Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Damion Bryan v. USCIS, No. 12-3006 and 12-2975 (3rd cir. Dec. 3 ,2012)

454 views

Published on

Published in: News & Politics
  • Be the first to comment

  • Be the first to like this

Damion Bryan v. USCIS, No. 12-3006 and 12-2975 (3rd cir. Dec. 3 ,2012)

  1. 1. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 12-3006 ____________ DAMION BRYAN, Petitioner v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Respondent __________________________________ On a Petition For Review of a Decision of the United States Citizenship & Immigration Services (Agency No. A046-241-195) __________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 3, 2012 Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges (Opinion filed: December 4, 2012) ____________ OPINION ____________PER CURIAM Damion Bryan (“Bryan”) petitions for review of the June 29, 2011 decision of theUnited States Citizenship and Immigration Services (“USCIS”), denying his Form N-600, 1
  2. 2. Application for Certificate of Citizenship. For the reasons that follow, we will dismissthe petition for review for lack of jurisdiction. Bryan, a native and citizen of Jamaica, was ordered removed by an ImmigrationJudge and the Board of Immigration Appeals affirmed his removal order on March 28,2003. Bryan was removed from the United States but he re-entered. He was chargedwith and pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2), andwas sentenced on January 19, 2010 in the United States District Court for the SouthernDistrict of New York to a term of imprisonment of 46 months, see D.C. Crim. No. 05-cr-00357. Upon his release, Bryan was taken into immigration custody in Clinton County,Pennsylvania. On or about February 25, 2011, Bryan filed a Form N-600, Application forCertificate of Citizenship, with the United States Citizenship and Immigration Services(“USCIS”). On June 29, 2011, USCIS issued a decision denying the application. TheUSCIS officer made a number of findings and concluded that Bryan did not meet therequirements for derivative citizenship through his stepfather’s naturalization because hisstepfather had not adopted him prior to his [Bryan’s] reaching majority. This decision byDistrict Director Andrea J. Quarantillo indicated that Bryan could appeal to theAdministrative Appeals Office in Washington, D.C. within 30 days. On February 28, 2012, Bryan filed a petition for writ of habeas corpus, 28 U.S.C.§ 2241, in the United States District Court for the Middle District of Pennsylvania,seeking review of the June 29, 2011 USCIS decision denying his application fornaturalization. Following the filing of a response by the Government, and a Report and 2
  3. 3. Recommendation by the Magistrate Judge, the District Court, in an order entered on June11, 2012, dismissed the petition without prejudice because district courts may notexercise habeas corpus jurisdiction over a claim of citizenship. The District Court heldthat jurisdiction over nationality claims would lie only with a court of appeals, see Jordonv. Att’y Gen. of U.S., 424 F.3d 320, 326-27 (3d Cir. 2005) (REAL ID Act gave appellatereview of derivative citizenship claims to court of appeals and eliminated habeasjurisdiction in the district courts). Evidently in response, on July 18, 2012, Bryan filed anitem in this Court titled “Pro Se Petitioner’s Petition for Writ of Habeas Corpus Pursuantto 28 U.S.C. § 2241 & REAL ID Act U.S.C. § 1251 (Petition for Review),” in which hesought review in this Court of the June 29, 2011 USCIS decision denying his applicationfor naturalization. We will treat this as a petition for review. 8 U.S.C. § 1252(a)(5).1 An alien must exhaust all administrative remedies as a prerequisite to raising aclaim before this Court. See 8 U.S.C. § 1252(d)(1); Alleyne v. Immigration &Naturalization Serv., 879 F.2d 1177, 1182 (3d Cir. 1989). See also Joseph v. Att’y Gen.of the U.S., 465 F.3d 123, 126 (3d Cir. 2006). Failure to appeal at all available levelsconstitutes a failure to exhaust, thus depriving us of jurisdiction, see id. at 1252(d)(1) (alladministrative remedies available “as of right” must be exhausted). A person may seekproof of citizenship by filing with USCIS a Form N-600, Application for Citizenship,pursuant to Immigration & Nationality Act (“INA”) §§ 301, 309, 320, and/or 321. If the1 After we denied his motion for a stay of removal, Bryan was removed to Jamaica onJuly 26, 2012. 3
  4. 4. application is denied, he must timely appeal to the Administrative Appeals Office, see 8C.F.R. § 103.3(a)(1)(i)-(iv). See also 8 C.F.R. § 341.6 (effective to November 27, 2011). There is no final administrative denial where the person failed to appeal therejection of his Form N–600 Application for Certificate of Citizenship to theAdministrative Appeals Unit. See Johnson v. Whitehead, 647 F.3d 120, 125 (4th Cir.2011) cert. denied, 132 S. Ct. 1005 (U.S. 2012). Cf. 8 U.S.C. § 1503(a) (requiring “finaladministrative denial” before those whose nationality claims do not arise in context ofremoval proceedings may proceed with declaratory judgment action). We note thatBryan was advised of his appellate rights. Bryan has argued in his petition for reviewthat he need not exhaust his administrative remedies as required by 8 U.S.C. § 1252(d)(1)because his “constitutional rights were violated,” (Petition, at 3), but Bryan’s citizenshipclaim, which involved fact-finding and the application of INA §§ 301, 309, 320 and 321to the facts of his case, is correctable through the administrative process, and thus fullysubject to the exhaustion requirement. See Bonhometre v. Gonzales, 414 F.3d 442, 448(3d Cir. 2005). For the foregoing reasons, we will dismiss the petition for review for lack ofjurisdiction. The Government’s motion to dismiss for mootness is denied. 4
  5. 5. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 12-2975 ____________ DAMION BRYAN, Appellant v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES __________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 12-cv-00372) District Judge: Honorable William W. Caldwell __________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) December 3, 2012 Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges (Opinion filed: December 4, 2012) ____________ OPINION ____________PER CURIAM Damion Bryan appeals from an order of the District Court denying his habeascorpus petition without prejudice. For the reasons that follow, we will affirm. 1
  6. 6. Bryan, a native and citizen of Jamaica, was ordered removed by an ImmigrationJudge and the Board of Immigration Appeals affirmed his removal order on March 28,2003. Bryan was removed from the United States but he re-entered. He was chargedwith and pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2), andwas sentenced on January 19, 2010 in the United States District Court for the SouthernDistrict of New York to a term of imprisonment of 46 months, see D.C. Crim. No. 05-cr-00357. Upon his release, Bryan was taken into immigration custody in Clinton County,Pennsylvania. On or about February 25, 2011, Bryan filed a Form N-600, Application forCertificate of Citizenship, with the United States Citizenship and Immigration Services(“USCIS”). On June 29, 2011, USCIS issued a decision denying the application. TheUSCIS officer made a number of findings and concluded that Bryan did not meet thestatutory requirements for derivative citizenship through his stepfather’s naturalizationbecause his stepfather had not adopted him prior to his [Bryan’s] reaching majority. Thisdecision by District Director Andrea J. Quarantillo indicated that Bryan could appeal tothe Administrative Appeals Office in Washington, D.C. within 30 days. On February 28, 2012, Bryan filed a petition for writ of habeas corpus, 28 U.S.C.§ 2241, in the United States District Court for the Middle District of Pennsylvania,seeking review of the June 29, 2011 USCIS decision denying his application fornaturalization. Following the filing of a response by the Government, and a Report andRecommendation by the Magistrate Judge, the District Court, in an order entered on June11, 2012, dismissed the petition without prejudice because district courts may not 2
  7. 7. exercise habeas corpus jurisdiction over a claim of citizenship. The District Court heldthat jurisdiction over nationality claims would lie only with a court of appeals, see Jordonv. Att’y Gen. of U.S., 424 F.3d 320, 326-27 (3d Cir. 2005) (REAL ID Act gave appellatereview of derivative citizenship claims to court of appeals and eliminated habeasjurisdiction in the district courts). Bryan timely appealed, and filed a motion for stay of removal, which we denied.Bryan then was removed to Jamaica on July 26, 2012. We have jurisdiction under 28U.S.C. § 1291. See Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001) (if plaintiffcannot cure defects or declares his intention to stand on motion, order dismissing withoutprejudice is appealable). The parties have submitted briefs, and the Government, inaddition to submitting a brief, has filed a motion to dismiss the appeal for mootness.Bryan argues in his brief that the District Court should have transferred his habeas corpuspetition to this Court instead of denying it without prejudice. We review de novo thedismissal of a habeas corpus petition on jurisdictional grounds. See, e.g., Cardona v.Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). We will affirm the order of the District Court denying the habeas corpus petitionwithout prejudice. Bryan’s habeas corpus petition was filed after the May, 2005enactment of the REAL ID Act, and thus the District Court did not have jurisdiction overthe petition. In the REAL ID Act, Congress made a petition for review with theappropriate circuit court of appeals the sole and exclusive means of judicial review fornationality claims. Jordan, 424 F.3d at 326-27 (citing 8 U.S.C. § 1252(a)(5)). The REALID Act included a transitional rule that allowed district courts to transfer habeas corpus 3
  8. 8. petitions pending in the district courts at the time of the Act’s enactment, see REAL IDAct., § 106(a), (c), Pub.L. No. 109-13, Div. B Title I (permitting transfer of petitionswhich were pending in district courts on May 11, 2005), but Bryan’s habeas corpuspetition was filed after the enactment date of the REAL ID Act, and thus the DistrictCourt properly dismissed it without prejudice to Bryan’s ability to file a similar petitiondirectly in this Court.1 For the foregoing reasons, we will affirm the order of the District Court denyingBryan’s habeas corpus petition without prejudice. The Government’s motion to dismissfor mootness is denied.1 Bryan did just that in an appeal docketed at C.A. No. 12-3006. 4

×