United States v. 2008-03-10 | 04-74290 | MUSTANISH V. MUKASEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JESS MUSTANICH,
Petitioner, No. 04-74290
v. Agency No.
 A36-542-395MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 9, 2008—Pasadena, California
Filed March 11, 2008
Before: Jerome Farris and Milan D. Smith, Jr.,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
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COUNSEL
Robin C. Carr, Law Offices of Robin Carr, San Diego, Cali-
fornia, for the petitioner.
Carl H. McIntyre, Jr., and Patrick J. Glen, Office of Immigra-
tion Litigation, Civil Division, U.S. Department of Justice,
Washington, DC, for the respondent.
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OPINION
MILAN D. SMITH, JR., Circuit Judge:
In this appeal, we consider Petitioner Jess Mustanich’s
(Mustanich) petition for review of a final order of removal by
the Board of Immigration Appeals (BIA). Mustanich was con-
victed of burglary and subsequently ordered removed under 8
U.S.C. § 1227(a)(2)(A)(iii) as an alien who committed an
aggravated felony. He seeks to terminate his removal pro-
ceedings on the ground that he is a United States citizen, argu-
ing that although he did not file an application for
naturalization prior to the applicable statutory deadline, the
United States is equitably estopped from denying his citizen-
ship because the Government’s own affirmative misconduct
precluded a timely filing. We reject this argument and deny
the petition on the authority of INS v. Pangilinan, 486 U.S.
875 (1988), which established that citizenship cannot be con-
ferred by estoppel where the statutory requirements for natu-
ralization have not been satisfied.
Mustanich also moves to transfer his case to the district
court for an evidentiary hearing regarding his possible United
States citizenship. We deny the motion because there is no
genuine issue of material fact concerning nationality. See 8
U.S.C. § 1252(b)(5)(A).
I. BACKGROUND
Mustanich was born in El Salvador on August 15, 1978 and
adopted shortly thereafter by two United States citizens. In
February 1979, he became a lawful permanent resident of the
United States. Because Mustanich was born outside the coun-
try, he was required to satisfy the requirements of 8 U.S.C.
§ 1433 before becoming a naturalized citizen.1 One require-
1The Child Citizenship Act of 2000 (CCA) established that a naturaliza-
tion application need not be filed in accordance with § 1433 if a child born
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ment of that statute was that he apply for naturalization prior
to his eighteenth birthday. 8 U.S.C. § 1433(a)(3).
Mustanich’s father, James Mustanich (James), made sev-
eral unsuccessful attempts to submit a timely application for
naturalization on his son’s behalf. These attempts began in
1988, when he tried to file a completed application at an INS
field office in San Jose, California. An INS employee refused
to accept the application because it was beyond her expertise,
and told James to contact INS by telephone for assistance.
James telephoned the agency a few days later. The person
who answered took his contact information and explained that
another INS employee would call him about the matter in the
near future, but a call never came. James telephoned again
approximately one month later asking for instructions on how
to file the application, but the response was the same: INS
took James’s contact information and stated that it would call
him back, but never did. Two or three months later, James
called again and received the same treatment. Neither James
nor Mustanich was represented by an immigration lawyer dur-
ing this process.
In approximately 1990, Mustanich became a ward of the
Superior Court of California, Juvenile Division, due to
unspecified criminal conduct. Between 1991 and 1994, James
made five separate requests for the court to look into the issue
of Mustanich’s citizenship because the naturalization applica-
tion still had not been filed. The court ordered Mustanich’s
social worker to provide assistance, but the social worker
apparently took no action. James also raised the citizenship
issue with Mustanich’s probation officer sometime between
outside the United States satisfies certain requirements for automatic citi-
zenship under 8 U.S.C. § 1431. See Pub. L. No. 106-395, § 102, 114 Stat.
1631, 1632 (2000). However, Mustanich was not eligible for automatic
citizenship under § 1431 because he was over the age of 18 on February
27, 2001, the effective date of the CCA. Hughes v. Ashcroft, 255 F.3d 752,
758-59 (9th Cir. 2001).
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1994 and 1996, but the probation officer did not furnish any
helpful information. Mustanich’s eighteenth birthday passed
on August 15, 1996 without the application having been filed.
Mustanich was convicted of first-degree burglary in April
1997 and sentenced to four years in prison. While incarcer-
ated, he was convicted of possessing a sharp instrument and
sentenced to an additional four years. In approximately May
1997, James received a telephone call from an INS officer
who had been assigned to Mustanich’s case. James again
requested guidance on how to obtain citizenship for his son,
but the officer provided no helpful advice.
In July 2003, INS charged Mustanich with removability as
an aggravated felon because of his burglary conviction.
Mustanich sought to terminate the proceedings on the ground
that the United States’s repeated failure to provide instruc-
tions on how to file the naturalization application amounted
to affirmative misconduct that estopped the Government from
denying him citizenship. Mustanich also applied for asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture (CAT) on the theory that he
would be persecuted and tortured in El Salvador because of
his status as an American.
The Immigration Judge (IJ) rejected Mustanich’s argu-
ments. The IJ concluded that the failure to comply with 8
U.S.C. § 1433(a)(3) was not remediable by equitable estoppel
because the United States had not engaged in affirmative mis-
conduct. Mustanich was found ineligible for asylum and with-
holding of removal because he had been convicted of a
particularly serious crime, and his CAT application was
denied for insufficient evidence. The IJ accordingly ordered
Mustanich removed to El Salvador on February 10, 2004. The
BIA summarily affirmed, and Mustanich timely petitioned for
this court’s review.
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II. JURISDICTION
We lack jurisdiction “to review any final order of removal
against an alien who is removable by reason of having com-
mitted a criminal offense covered in [8 U.S.C. §]
1227(a)(2)(A)(iii).”2 8 U.S.C. § 1252(a)(2)(C). However, we
retain jurisdiction to review questions of law, including
whether the jurisdictional bar at § 1252(a)(2)(C) applies. Id.
at § 1252(a)(2)(D); De Jesus Melendez v. Gonzales, 503 F.3d
1019, 1023 (9th Cir. 2007). So long as there is no genuine
issue of material fact concerning nationality, this jurisdiction
permits us to determine whether an individual ordered
removed is an alien as a matter of law. See 8 U.S.C.
§ 1252(b)(5)(A); Hughes, 255 F.3d at 755.
III. DISCUSSION
A. The Estoppel Claim
Mustanich seeks to terminate removal proceedings on the
ground that he is a United States citizen.3 He argues that
although he did not timely file an application for naturaliza-
tion in accordance with 8 U.S.C. § 1433(a)(3), the United
States is equitably estopped from denying his citizenship
because the Government’s conduct precluded a timely filing.
Although we sincerely lament that Mustanich and his family
were not better served by the representatives of the United
States from whom they repeatedly sought assistance, we are
2The parties do not dispute that the offense for which Mustanich was
convicted is covered by § 1227(a)(2)(A)(iii).
3We do not address the denial of Mustanich’s applications for asylum,
withholding of removal, and relief under CAT because he has not raised
those issues on appeal. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.
1994) (“We review only issues which are argued specifically and dis-
tinctly in a party’s opening brief.”).
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bound by the law as declared by the Supreme Court, and must
reject his argument.4
[1] The Constitution confers upon Congress exclusive
authority to establish rules of naturalization. U.S. Const. art.
I, § 8, cl. 4; INS v. Pangilinan, 486 U.S. 875, 882 (1988). The
corollary to this allocation of authority is that “the power to
make someone a citizen of the United States has not been
conferred upon the federal courts, like mandamus or injunc-
tion, as one of their generally applicable equitable powers.”
Id. at 883-84. “Rather, it has been given them as a specific
function to be performed in strict compliance with the terms”
set forth by Congress. Id. at 884. “Neither by application of
the doctrine of estoppel, nor by invocation of equitable pow-
ers, nor by any other means does a court have the power to
confer citizenship in violation of these limitations.” Id. at 885.
[2] Bound by Pangilinan, we hold that the Government is
not estopped from denying Mustanich citizenship. Congress
plainly requires that an individual born abroad apply for natu-
ralization prior to his or her eighteenth birthday. 8 U.S.C.
§ 1433(a)(3). That requirement cannot be ignored. See 8
U.S.C. § 1421(d) (“A person may only be naturalized as a cit-
izen of the United States in the manner and under the condi-
tions prescribed in this subchapter and not otherwise.”).
Mustanich concedes that he did not file his application on
time. Estoppel in these circumstances would amount to pre-
cisely the type of equity-based departure from the require-
ments of the immigration statutes that Pangilinan prohibits.
See 486 U.S. at 885.
This conclusion draws support from Ortega v. United
States, 861 F.2d 600 (9th Cir. 1988), which involved an alien
who attempted to apply for naturalization in accordance with
a certain statutory deadline but never actually filed the appli-
4We review this matter de novo. Molina-Estrada v. INS, 293 F.3d 1089,
1093 (9th Cir. 2002).
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cation. The alien visited a United States embassy to complete
the paperwork before the deadline, but was turned away and
told to await instructions from embassy officials. Id. at 601.
No one contacted him thereafter, and the embassy did not
advise him on the proper procedures for completing his appli-
cation. Id. The district court granted the alien’s petition for
naturalization on the theory that he “constructively” filed the
application in time by attempting to do so at the embassy, but
we reversed on the basis of Pangilinan, explaining that the
“district court had no authority to overlook the expiration date
of the [applicable statute] and grant [the alien’s] naturalization
petition pursuant to its powers of equity.” Id. at 603. Other
cases have followed this approach. See Carrillo-Gonzalez v.
INS, 353 F.3d 1077, 1079-80 (9th Cir. 2003) (applying
Pangilinan to preclude an equity-based departure from
another immigration statute); Agcaoili v. Gustafson, 870 F.2d
462, 463-64 (9th Cir. 1989) (same).
The finding that Mustanich cannot obtain citizenship by
estoppel is also consistent with Wauchope v. United States
Department of State, 985 F.2d 1407 (9th Cir. 1993), which
involved an equal protection challenge to a law that conferred
citizenship on the foreign-born children of United States citi-
zen males, but not females. The district court held the law
unconstitutional and used its equitable powers to award citi-
zenship as a remedy. Id. at 1410. We found the remedy to be
consistent with Pangilinan because Pangilinan only “pre-
cludes the judiciary from exercising its statutory powers of
naturalization to redress statutory violations except in strict
conformity with Congress’ authorizing legislation,” not from
utilizing “traditional constitutional remedies to rectify consti-
tutional violations.” Id. at 1418 (emphasis in original). Unlike
the plaintiff in Wauchope, Mustanich does not assert estoppel
on the theory that the denial of his citizenship is unconstitu-
tional. Pangilinan, therefore, still governs.
Mustanich argues that Pangilinan does not apply because
he is not requesting the use of estoppel to confer citizenship,
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but rather to preclude the United States from denying his
application for citizenship. We see no meaningful difference.
With the exception of the requirement of a timely application,
Mustanich satisfied all of the requirements for naturalization
under 8 U.S.C. § 1433. Estopping the Attorney General from
denying Mustanich’s application would resolve the remaining
hurdle in his favor and compel the issuance of a certificate of
citizenship. See 8 U.S.C. § 1433(a) (“The Attorney General
shall issue a certificate of citizenship . . . upon proof, to the
satisfaction of the Attorney General, that the following condi-
tions have been fulfilled . . . .”) (emphasis added). The rule
in Pangilinan cannot be avoided where the immediate and
necessary consequence of the requested equitable relief is the
conferral of citizenship. See Miller v. Albright, 523 U.S. 420,
455 (1998) (Scalia, J., concurring) (citing Pangilinan for the
proposition that the Court is unable to declare citizenship or
“order[ ] the State Department to approve . . . application[s]
for citizenship”).
We also reject the suggestion that the Government’s
repeated failure to assist Mustanich allows us to bypass the
holding of Pangilinan. In Pangilinan, several Filipino veter-
ans of World War II sought United States citizenship under an
expired statute that had made it easier for INS to grant peti-
tions for naturalization to aliens who served honorably in the
United States Armed Forces during the War. 486 U.S. at 877.
The veterans argued that their failure to seek citizenship in a
timely manner should be excused because the Attorney Gen-
eral unlawfully revoked the authority of INS to grant petitions
in the Philippines for a ten-month period shortly before the
expiration of the statute, thereby depriving qualifying individ-
uals of the opportunity to obtain citizenship. See id. at 885.
We had found this argument persuasive, holding that the
Attorney General’s action violated the statute and granting
naturalization as an equitable remedy. Pangilinan v. INS, 796
F.2d 1091 (9th Cir. 1986). The Supreme Court reversed, but
only because courts cannot employ equitable remedies to con-
fer citizenship where the statutory requirements for citizen-
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ship are unsatisfied, not because “there was no governmental
wrong to be remedied.” In re Thornburgh, 869 F.2d 1503,
1514 (D.C. Cir. 1989). As Thornburgh explained, “the
Supreme Court either assumed the Ninth Circuit was right
about the existence of a law violation or considered the matter
irrelevant to its holding.” Id. at 1514 n.15. Either way, the
alleged wrongfulness of the Government’s conduct does not
create an exception to the rule.
Mustanich cites a number of cases in which estoppel was
ordered in the context of immigration proceedings. These
cases do not undermine Pangilinan. Many of them utilized
estoppel to confer a status other than that of citizen and, there-
fore, did not interfere with Congress’s exclusive constitutional
authority to establish rules for naturalization. See Villena v.
INS, 622 F.2d 1352, 1361 (9th Cir. 1980) (estoppel in support
of a claim for a visa-preference classification); Yoo v. INS,
534 F.2d 1325, 1328-29 (9th Cir. 1976) (estoppel in support
of a claim for permanent-resident status); Gestuvo v. Dist.
Dir. of U.S. INS, 337 F. Supp. 1093, 1101-02 (C.D. Cal.
1971) (visa-preference classification). The remaining cases
that utilized estoppel to grant citizenship predate Pangilinan
and are district court decisions that are not binding on this
court. See In re Naturalization of Clarino, 691 F. Supp. 193,
197 (C.D. Cal. 1988); In re Petition of Tubig in Behalf of
Tubig, 559 F. Supp. 2, 4 (N.D. Cal. 1981); In re Naturaliza-
tion of 68 Filipino War Veterans, 406 F. Supp. 931, 939 (N.D.
Cal. 1975).
[3] We therefore hold that Mustanich’s removal proceed-
ings cannot be terminated on the ground that he is a citizen.
Estoppel cannot confer citizenship because not all the require-
ments of 8 U.S.C. § 1433(a)(3) have been satisfied. Because
estoppel is unavailable, we do not reach the question of
whether the traditional requirements for that remedy have
been met. See, e.g., Mukherjee v. INS, 793 F.2d 1006, 1008-
09 (9th Cir. 1986).
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B. The Motion to Transfer
[4] Mustanich also moves to transfer his case to the district
court for an evidentiary hearing regarding his possible United
States citizenship. We deny the motion. Transfer is required
only if there is a “genuine issue of material fact” concerning
nationality. 8 U.S.C. § 1252(b)(5)(B). Mustanich does not
identify any material facts that are genuinely disputed. He
cites to the adjudication of a prior petition for habeas corpus,
in which the district court stated that Mustanich had “at least
a ‘substantial’ ” non-frivolous claim to United States citizen-
ship because he was “adopted by American citizens at age
six-months and moved to the United States.” Mustanich v.
Gonzales, 2007 WL 2819732, at *9, 2007 U.S. Dist. LEXIS
71401, at *27 (S.D. Cal. Sept. 26, 2007). However, the facts
pertaining to his adoption and subsequent immigration are not
disputed. Nor is there a genuine dispute concerning the mate-
rial facts on which the estoppel argument hinges. There is no
dispute, for example, about whether Mustanich’s father
attempted to contact INS multiple times, nor about how INS
responded. The only disputes are whether equitable estoppel
can confer citizenship and, assuming it can, whether estoppel
is warranted in light of the undisputed facts. These are both
questions of law now resolved by this court, and for which
transfer to a district court is unnecessary.
The petition for review and the motion to transfer are
DENIED.
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