The opinion of the court was delivered by: Schiller, Judge.
This petition for a writ of habeas corpus raises the unsettled legal
question of whether a permanent U.S. resident who was ordered deported
while his application for naturalization was pending can claim the
protection of the status of "national of the United States" under §
101(a)(22) of the Immigration and Naturalization Act.
Petitioner Rasaq Oladimeji Shittu ("Shittu"), a citizen of Nigeria and
until May 6, 2002 a permanent resident of the United States, petitioned
for a writ of habeas corpus on February 8, 2002, claiming that he could
not be deported as an aggravated felon alien while his application for
naturalization was pending. Also before this Court is Shittu's Motion for
Injunctive Relief and Temporary Restraining Order/Stay of Deportation.
For the reasons that follow, I will deny the petition for a writ of
habeas corpus and deny Shittu's motion as moot.
Shittu was legally admitted to the United States in 1990 as a permanent
resident. On August 13, 1997, he applied for naturalization. While his
application was still pending, he was convicted in the U.S. District Court
for the Central District of Illinois of possession with intent to
distribute heroin and sentenced to 37 months in prison. Because this
crime is an aggravated felony under 8 U.S.C. § 1101(a)(43), the
Government brought a removal proceeding pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii). On February 27, 2001, the Immigration
Judge ordered Shittu's removal to Nigeria, and the Board of Immigration
subsequently affirmed the order. On February 8, 2002, Shittu
petitioned this Court for a writ of habeas corpus, alleging that his
pending application for citizenship makes him a "national of the United
States," that the Immigration and Naturalization Service ("INS") violated
its own regulations by bringing a removal proceeding against a national,
and that the INS failed to prove his alienage by clear and convincing
evidence. On May 6, 2002, while this petition was still pending, Shittu
was deported to Nigeria.
Although this Court generally lacks jurisdiction under
8 U.S.C. § 1252(a)(2)(C) to review a final order of removal, the
Court retains habeas jurisdiction to review removal orders under
28 U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 314 (2001); Sandoval
v. Reno, 166 F.3d 225, 231 (3d Cir. 1999). Although Shittu is no longer
"in custody," he was "in custody" when he filed his petition, and that is
all that the law requires. 28 U.S.C. § 2241(c); Chong v. Dist. Dir.
INS, 264 F.3d 378, 382-83 (3d Cir. 2001). Habeas review is limited, of
course, to errors of law. St. Cyr, 533 U.S. at 306-07; Sciglitano v.
Ashcroft, Civ. No. 00-0083, 2002 U.S. Dist. LEXIS 4988, at *10 (Mar. 25,
2002). Therefore this Court has jurisdiction to review Shittu's claim
that his pending application for citizenship makes him a "national of the
United States" not subject to removal under
8 U.S.C. § 1227(a)(2)(A)(iii).
The fact that Shittu has been deported does not moot his petition,
because an Article III, § 2 case or controversy continues to exist.
As a result of his removal as an "aggravated felon" alien, Shittu is
ineligible for readmission to the United States.
8 U.S.C. § 1182(a)(2)(A)(i), (a)(9)(A). Shittu's future
inadmissability is a concrete and ongoing "collateral consequence" of his
deportation, which preserves his Article III standing. See Spencer v.
Kemna, 533 U.S. 1, [523 U.S. 1], 12 (1998) ("it is an `obvious fact
of life that most criminal convictions do in fact entail adverse
collateral consequences'") (quoting Sibron v. New York, 392 U.S. 40,
55 (1968)); Chong, 264 F.3d at 386 (holding that habeas
petitioner's inability to reenter United States for ten years after
deportation was sufficient collateral consequence to render her petition
C. Petitioner's Status as a "National"
The Immigration and Nationality Act of 1952 ("INA") defines "alien" as
"any person not a citizen or national of the United States."
8 U.S.C. § 1101(a)(3). Section 1101(a)(22) defines "national of the
United States" as either a citizen or a "person who, though not a citizen
of United States, owes permanent allegiance to the United States." Shittu
argues that the combination of his long-time residence in the United
States and his naturalization application objectively demonstrate his
"permanent allegiance" in satisfaction of the statutory definition of
The term "national of the United States" historically referred to the
noncitizen inhabitants of U.S. territories, such as the Philippines,
Puerto Rico, and Guam. See Rabang v. INS, 35 F.3d 1449, 1452 n. 5 (9th
Cir. 1994). Congress first defined the term in the Nationality Act of
1940 as either a U.S. citizen or a non-alien "who, though not a citizen
of United States, owes permanent allegiance to the United States." 76
Pub.L. No. 853, §§ 101(a), (b),
204, 54 Stat. 1137, 1137, 1139-40
(1940); 7 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr,
Immigration Law and Procedure § 91.01[b], at 91-5 (rev. ed.
2001). This definition of "national of the United States" was
incorporated into the INA. 8 U.S.C. § 1101(a)(22).
Today, the number of inhabitants of U.S. territories has dwindled. The
numerous inhabitants of Puerto Rico and Guam gained U.S. citizenship in
1940 and 1950, respectively. Rabang, 35 F.3d at 1450 n. 1. The
Philippines gained independence in 1946. Olegario v. United States,
629 F.2d 204, 214 n. 7 (2d Cir. 1980). The only remaining"outlying
possessions" of the United States are American Samoa and Swains Island.
8 U.S.C. § 1101(a)(29). Based on the historical origins of the term
"national," the Government argues that "national" status should ...