United States District Court, M.D. Pennsylvania
April 23, 2004.
LUIS GOMEZ, Petitioner
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT'S INTERIM, FIELD OFFICE DIRECTOR FOR, DETENTION AND REMOVAL FOR THE PHILADELPHIA DISTRICT, Respondent
The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court is Petitioner Luis Gomez's petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, who is
currently detained in Pike County, Pennsylvania, challenges the
lawfulness of his final order of removal from the United States and
asserts that his removal is not appropriate because he is a national
under 8 U.S.C. § 1101(a)(22). Because the court concludes that Petitioner
is not a national, the court will deny his habeas petition.
Petitioner is a native and citizen of the Dominican Republic and was
admitted to the United States on October 31, 1962. (Ex. A in Supp. of Am.
Pet. for Writ of Habeas Corpus.) On September 9, 1975 Petitioner enlisted
in the United States Marine Corps and signed an Oath of Enlistment. (Ex.
B in Supp. of Am. Pet. for Writ of Habeas Corpus.) The Oath states: I,_____, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United
States against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the
same; and that I will obey the orders of the
President of the United States and the orders of
the officers appointed over me, according to
regulations and the Uniform Code of Military
Justice. So help me God.
(Am. Pet. for Writ of Habeas Corpus at 2.) Petitioner served the
military on active duty for three years. During this time, he was
promoted to the rank of Lance Corporal. (Am. Pet. for Writ of Habeas
Corpus at 3.) On November 11, 1977, Petitioner witnessed a helicopter
crash that triggered a nervous breakdown and was later diagnosed with
schizophrenia. (Id.) Petitioner was transported to the Veterans
Administration ("VA") Hospital for treatment and was placed on the
temporary disability retired list. (Id.) He was released from
the VA Hospital in March 1978. (Id.)
On July 10, 1979, Petitioner was convicted of manslaughter and received
a 10-year sentence. (Id.) While incarcerated, Petitioner was
discharged from the Marine Corps by reason of physical disability with
severance pay effective April 15, 1986. (Id.) Petitioner also
took college-level courses during his incarceration and married Belkis
Gomez, with whom he has two sons, Jose and David. (Id. at 4.)
Petitioner was released from prison in February 1988.
In 1998, Petitioner was convicted and sentenced for the attempted
criminal sale of heroin in the third degree. (Gov't's Resp. to Am. Pet.
for Writ of Habeas Corpus at 2.) While serving this sentence, the former
Immigration and Naturalization Service, now the Bureau of Immigration and
Customs Enforcement ("ICE"), commenced removal proceedings on February 9,
2000. (Id. at 2-3.) An Immigration Judge ordered Petitioner
removed to the Dominican Republic on April 25, 2001 pursuant to
8 U.S.C. § 237(a)(2)(A)(iii) and (a)(2)(B)(i) as an alien who has been convicted of an aggravated felony*fn1 and of violating a
controlled substance law respectively. (Id. at 3.) Petitioner
appealed the decision to the Board of Immigration Appeals ("the Board"),
but the Board affirmed the Immigration Judge in an August 6, 2001 order.
On December 4, 2003, Petitioner was released from prison. (Am. Pet. for
Writ of Habeas Corpus at 4.) Upon release, he was detained by ICE, and he
remains in its custody. (Id.) Petitioner filed a petition for
writ of habeas corpus on February 10, 2004. The parties have briefed the
issues, and the matter is ripe for disposition.*fn2
II. Legal Standard
Under 28 U.S.C. § 2241(c)(3), a writ of habeas corpus may extend to
any person "in custody in violation of the Constitution or laws or
treaties of the United States." See also Zadvydas v. Davis,
533 U.S. 678, 687 (2001). Recently, the Supreme Court established that
despite comprehensive amendments to judicial review of immigration
decisions through the Antiterrorism and Effective Death Penalty Act of
1996 and the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, federal district courts have jurisdiction to decide habeas
corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to
deportation. INS v. St. Cyr, 533 U.S. 289, 314 (2001); see
also Chong v. Dist. Dir., INS, 264 F.3d 378, 382 (3d Cir. 2001).
However, a district court's review of administrative immigration decisions under § 2241 is limited. First, a district court
reviews only the opinion of the Board and does not review both the
Board's and the Immigration Judge's opinions. Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Second, the standard of
review is restricted to purely legal questions. Bakhtriger v.
Elwood, 360 F.3d 414, 424 (3d Cir. 2004); Sol v. INS,
274 F.3d 648, 651 (2d Cir. 2001); Bowrin v. INS, 194 F.3d 483, 490
(4th Cir. 1999). Specifically, a district court may review statutory and
constitutional claims as well as claims asserting the erroneous
application of legal principles to undisputed facts. Bakhtriger,
360 F.3d at 424-25; Ogbudimpka v. Ashcroft, 342 F.3d 207, 222
(3d Cir. 2003). However, federal jurisdiction over § 2241 petitions
does not extend to review of discretionary determinations made by the
Board. Bakhtriger, 360 F.3d at 420; Sol, 274 F.3d at 651.
Petitioner contends that his habeas petition should be granted because
only aliens may be removed from the United States. Because Petitioner
qualifies as a national, his argument goes, he is excluded from the
statutory definition of "alien." In response, the Government contends
that the court lacks jurisdiction to hear Petitioner's claims and that,
in the alternative, Petitioner is not a national as that term is defined
in the United States Code and Third Circuit precedent. Because the court
finds the Government's second argument persuasive, the court will deny
Petitioner's habeas petition. A. The court has jurisdiction over Petitioner's habeas
The Government argues that the district court does not have
jurisdiction to decide Petitioner's habeas petition because under
8 U.S.C. § 1252(b)(5), the court of appeals has sole jurisdiction to
determine nationality claims. Section 1252(b)(5) provides in relevant
(A) Court determination if no issue of fact. If
the petitioner claims to be a national of the
United States and the court of appeals finds from
the pleadings and affidavits that no genuine issue
of material fact about the petitioner's
nationality is presented, the court shall decide
the nationality claim.
(B) Transfer if issue of fact. If the petitioner
claims to be a national of the United States and
the court of appeals finds that a genuine issue
of material fact about the petitioner's
nationality is presented, the court shall
transfer the proceeding to the district court of
the United States for the judicial district in
which the petitioner resides for a new hearing
on the nationality claim. . . .
The Government interprets this statute as requiring district courts
to transfer habeas petitions regarding nationality to the relevant court
The court rejects the Government's argument. It is well-established
that district courts retain jurisdiction over habeas corpus petitions
under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 239,
314 (2001); Sandoval v. Reno, 166 F.3d 225, 231 (3d Cir. 1999).
In INS v. St. Cyr, 533 U.S. 239 (2001), the Supreme court
analyzed 8 U.S.C. § 1252(b)(9). Although the Court found the
statute's purpose was to consolidate judicial review into one action at
the appellate court level, the Court determined that the statute applied
only to review of an order of removal and not to habeas petitions.
Id. at 313. The Court also concluded that in the absence of a
"clear, unambiguous, and express statement of congressional intent to
preclude judicial consideration of habeas petitions," preventing district
courts from retaining jurisdiction over habeas petitions would raise serious
constitutional questions. Id. at 314. Finally, the Court noted
that judicial review and habeas corpus petitions are historically
distinct legal concepts. Id. at 313.
Like the statute in St. Cyr, § 1252(b)(5) does not contain
a "clear, unambiguous, and express statement of congressional intent" to
divest district courts from jurisdiction over habeas petitions. Thus,
following the Supreme Court's reasoning in St. Cyr, to divest
district courts of jurisdiction in habeas petitions would raise serious
questions of constitutionality. Additionally, § 1252(b)(5) only
relates to judicial review of orders of removal. See
8 U.S.C. § 1252(b) (setting forth the requirements for review of orders of
removal). In St. Cyr, the Supreme Court acknowledged that
judicial review is legally distinct from a habeas petition. Therefore,
§ 1252(b)(5) cannot be said to preclude the district court's
jurisdiction over a petition for writ of habeas corpus.
The Government relies on Salim v. Ashcroft, 350 F.3d 307 (3d
Cir. 2003) for the proposition that the Third Circuit has recognized that
jurisdiction over nationality claims lies only with the appellate court.
In Salim, the Third Circuit, in relying on § 1252(b)(5),
concluded that it had "jurisdiction to determine jurisdictional issues;
that is to say, we are empowered to decide whether Salim is an alien."
Id. at 308. The Third Circuit did not, however, hold that §
1252(b)(5) divested district courts of jurisdiction over habeas petitions
regarding nationality claims. In fact, the Salim court did not
even address the issue. Further, the Third Circuit examined the
Salim case under a petition for judicial review, not an appeal
of a habeas decision from the district court. As previously stated, a
petition for judicial review is historically distinct from a petition for writ of habeas
corpus.*fn3 St. Cyr. 533 U.S. at 313. In sum, Salim does not
hold that § 1252(b)(5) divests the district court's jurisdiction in
habeas petitions where nationality is at issue.
The Government also relies on several cases from other jurisdictions
that hold that § 1252(b)(5) requires district courts to transfer
habeas petitions raising nationality allegations to the relevant court of
appeals. See Baeta v. Sonchik, 273 F.3d 1261, 1264 (9th Cir.
2001); Rodriguez v. Ashcroft, No. 02-Civ.-1188, 2003 WL 42018,
at *4 (S.D.N.Y. Jan. 6, 2003). Because the court finds that the plain
language of the statute does not preclude the district court from
deciding habeas petitions, the court is not persuaded by this line of
cases. Further, the Third Circuit has not directly addressed the
issue.*fn4 In short, following the rationale of the Supreme Court in
St. Cyr, the court concludes that it has jurisdiction over
habeas petitions regarding nationality.
B. Petitioner is not a national of the United
States. Petitioner alleges that he cannot be deported because he is a national
of the United States under 8 U.S.C. § 1101(a)(22). Petitioner claims
that the Oath of Enlistment he was required to take when he joined the
Marine Corps is objective proof that he owes a permanent allegiance to
the United States.
A national is defined as "(A) a citizen of the United States, or (B) a
person who, though not a citizen of the United states, owes a permanent
allegiance to the United States." 8 U.S.C. § 1101(a)(22). The Third
Circuit has held that when a petitioner is a citizen of another country,
"nothing less than [United States] citizenship will show `permanent
allegiance to the United States.'" Salim, 350 F.3d at 310
(quoting 8 U.S.C. § 1101(a)(22)). In reaching this conclusion, the
court relied on the Ninth Circuit's decision in Perdomo-Padilla v.
Ashcroft, 333 F.3d 964, 969 (9th Cir. 2003), which held that "one
may become a `national of the United States' only through birth or by
completing the process of becoming a naturalized citizen." The
Salim court, therefore, reasoned that an application for
citizenship was insufficient to show that one owes a permanent allegiance
to the United States. Id. Further, the court was not persuaded
that a petitioner who resided in the United States for thirty years, was
married to a U.S. citizen, and had two naturalized U.S. children owed a
permanent allegiance to the United States. Id. The petitioner in
Salim argued that he owed a permanent allegiance to the United
States because he had filed a naturalization application and had
registered with the Selective Service. Id. at 309. Despite this,
the court remarked that "[t]his country has not conferred any status on
him that would cause him to `owe' his allegiance to the United States."
Id. at 310. Because Petitioner is a citizen of another country, the reasoning in
Salim instructs that he must be a United States citizen in order
to show that he owes a permanent allegiance to the United States. That
is, Petitioner must demonstrate that he was born in the United States or
completed the process of naturalization. The Marine Corps' Oath of
Enlistment does not confer citizenship; therefore, it is insufficient to
show that Petitioner owes a permanent allegiance to the United States.
Further, Petitioner does not even allege that he ever even applied for
citizenship to the United States. Petitioner has merely declared his
subjective intent to owe a permanent allegiance to the United States.
Proof of permanent allegiance, however, must be shown objectively.
See Salim, 350 F.3d at 310 ("Although [the petitioner] may
subjectively declare an allegiance to the United States, that is not
In accordance with the foregoing discussion, the court determines that
it has jurisdiction over Petitioner's habeas petition because the plain
language of 8 U.S.C. § 1252(b)(5) does not foreclose jurisdiction of
habeas claims and only applies to judicial review, which is a distinct
legal issue. Further, foreclosing jurisdiction in habeas claims raises
serious constitutional issues. Nevertheless, the court will deny
Petitioner's habeas petition because Petitioner failed to demonstrate
that he is a national of the United States. An appropriate order will
In accordance with the accompanying memorandum, IT IS HEREBY
1) Petitioner Luis Gomez's petition for writ of habeas corpus
2) The Clerk of Court shall close the case file.