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SHITTU v. ELWOOD

May 14, 2002

RASAQ OLADIMEJI SHITTU, PETITIONER
V.
KENNETH J. ELWOOD, DISTRICT DIRECTOR, INS PHILADELPHIA, IMMIGRATION & NATURALIZATION SERVICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, ATTORNEY GENERAL, U.S.A., RESPONDENTS.



The opinion of the court was delivered by: Schiller, Judge.

OPINION

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.

I. BACKGROUND

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 Appeals 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.

II. DISCUSSION

A. Jurisdiction

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).

B. Mootness

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 justiciable).

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 "national."

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[3][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. ยง 1101(a)(29). Based on the historical origins of the term "national," the Government argues that "national" status should ...


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