Removed as an alien convicted of felony

United States 5th Circuit Court of Appeals Reports

OMOLO v. GONZALES, 452 F.3d 404 (5th Cir. 2006) Mary
Anyango OMOLO, Petitioner-Appellant, v. Alberto R. GONZALES;
Michael Chertoff; Angela K. Barrow; Nuria Prendes; Robert
Douglas; Glen Edwards; Tina Tucker, Respondents-Appellees.
No. 05-10192. United States Court of Appeals, Fifth
Circuit. June 12, 2006. Page 405

Mary Anyango Omolo, Haskell, TX, pro se.

Appeal from the United States District Court for the
Northern District of Texas.

Before SMITH and STEWART, Circuit Judges, and HANEN,
District Judge.[fn*]

[fn*] District Judge for the Southern District of Texas,
sitting by designation. Page 406

CARL E. STEWART, Circuit Judge:

Mary Anyango Omolo appeals the district court’s denial of
her 28 U.S.C. § 2241 petition challenging her
detention on grounds that she is a United States national.
Omolo was ordered removed as an alien convicted of an
aggravated felony. She filed the underlying petition
asserting that she is a United States national and is,
therefore, not subject to removal. The district court
denied the petition concluding that it lacked jurisdiction
to consider Omolo’s nationality claim. For following
reasons, we also deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Omolo is a native and citizen of Kenya who was first
admitted to the United States in August of 1981. She became
a lawful permanent resident in 1994. In March 2001, Omolo
pleaded guilty to mail fraud in the Northern District of
Texas and was sentenced to twenty-four months in prison and
ordered to pay restitution in the amount of $17,832.41. She
appealed the conviction to this court; however, we dismissed
the appeal for failure to prosecute.

In June 2003, the Department of Homeland Security commenced
removal proceedings against Omolo, charging that she was
subject to removal as an alien convicted of an aggravated
felony. An immigration judge found Omolo removable as
charged and, in a decision dated April 29, 2005, the Board
of Immigration Appeals (“BIA”) affirmed.

In September 2004, Omolo filed the underlying § 2241
petition in the Northern District of Texas, arguing that
she had applied for naturalization in 1999, before her
criminal conviction, but that the Immigration and
Naturalization Service (“INS”) failed to process her
application properly and failed to notify her that the
application was missing certain documents. She alleged that
the INS violated her due process rights and that, but for
the INS’s negligence, she would have been naturalized.

In January 2005, Omolo filed an addendum to her §
2241 petition alleging that she was a United States
national and therefore not subject to removal.
Specifically, she asserted that, although her
naturalization application was still pending, she qualified
as a national because (1) she has resided in the United
States for nearly fifteen years; (2) she took a formal oath
of allegiance to the United States when she filed her
citizenship application; (3) both her husband and daughter
are United States citizens; (4) she has registered for
Selective Service; and (5) her aggravated felony conviction
was for a crime of fraud rather than an offense involving
narcotics or bodily harm. The district court denied Omolo’s
petition on January 24, 2005, concluding that it lacked
jurisdiction to consider her claim of nationality. Omolo
timely appealed.

DISCUSSION

A. Jurisdiction

The Immigration and Nationality Act provides that “[i]f 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.” 8 U.S.C. §
1252(b)(5)(A). The Act further provides that “the
petitioner may have such nationality claim decided only as
provided in this paragraph.” 8 U.S.C. §
1252(b)(5)(C); Alwan v. Ashcroft, 388 F.3d 507, 510 (5th
Cir. 2004). Accordingly, the district court correctly
concluded that it lacked jurisdiction Page 407 to consider
Omolo’s claim that she is a United States national.

On May 11, 2005, Congress passed the REAL ID Act, Pub.L.
No. 109-13, 119 Stat. 231, and amended the jurisdictional
provisions of the Immigration and Nationality Act. The Act
divested district courts of jurisdiction over removal
orders and designated the courts of appeals as the sole
forums for such challenges via petitions for review. 8
U.S.C. § 1252(a)(5); see also Rosales v. Bureau of
Immigration & Customs Enforcement, 426 F.3d 733, 735-36
(5th Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct.
1055, 163 L.Ed.2d 882 (2006). The REAL ID Act instructed
district courts to transfer to the appropriate courts of
appeals all 28 U.S.C. § 2241 petitions challenging
final orders of removal, deportation, or exclusion pending
in the district courts on the date of enactment of the Act,
May 11, 2005, Pub.L. 109-13, Div. B, Title I, §
106(c); however, it did not address how a court of appeals
should treat an appeal from the district court’s denial of
a § 2241 petition pending on the enactment date.
Nevertheless, we have held that “habeas petitions on appeal
as of May 11, 2005, . . . are properly converted into
petitions for review.” Rosales, 426 F.3d at 736.
Accordingly, because Omolo contends that she is a United
States national, thereby effectively challenging her
removal order, and her appeal was pending before this court
on the effective date of the REAL ID Act, we will consider
Omolo’s habeas petition as a timely filed petition for
review.

Construing Omolo’s habeas petition as a petition for review
raises an additional question as to our jurisdiction[fn1]
— whether Omolo’s failure to raise this issue before
the BIA precludes our review. Section 1252(d)(1) provides
in relevant part: “A court may review a final order of
removal only if-(1) the alien has exhausted all
administrative remedies available to the alien as of
right.” 8 U.S.C. § 1252(d)(1). We have previously
recognized that “an alien’s failure to exhaust his
administrative remedies serves as a jurisdictional bar to
our consideration of the issue.” Wang v. Ashcroft, 260 F.3d
448, 452 (5th Cir. 2001). Nevertheless, we always have
jurisdiction to determine our jurisdiction. Salazar-Regino
v. Trominski, 415 F.3d 436, 443 (5th Cir. 2005), petition
for cert. filed, 74 U.S.L.W. 3395 (U.S. Dec. 22, 2005) (No.
05-830). Only an “alien” may be required to exhaust his
administrative remedies; accordingly, we must determine
whether Omolo is an alien in order to determine whether
§ 1252(d)(1) bars our jurisdiction. See Moussa v.
INS, 302 F.3d 823, 825 (8th Cir. 2002); see also Theagene
v. Gonzales, 411 F.3d 1107, 1110 (9th Cir. 2005).

B. Omolo’s Nationality Claim

Only aliens are removable under the Immigration and
Nationality Act. Alwan, 388 F.3d at 512 (citing 8 U.S.C.
§ 1227). An “alien” is any person who is not a
citizen or national of the United States. 8 U.S.C. §
1101(a)(3). “The term `national of the United States’ means
(A) a citizen of the United States, or (B) a person Page
408 who, though not a citizen of the United States, owes
permanent allegiance to the United States.” 8 U.S.C.
§ 1101(22). As we have previously recognized, “[t]he
INA is silent as to what constitutes a `a person who . . .
owes permanent allegiance to the United States.'” Alwan,
388 F.3d at 513.

Omolo contends that she had objectively demonstrated her
allegiance to the United States prior to her conviction for
mail fraud. Though we have considered the issue, we have
not decided whether a person may become a national through
objective demonstrations of allegiance to the United
States. In Alwan, the petitioner argued that a person could
demonstrate permanent allegiance to the United States, and
thereby qualify as a national, by applying for citizenship
and objectively demonstrating allegiance. Like Omolo, Alwan
contended that he had demonstrated his allegiance by “(1)
applying for derivative citizenship on his parents’
applications for naturalization; (2) registering with the
Selective Service; and (3) taking an oath of allegiance
during a 1995 interview with an INS officer.” Id. The
Government argued that “national” is narrowly defined to
refer only to United States citizens and inhabitants of
certain United States territories. Id. at 513. We declined
to determine which definition of “national” applied because
the petitioner did not qualify under either standard. Id.

Nevertheless, several of our sister circuits have
considered this question and the majority have held that a
person may become a national only by birth or by completing
the naturalization process. See Abou-Haidar v. Gonzales,
437 F.3d 206, 207 (1st Cir. 2006); Marquez-Almanzar v. INS,
418 F.3d 210, 218-19 (2d Cir. 2005); Sebastian-Soler v.
U.S. Attorney General, 409 F.3d 1280, 1285-87 (11th Cir.
2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1662, 164
L.Ed.2d 397 (2006); Salim v. Ashcroft, 350 F.3d 307, 309-10
(3d Cir. 2003); Perdomo-Padilla v. Ashcroft, 333 F.3d 964,
972 (9th Cir. 2003); see also United States v.
Jimenez-Alcala, 353 F.3d 858, 861 (10th Cir. 2003). But see
United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996)
(concluding in the context of a criminal appeal that an
intended murder victim was a United States citizen because
he had applied for citizenship). In Perdomo-Padilla, 333
F.3d at 967-72, the Ninth Circuit thoroughly analyzed both
the historical meaning of the word “national” and the text
of § 1101(a)(22). Citing to decisions of the Supreme
Court and the Courts of Appeals, the court explained that
“[t]raditionally, only persons born in territories of the
United States were non-citizen nationals.” Id. at 967. With
regard to the text of the statute, the court reasoned that
the petitioner’s interpretation would lead to absurd
results because “rejected naturalization applicants who do
not renounce their statements of allegiance could remain
nationals of the United States.” Id. at 968-69. The court
examined the context of the statute and observed that

the statutory provision immediately following the
definition of “national of the United States” provides
that “naturalization” is the path by which a person
attains nationality after birth. Section 1101(a)(23) makes
no provision for the attainment of nationality short of
full naturalization and, therefore, is consistent with our
conclusion that one may become a “national of the United
States” only through birth or by completing the process
of becoming a naturalized citizen.

Id. at 969. Finally, the court noted that the petitioner’s
interpretation was inconsistent with other statutory
provisions governing nationality. The court observed that
Page 409

8 U.S.C. § 1408, lists four categories of persons
who are classified as nationals, but not citizens, of the
United States. All the categories enumerated in §
1408 relate in some way to birth in an outlying possession
of the United States, or birth to parents who are
nationals of the United States. Under traditional
principles of statutory interpretation, the fact that
Congress has defined “national” as including only those
categories of persons is significant.

Id. at 969-70 (footnote and citation omitted). The court
also cited 8 U.S.C. § 1481 as an example; “[t]hat
provision sets forth a number of ways in which a `person
who is a national of the United States whether by birth or
naturalization, shall lose his nationality.'” Id. at 970
(emphasis in original) (quoting 8 U.S.C. § 1481(a)).
In light of this analysis, the Ninth Circuit held that “a
person can become a `national of the United States’ under
the INA only through birth or naturalization.” Id. at 972.
We are persuaded by the Ninth Circuit’s reasoning.
Accordingly, we join the majority of our sister circuits in
holding that a person may become a national only by birth
or by completing the naturalization process. Therefore,
because Omolo was not born in the United States nor has she
completed the naturalization process, she is not a national
of the United States.

CONCLUSION

For the foregoing reasons, the petition for review is
DENIED. Omolo’s motion to appoint counsel is DENIED.

[fn1] We note that Omolo has already had one petition for
review adjudicated in this court in which she failed to
raise a nationality claim. On May 18, 2005, Omolo filed a
pro se petition for review in this court. The Government
moved to dismiss for lack of jurisdiction. On December 1,
2005, we granted the Government’s motion and dismissed the
petition for review. See Omolo v. Gonzales, No. 05-60429
(5th Cir. Dec. 1, 2005) (unpublished). Nevertheless,
because Omolo filed the underlying § 2241 petition
before she filed the petition for review and she informed
the court that she had a nationality claim pending in the
instant case, we conclude she did not forfeit the claim by
failing to raise it in her petition for review.