetninsiaintalinatialiacain 9

18 U.S.C. 1968(a) ......... srithathatneiiainbelbiietabaiisteann tain eine 11

BG EEA FED sterenenininrniinatininisinninymsiiiaaeniaineianataa 11

Be FA SD eetierinnsschniientsniciniinsivniseiietiniepaatanctinicaiitaniaitinnaiians 11

BR EF BED erecscsensicincnsveniiensstnisiiuinecenbineininenntiniaianinnaaiein 2

BE TE GA BG cxicscrctenivenesrvinsiseenunnninienniacmniitiniaimainnuanionn 2

8 C.F.R.:

BP BEE scxssevsvicnieeinnteensisannnninnsaninintatiiienniiaiiniicanieniecamaniiiamnnete 10

Pt. 335

TIO BD enicciiesncitinnninninmnnniniaiammenninenin 9

Pt. 337:

OCR TGA RO wieeennsrntisnnmnineciianiniinidoninnmnaintmminaas 9

RO ee MUD sacssinitsniiciinistisnsatsiasiniaincceniaiubitmnnsieiianinttin 8

Miscellaneous:

Aliens and Nationality; Homeland Security;

Reorganization of Regulations, 68 Fed. Reg.

9830-9846 (2003) (to be codified at 8 C.F.R. Pts.

PEED suhscinsiesncavniniinnesistinsieasipaiabiidenisinannmumdanineeinn 2

In the Supreme Court of the Anited States

No. 03-445

JOSE LUIS PERDOMO-PADILLA, PETITIONER

Vv.

JOHN D. ASHCROFT, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-15) is

reported at 333 F.3d 964. The order of the Board of

Immigration Appeals (Pet. App. 16-17) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 23, 2003. The petition for a writ of certiorari was

filed on September 22, 2003 (a Monday).

STATEMENT

1. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seq., certain classes of aliens are

subject to removal from the United States. See 8

U.S.C. 1227(a). The INA defines the term “alien” to

mean “any person not a citizen or national of the United

(1)

2

States.” 8 U.S.C. 1101(a)(3). Under 8 U.S.C.

1101(a)(22), “[t]he term ‘national of the United States’

means (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.”

2. Petitioner is a native and citizen of Mexico who

was admitted to the United States as a lawful perma-

nent resident alien in 1982. Pet. App. 2-3. In July 1997,

petitioner filed with the Immigration and Naturaliza-

tion Service (INS) an Application for Naturalization as

a citizen of the United States, on which he answered

“yes” to a series of questions, including the question

whether he was “willing to take the full Oath of Alle-

giance to the U.S.” Jd. at 3.’

In October 1999, petitioner was convicted in federal

district court, after a guilty plea, of conspiring to dis-

tribute marijuana, in violation of 21 U.S.C. 841(a)(1) and

846. Petitioner was sentenced to a term of imprison-

ment of 30 months, to be followed by four years of

supervised release. A.R. 85-88.

1 Naturalized citizenship is citizenship that is conferred after

birth. See generally Rogers v. Bellei, 401 U.S. 815, 822 (1971); see

also 8 U.S.C. 1101(a)(23) (defining “naturalization” for purposes of

INA). On March 1, 2003, functions of several border and security

agencies, including certain functions of the former INS, were

transferred to the Department of Homeland Security. See Home-

land Security Act of 2002, Pub. L. No. 107-296, §§ 441(2), 451(b),

116 Stat. 2192, 2196 (to be codified at 6 U.S.C. 251(2), 271(b)). The

Attorney General remains responsible for the administrative ad-

judication of removal cases by immigration judges and the Board

of Immigration Appeals. See Aliens and Nationality; Homeland

Security; Reorganization of Regulations, 68 Fed. Reg. 9830-9846

(2003) (to be codified at 8 C.F.R. Pts. 1001-1337) (Justice Depart-

ment implementing regulations as recodified after Homeland

Security Act).

3

3. In January 2001, the INS commenced removal

proceedings against petitioner based on his drug-

trafficking conviction. Pet. App. 3; see 8 U.S.C.

1101(a)(43)(B), 1227(a)(2)(A)Gii) and (B)(i).. In March

2001, an immigration judge (IJ) detérmined that peti-

tioner is removable from the United States as charged

by the INS, and ordered petitioner removed to Mexico.

Pet. App. 3; see A.R. 37-38.

In his administrative appeal to the Board of Immi-

gration Appeals (BIA), petitioner argued that he was

not an alien, but rather a national of the United States

(and therefore not subject to removal) by virtue of his

pending application for naturalized citizenship. Pet.

App. 16. In August 2001, the BIA dismissed peti-

tioner’s appeal. The BIA determined that petitioner’s

claim to be a national of the United States had not been

presented to the IJ and the IJ had not ruled upon it

and, therefore, the claim was not properly before the

BIA. Jd. at 16-17. The BIA further concluded that pe-

titioner’s claim of United States nationality failed be-

cause, in his removal proceeding, petitioner submitted

no evidence that he actually applied for naturalization.

Id. at 17. .

4. The Ninth Circuit denied petitioner’s ensuing

petition for review. Pet. App. 1-15. The court of ap-

peals concluded that, under 8 U.S.C. 1101(a)(22), a per-

son who is not a national of the United States at birth

may become a national of this country only through a

grant of naturalization as a citizen and not, as petitioner

2 The BIA also determined that petitioner’s argument was not

supported by any decisions of the Third Circuit, where the BIA

apparently believed petitioner’s case arose. In fact, petitioner’s

case was heard by an IJ within the Ninth Circuit and, therefore,

judicial review was in the Ninth Circuit. See 8 U.S.C. 1252(b)(2).

d

argued, by submitting an application for naturalization

that contains a statement of willingness to take an oath

of allegiance to the United States. Pet. App. 4.

The court of appeals declined to defer to the BIA’s

determination, in a decision issued after the decision in

petitioner’s case, that United States nationality may be

acquired under the INA only at birth or through a

grant of naturalized citizenship. Pet. App. 5 (discussing

In re Navas-Acosta, 23 I. & N. Dec. 586 (BIA 2003)).

Nevertheless, the court independently reached the

same conclusion.

The court of appeals first observed that although all

citizens of the United States are nationals of the United

States, some United States nationals are not United

States citizens. Historically, non-citizen nationals have

been persons born in outlying territories of the United

States (currently, American Samoa and Swains Island).

Pet. App. 6-7 (citing, inter alia, Miller v. Albright, 523

U.S. 420, 467 n.2 (1998) (Ginsburg, J., dissenting);

Hampton v. Mow Sun Wong, 426 U.S. 88, 90 n.1 (1976)).

The court determined that the text and structure of the

INA are consistent with that traditional understanding

that the term “national,” when used to describe non-

citizens, refers generally to persons born in territories

of the United States, and not applicants for naturalized

citizenship. Pet. App. 8.

The court emphasized (Pet. App. 8-9) that, under 8

U.S.C. 1101(a)(22), a United States national who is not a

citizen of the United States must “owe[] permanent al-

legiance to the United States.” 8 U.S.C. 1101(a)(22)(B).

Applicants for naturalized citizenship cannot satisfy

that requirement, the court explained, because an appli-

cation for naturalization “does not require the applicant

presently to pledge permanent allegiance to the United

States,” but rather asks whether the alien is “willing to

5

take the full Oath of Allegiance” in the future. Pet.

App. 8 n.4 (internal quotation marks omitted). Thus,

the court continued, an alien whose naturalization appli-

cation is withdrawn or denied will not take the oath of

allegiance, and could withdraw any statement of pro-

spective intent to take an oath of allegiance that was

made in the naturalization application. Jd. at 8-9 & n.4.

The court of appeals next relied on 8 U.S.C.

1101(a)(23), which provides that “[t]he term ‘naturaliza-

tion’ means the conferring of nationality of a state upon

a person after birth, by any means whatsoever.” The

court noted that “Section 1101(a)(23) makes no provi-

sion for the attainment of nationality short of full natu-

ralization and, therefore, is consistent with our conclu-

sion that one may become a ‘national of the United

States’ only through birth or by completing the process

of becoming a naturalized citizen.” Pet. App. 10.

The court “f[ouJnd further support” for its rejection

of petitioner’s argument in 8 U.S.C. 1408. Pet. App. 10.

Section 1408 identifies four categories of persons who

are “nationals, but not citizens, of the United States at

birth”: (1) persons born in an outlying possession of the

United States; (2) persons born abroad to parents who

are non-citizen nationals of the United States and who

met a requirement of residency in the United States or

an outlying possession at the time of the birth; (3) cer-

tain persons of unknown parentage found in an outlying

possession of the United States; and (4) persons born

outside the United States and its outlying possessions

to one parent who is an alien and one parent who is a

qualifying non-citizen national of the United States. 8

U.S.C. 1408(1)-(4). The court of appeals observed that

Congress's listing of those birthright non-citizen nation-

als, without identifying any category of persons who

6

can attain the status of a non-citizen national after birth,

“is significant” in this case. Pet. App. 10.

Next, the court observed (Pet. App. 11) that 8 U.S.C.

1481 specifies certain acts (such as obtaining foreign

naturalization or serving in a foreign army that is

engaged in hostilities against the United States) that, if

voluntarily performed by “[a] person who is a national

of the United States whether by birth or naturaliza-

tion,” terminate United States nationality. 8 U.S.C.

1481 (emphasis added). The court noted that Section

1481, “[b]y mentioning only birth and naturalization as

reasons why a person would be a national of the United

States, * * * implies that those are the only ways in

which a person can attain the status of a national.” Pet.

App. 11.

Finally, the court of appeals pointed to 8 U.S.C. 1429

as a further demonstration that Congress did not intend

for aliens who apply for naturalization to be treated, on

that basis, as nationals of the United States. Pet. App.

11. Section 1429 states in pertinent part that “no

person shall be naturalized against whom there is

outstanding a final finding of deportability * * * ; and

no application for naturalization shall be considered

* * * if there is pending against the applicant a re-

moval proceeding.” 8 U.S.C. 1429. The court of appeals

determined that “(t]he natural reading of this statute is

that removal proceedings and final removal orders are

to take precedence over naturalization applications.

Because the INA permits the removal of aliens only,

and § 1429 allows the removal of individuals with

pending naturalization applications,” the court con-

tinued, “it is clear that Congress viewed applicants for

naturalization as aliens and not as nationals.” Pet. App.

11. The court noted that, in light of Section 1429,

petitioner’s reading of Section 1101(a)(22) “would

7

paralyze” the removal process. Jbid. Aliens could file

naturalization applications after removal proceedings

already had begun, and thereby become nationals

ineligible for removal. Jbid. Those naturalization

applications, moreover, could not be granted, because

Section 1429 forbids the naturalization of an alien who

is in removal proceedings. Thus, nonsensically, there

would be a category of aliens in removal proceedings

who could be neither removed nor granted citizenship.

Id. at 11-12.

The Ninth Circuit rejected (Pet. App. 12-13) peti-

tioner’s argument that he is a national of the United

States under Hughes v. Ashcroft, 255 F.3d 752 (9th Cir.

2001). The court of appeals explained that in Hughes it

had “expressly declined to decide whether an applica-

tion for naturalization, standing alone, is sufficient to

confer nationality on an alien.” Pet. App. 13 (citing

Hughes, 255 F.3d at 757). Although the court of appeals

noted that a Fourth Circuit case, United States v.

Morin, 80 F.3d 124 (1996), supports petitioner’s con-

struction of Section 1101(a)(22), the Ninth Circuit found

Morin unpersuasive due to the absence of reasoning in

that decision. Pet. App. 14. The Ninth Cireuit further

concluded (id. at 15) that district court cases cited by

petitioner either contradict his claim to be a national of

the United States or, like Morin, did not address the

relevant statutory considerations when interpreting

Section 1101(a)(22).

ARGUMENT

The Ninth Circuit correctly determined that the

filing of an application for naturalized citizenship does

not transform the alien applicant into a national of the

United States. That determination is compelled by the

language and structure of the immigration laws and

8

consistent with the interpretation of the Board of

Immigration Appeals, see Pet. App. 5-6. It does not

conflict with any decision of this Court. The conflict

between the instant decision (and a more recent Third

Circuit decision) and United States v. Morin, 80 F.3d

124 (4th Cir. 1996), should have little or no continuing

significance, for reasons discussed below. Further

review by this Court is not warranted.

1. The Ninth Circuit has correctly interpreted

Section 1101(a)(22). As the court of appeals explained

(Pet. App. 6-8), petitioner’s argument that an applicant

for naturalized citizenship who expresses willingness to

take an oath of allegiance is a “national” of the United

States is contrary to the ordinary understanding—re-

flected in this Court’s decisions, see ibid. (citing cases),

as well as administrative regulations, see id. at 12

(quoting 14 C.F.R. 1259.101(c))—that a non-citizen

national of the United States is a person who has been

born in an outlying territorial possession of the United

States. See 8 U.S.C. 1408 (identifying persons who are

“nationals, but not citizens, of the United States at

birth” by reference to “outlying possessions” of the

United States); 8 U.S.C. 1101(a)(29) (defining “outlying

possession” to mean American Samoa and Swains

Island); see also Miller v. Albright, 523 U.S. 420, 467 n.2

(1998) (Ginsburg, J., dissenting).

Petitioner’s argument likewise finds no support

in the “plain language” (Pet. 14, 15) of Section 1101(a)

(22). Section 1101(a)(22)(B) provides that a non-citizen

national is someone “who owes permanent allegiance to

the United States.” 8 U.S.C. 1101(a)(22)(B) (emphasis

added). Although petitioner stated in his application

for naturalized citizenship that he would be “willing to

take the full Oath of Allegiance to the U.S.,” Pet. App.

3, he has not taken that oath, which would be adminis-

2

tered (generally in a public ceremony) after a deter-

mination of eligibility for citizenship and as part of the

formal conferral of citizenship, see 8 C.F.R. 337.1-337.3.

It is only at that point that a person loses his status as

an alien and transfers his obligations of citizenship and

allegiance from his former country of citizenship to the

United States. Moreover, in light of the possibility that

a naturalization application will be denied or with-

drawn, see 8 C.F.R. 335.10, petitioner could not demon-

strate, through the mere filing of an application for

naturalization, that he owes “permanent allegiance to

the United States” under Section 1101(a)(22)(B)..

Petitioner’s contention that he is a national of the

United States conflicts with other provisions of the

INA that the court of appeals identified. See Pet. App.

10-12. For example, if petitioner were correct and the

pendency of a naturalization application rendered him a

national who cannot be removed, then, under 8 U.S.C.

1429, aliens could defeat their removal proceedings by

filing naturalization applications (which, also under Sec-

tion 1429, immigration officials could not process). See

Pet. App. 11-12; see also Shomberg v. United States, 348

U.S. 540 (1955) (applying Section 1429).

Petitioner’s argument also is inconsistent with the

INA’s definition of “naturalization,” which means

“the conferring of nationality” after birth. 8 U.S.C.

1101(a)(23). If naturalization applications conferred

nationality, then, nonsensically, applicants for natural-

ized citizenship would acquire “naturalization” just by

applying for it, without any approval or conferral by the

government. See Pet. App. 10. Similarly, petitioner’s

claim that his application for naturalization conferred

nationality is at odds with 8 U.S.C. 1481(a), in which

Congress referred to the acquisition of the status of a

national “by birth or naturalization,” without men-

10

tioning the filing of a naturalization application as a

basis for United States nationality. See Pet. App. 11.

And, likewise, if petitioner were correct that naturaliza-

tion applications suffice to confer nationality, then Con-

gress logically would have listed applicants for natural-

ized citizenship along with birthright nationals as

“nationals, but not citizens, of the United States” in 8

U.S.C. 1408. See Pet. App. 10; see also 8 U.S.C. 1436

(providing for naturalization of non-citizen nationals); 8

C.F.R. Pt. 325 (same).

2. Contrary to petitioner’s assertions (Pet. 10-13),

there is no circuit conflict that warrants this Court’s

review. The instant decision does not conflict with

either Carreon-Hernandez v. Levi, 543 F.2d 637 (8th

Cir. 1976), cert. denied, 430 U.S. 957 (1977), or Oliver v.

INS, 517 F.2d 426 (2d Cir. 1975) (per curiam), cert.

denied, 423 U.S. 1056 (1976). Neither of those decisions

presented the question in this case, 7.e., whether the

filing of an application for naturalization demonstrates

permanent allegiance to the United States. Instead,

the Second and Eighth Circuits determined that aliens

who had not applied for naturalized citizenship lacked

permanent allegiance to the United States under Sec-

tion 1101(a)(22)(B). See Carreon-Hernandez, 543 F.2d

at 637-638; Oliver, 517 F.2d at 427-428 & n.3. The

Second Circuit, moreover, explained in Oliver—consis-

tent with the Ninth Circuit’s reasoning in this case—

that nationality can be established “only at birth; there-

after the road [to changing alien status] lies through

naturalization, which leads to becoming a citizen and

not merely a ‘national.’” Id. at 428.

Petitioner does correctly identify (Pet. 11-12) a con-

flict between the instant decision and United States v.

Morin, 80 F.3d 124 (4th Cir. 1996), concerning the inter-

pretation of Section 1101(a)(22)(B). Morin was a crimi-.

11

nal case in which the charges included murder-for-hire,

in violation of 18 U.S.C. 1958(a). Section 1958(a) re-

quires, inter alia, “intent that a murder be committed

in. violation of the laws of any State or the United

States.” To establish that element of the offense, the

government argued that the defendant attempted to

arrange a murder in the Philippines that would have

violated several Virginia murder and conspiracy stat-

utes. Gov’t Br. at 10-11, Morin, supra (Nos. 95-5242 &

95-5300) (Morin Br.). In addition, the government

defended the district court’s determination that the

planned murder would have violated 18 U.S.C. 2332(a),

which makes it a federal offense to murder a national of

the United States who is outside the United States.

The government argued that, as used in Section 2332(a)

of the Criminal Code, the term ‘national’ should be

understood to include an individual, such as the in-

tended target of Morin’s murder plot, who is a lawful

permanent resident alien. Morin Br. at 12. In a foot-

note, the government stated that its interpretation of

Section 2332(a) “comports with the general definition of

‘national’ contained in [Section 1101(a)(22)],” which is

incorporated into Section 2332(a) through 18 U.S.C.

2331(2). Morin Br. at 12 n.8. To support that last point,

the government stated, incorrectly, that “given [the

intended victim’s] pending application for citizenship, it

can fairly be said that he owed allegiance to the Untied

(sic) States.” Ibid.

The Fourth Circuit agreed with the government that

the planned killing in Morin would have violated both

Virginia law and 18 U.S.C. 2332(a). 80 F.3d at 126-127.

In discussing Section 2332(a), the court stated that

Morin’s intended victim was a national of the United

States because he was a permanent resident alien with

a pending application for naturalized citizenship. The

12

Fourth Circuit reasoned, without any citation, that “an

application for citizenship is the most compelling evi-

dence of permanent allegiance to the United States

short of citizenship itself.” Id. at 126.

The Fourth Circuit’s consideration of Section

1101(a)(22) was unnecessary to the holding in Morin

because the planned murders also would have violated

Virginia law. Moreover, although consistent with the

government’s alternative argument in that case, the

Fourth Circuit’s approach is incorrect for the reasons

discussed in Point 1, above. In a decision that is desig-

nated for publication, the Third Circuit, expressly

agreeing with the Ninth Circuit in this case, rejected

the reasoning of Morin as “wholly unpersuasive” and

concluded that “simply filing an application for natu-

ralization does not prove that one ‘owes a permanent

allegiance to the United States.’” Salim v. Ashcroft,

No. 02-2244, 2003 WL 22751083, at *2 (8d Cir. July 15,

2003) (per curiam). Furthermore, representatives of

the United States Attorneys in every circuit, as well as

appropriate attorneys within the Criminal Division of

the Department of Justice, are being advised of the

position stated in this brief concerning Morin’s incor-

rect application of Section 1101(a)(22)(B). Accordingly,

no criminal prosecutions should be brought based on

the interpretation of “national” stated in Morin.

In light of all those considerations, the Fourth Cir-

cuit’s decision in Morin is unlikely to have future sig-

nificance, and—given the powerful statutory argu-

ments, not considered in Morin, why someone in peti-

tioner’s position does not qualify as a national—can be

expected to be reconsidered by the Fourth Circuit in a

removal case under the immigration laws. Morin thus

13

does not establish a circuit conflict that warrants

review by this Court.”

3. Finally, petitioner suggests (Pet. 16) that the

Ninth Circuit’s decision in this case might allow immi-

gration officials to “defeat Congressional intent to insu-

late from removal citizens and nationals by sitting on

legitimate applications” for naturalized citizenship. Pe-

titioner’s argument seems to be that Congress wanted

to protect from removal those criminal and other aliens

who are removable but who have applied for natural-

ized citizenship. Section 1429 disproves that argument.

See pp. 6-7, 9, supra. Nor is there any indication of

improper agency delay in this case. In briefing his case

before the BIA, petitioner acknowledged that the

processing of his citizenship application may have been

delayed or prevented “due to the fact that [petitioner]

moved with his family” while the application was

pending “and failed to notify the INS of his change of

address.” A.R. 9-10. After petitioner’s drug conviction

in 1999, moreover, the INS had clear grounds for de-

clining to grant petitioner citizenship and, instead, com-

mencing the removal proceedings that are at issue in

this case.‘

3 The district court decisions on which petitioner relies (Pet. 16-

17) do not add meaningfully to the split of authority in the lower

courts. None contains substantial analysis of Section 1101(a)(22),

and some held that the alien was not a national of the United

States. There was no issue of United States nationality at all in

Johnson v. Eisentrager, 339 U.S. 763 (1950), on which petitioner

also relies. See Pet. 13 n.5.

4 Although the court of appeals considered the merits of peti-

tioner’s claim to be a national of the United States, the BIA deter-

mined (Pet. App. 16-17) that petitioner could not prevail on that

argument because, among other reasons, he failed to (1) present it

to the immigration judge in his removal proceeding and (2) provide

14

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

FRANCIS W. FRASER

Attorneys

DECEMBER 2003

the BIA with record evidence establishing that he applied for natu-

ralization. /d. at 17. Although the court of appeals, on February

28, 2003, granted petitioner’s motion to take judicial notice of his

July 1997 naturalization application, those additional grounds for

the BIA’s order of removal nevertheless weigh against this Court’s

review of the nationality issue framed in the petition.