Mohammed Salim v. John Ashcroft, Attorney General of the United States

PRECEDENTIAL
Filed July 15, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2244
MOHAMMED SALIM,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A38-971-012
on April 5, 2002
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2003
Before: NYGAARD, STAPLETON and COWEN,
Circuit Judges
(Filed: July 15, 2003)
Mohammed Salim #45930-054
Elkton FCI
P.O. Box 10
Lisbon, OH 44432
Petitioner Pro Se

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Susan K. Houser, Esq.
Carl H. McIntyre, Jr., Esq.
Richard M. Evans, Esq.
Christopher C. Fuller, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
Counsel for Respondent
OPINION OF THE COURT
PER CURIAM:
The Board of Immigration Appeals dismissed Petitioner
Mohammed Salim’s appeal from an Immigration Judge’s
decision that found him removable and ineligible for relief
from removal. Salim filed a timely petition for review. The
Government has filed a motion to dismiss, arguing that this
Court lacks jurisdiction over the petition for review because
Salim is a criminal alien. A panel of this Court referred the
motion to dismiss to this merits panel. We will grant the
motion to dismiss.1
I.
We lack jurisdiction to review a final order of removal
against an alien who is removable because he has
committed an aggravated felony. Liang v. INS, 206 F.3d
308, 321-22 (3d Cir. 2000). Nevertheless, we have
jurisdiction to determine jurisdictional facts; that is to say,
we are empowered to decide whether Salim is an alien, and
whether he committed an aggravated felony. Drakes v.
Zimski, 240 F.3d 246, 247 (3d Cir. 2001). Salim does not
contest the fact that he committed an aggravated felony.
1. On July 15, 2003, this merits panel filed a not-precedential per
curiam opinion dismissing the petition. Upon motion to the Court, the
panel entered an order vacating the not-precedential per curiam opinion
and granted the motion to enter this published opinion.
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Instead, he argues that he is not an “alien” because he is
a “national” of the United States. Pursuant to 8 U.S.C.
§ 1252(b)(5), in conjunction with a petition for review, we
may determine nationality claims if no genuine issue of
material fact about the petitioner’s nationality is presented.
Here, the Government does not contest any of the factual
bases for Salim’s claim, but argues that Salim is not a
national as a matter of law. Thus, we can properly consider
Salim’s claim.
II.
Mohammed Salim is a citizen of Bangladesh who was
admitted to the United States as an immigrant in 1986. In
June of 1996, he filed an application for naturalization,
which was denied in September of that same year. The
denial cites 8 C.F.R. § 316.10(c)(1), which indicates that
“[a]n application [for naturalization] will not be approved
until after the probation, parole, or suspended sentence has
been completed.” The decision states that Salim’s record
showed “a 3 year period of conditional discharge to expire
on 10-20-99.” Admin. Record at 68. His application also
shows that he registered under the Selective Service laws
on July 3, 1996.
On January 22, 2001, Salim pleaded guilty to conspiracy
to commit bank fraud, and ten counts of bank fraud in
violation of 18 U.S.C. § § 371 and 1344. He was sentenced
to a term of imprisonment of seventy months, to be followed
by five years of supervised release. On March 16, 2001, the
INS served Salim with a notice to appear, charging him
with removability due to his aggravated felony offenses. An
Immigration Judge found him removable as charged, and
Salim appealed to the Board of Immigration Appeals. Salim
argued that he was not removable because he is a
“national” of the United States, because he had filed a
naturalization application and had registered with the
Selective Service. The BIA rejected his arguments and
dismissed the appeal.
The Immigration and Nationality Act defines a “national”
as “(A) a citizen of the United States, or (B) a person who,
though not a citizen of the United States, owes permanent
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allegiance to the United States.” 8 U.S.C. § 1101(a)(22).
Salim argues that he is a national under subparagraph (B)
of this section. His argument relies primarily on three
cases. In Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir.
2001), the petitioner was born in Poland in 1956, but was
adopted by two U.S. citizens in 1960 and brought to the
United States as an immigrant. He was never naturalized.
The petitioner argued that due to his long residency, his
lack of allegiance to Poland, and his allegiance to the
United States, he was a U.S. national. The Court rejected
his argument, concluding that long-term residency was not
sufficient, and stating that for a person born outside of the
U.S. to establish that he is a national he must “at a
minimum, demonstrate (1) birth in a United States territory
or (2) an application for United States citizenship.” Id. at
757. Because the petitioner did not meet either of those
requirements, the Court declined to consider “what
additional facts (if any) he would have to show.” Id.
However, in Perdomo-Padilla v. Ashcroft, the Ninth Circuit
Court of Appeals rejected the mere application for
citizenship as a way to establish that one is a national and
further refined its test by holding that “one may become a
‘national of the United States’ only through birth or by
completing the process of becoming a naturalized citizen.”
333 F.3d 964, 969 (9th Cir. 2003) (emphasis added). The
Court explained that in Hughes it had “expressly declined
to decide whether an application for naturalization,
standing alone, is sufficient to confer nationality on an
alien.” Id. at 971. The Court held, based on (1) the
traditional meaning of “national” (i.e., those born in U.S.
territories), (2) the statutory definition and context, and (3)
the regulatory context, that birth and naturalization are the
only routes to becoming a national. Id. at 967-71.2
2. The BIA has come to a similar decision in In re Navas-Acosta, 23 I. &
N. Dec. 586, 586-87 (2003). The Ninth Circuit determined that the BIA’s
interpretation of the statute was not entitled to deference pursuant to
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843
(1984), finding that Congress did not grant discretion to the BIA to
decide questions of law related to nationality. Perdomo-Padilla, 333 F.3d
at 966-67. We need not determine whether Chevron deference is due, as
we come to the same conclusion even using a less deferential standard
of review.
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The Court in Perdomo-Padilla also distinguished and
disapproved of the holdings of the two other cases on which
Salim relies: United States v. Morin, 80 F.3d 124, 126-27
(4th Cir. 1996); and a District Court case, Lee v. Ashcroft,
216 F.Supp.2d 51 (E.D. N.Y. 2002). In Morin, a criminal
defendant argued that he could not be convicted of murder-
for-hire, because his intended victim was not a national of
the United States, but was a Mexican citizen. The Court
held that the intended victim, who was a permanent
resident alien of the United States who had applied for
naturalization, was indeed a “national,” and stated that,
“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. However, as the
Ninth Circuit noted, the Morin court provided no reasoning
for its conclusion that the victim was a national, aside from
the quote above. Like the Ninth Circuit, we find this case
wholly unpersuasive.
We are similarly unpersuaded by Lee. In Lee, the
petitioner had been a permanent resident for nearly thirty
years, was married to a U.S. citizen, had two citizen
children and two naturalized citizen parents, and had
applied for naturalization and registered for the Selective
Service. Lee, 216 F. Supp. 2d at 58-59. The Court found
that the petitioner was a “national,” but relied on the
petitioner’s subjective allegiance to the United States, and
did not engage in a complete analysis of what it means to
be a “national” of the United States.
Although we have not had the occasion to decide what a
petitioner must show to prove he “owes permanent
allegiance to the United States,” we now join the Court of
Appeals for the Ninth Circuit in holding that simply filing
an application for naturalization does not prove that one
“owes a permanent allegiance to the United States.” We
conclude that for one such as Salim who is a citizen of
another country, nothing less than citizenship will show
“permanent allegiance to the United States.”
Salim cannot complete his application process and
become a citizen because he is permanently ineligible for
citizenship as a result of his 2001 conviction of an
aggravated felony. See 8 U.S.C. § 1427(a)(3) (applicant for
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naturalization must be person of good moral character); 8
U.S.C. § 1101(f)(7), (8) (person who has served 180 days or
more of imprisonment or has been convicted of aggravated
felony cannot be found to be of good moral character).
Thus, we hold that Salim is not a “national.” Although he
may subjectively declare an allegiance to the United States,
that is not sufficient. This country has not conferred any
status on him that would cause him to “owe” his allegiance
to the United States. We will dismiss for lack of jurisdiction.
See Patel v. Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002).
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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