                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2006

Calix-Chavarria v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3447




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                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-3447
                                  ________________

                           JOSE A. CALIX-CHAVARRIA,
                                              Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                       On a Petition For Review of an Order
                        of the Board of Immigration Appeals
                              Agency No. A42-785-878
                   Immigration Judge: Honorable Walter A. Durling
                          __________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 14, 2006

          Before; MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                 (Filed May 12, 2006)

                                 _________________

                                     OPINION
                                 _________________


PER CURIAM

      Petitioner Jose Calix-Chavarria, a native of Honduras, entered the United States as

an immigrant on July 11, 1990 at the age of eight. On August 26, 2002, Chavarria was

convicted in the Franklin County, Pennsylvania Court of Common Pleas of possession of
a controlled substance, 1 gram of cocaine, with intent to deliver in violation of 35 Pa.

Cons. Stat. Ann. § 780-113(a)(30). Chavarria was sentenced to nine months in the

Franklin County Prison Work Release Program. Removal proceedings were commenced,

and the Notice to Appear charged Chavarria as removable pursuant to Immigration and

Nationality Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of

an aggravated felony. He later was charged as removable, in addition, pursuant to INA §

237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B), as an alien convicted of a controlled substance

violation.

       Chavarria petitioned the Immigration Court to recognize him as a United States

citizen. A.R. 88-89. His mother, Reina Calix, who was divorced from his father, applied

for citizenship when he was 16.1 Her application was submitted with his name on it as

her minor child entitled to derivative citizenship. Although he turned 18 by the time she

actually was naturalized, under the Child Status Protection Act, his claim to derivative

American citizenship should not fail because he met the age requirement when she made

her application.

       The Immigration Judge denied Chavarria’s claim, because, as a matter of fact, he

turned 18 on November 17, 1999 and his mother was not naturalized until March 10,

2000. The IJ commented, however, that: “There’s a question I suppose that you were

under the age of 18 while the application was pending, it was just by fortuitous


   1
    Chavarria was born on November 17, 1981. Thus, he actually was 15 when his
mother applied for citizenship.
                                             2
circumstances, or lack thereof in your case that it took the Government that much time to

adjudicate your mother’s citizenship application and grant her citizenship.” A.R. 78. The

IJ further concluded that Chavarria did not qualify for derivative citizenship under the

Child Citizenship Act of 2000, because he already was 18 when this act went into effect

on February 27, 2001. Chavarria was ordered to be removed from the United States to

Honduras as an alien convicted of an aggravated felony, his cocaine conviction qualifying

as a drug trafficking conviction.

       Chavarria appealed to the Board of Immigration Appeals. The administrative

record indicates that the Office of the Clerk issued a briefing schedule, directing

Chavarria to submit his brief by September 29, 2004. A.R. 26. The administrative record

further indicates that Chavarria’s brief, which he titled “Motion for Relief from

Deportation Due to Claim to National or Citizenship Derived from his Mother A

Naturalized United States Citizen,” was received by the Board on September 15, 2004.

A.R. 14, 15, 21. In his “brief,” Chavarria raised the same derivative citizenship argument

he raised before the IJ, that is, he contended that, under the Child Status Protection Act,

his age at the time his mother applied for naturalization should determine his derivative

citizenship claim.

       On October 18, 2004, the Board affirmed without opinion under 8 C.F.R. §

1003.1(e)(4). Meanwhile, in September 2004, Chavarria filed a petition for writ of

habeas corpus in United States District Court for the Middle District of Pennsylvania,

which, after passage of the Real ID Act of 2005, § 106(a), Pub. L. No. 109-13, was

                                              3
transferred here by the District Court for treatment as a petition for review.2

       We will grant the petition for review, vacate the October 18, 2004 decision of the

Board of Immigration Appeals, and remand the matter for consideration of Chavarria’s

argument that the reasoning of the Child Status Protection Act applies to his claim for

derivative citizenship. When the Board affirms without opinion, we review the

Immigration Judge’s decision. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en

banc). The issue of derivative citizenship of an alien is a purely legal issue of statutory

interpretation, see Morgan v. U.S. Attorney General, 432 F.3d 226, 229 (3d Cir. 2005),

over which we exercise plenary review, see Jordan v. U.S. Attorney General, 424 F.3d

320, 328 (3d Cir. 2005).

       A “criminal alien” is one who is deportable for having committed certain offenses

covered in 8 U.S.C. § 1227(a)(2)(A)(iii), including aggravated felonies. An “aggravated

felony” includes “illicit trafficking in a controlled substance (as defined in section 802 of

Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8

U.S.C. § 1101(a)(43)(B). In Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir. 2002), we

held that a state drug conviction constitutes an aggravated felony if it is a felony under



   2
     Transfer of the habeas petition was proper. The REAL ID Act eliminated judicial
review in habeas of a final order of removal, but it permits review of constitutional claims
and questions of law of the type raised by Chavarria in his petition for review. 8 U.S.C. §
1252(a)(2)(D). See also Papageorgiou v. Gonzales, 413 F.3d 356, 358-59 (3d Cir. 2005).
The Act also provided for transfer of habeas petitions pending in the district courts to the
courts of appeals, and further provided that the mandatory 30-day time period for filing a
petition for review, 8 U.S.C. § 1252(b)(1), shall not apply to transferred cases.
                                              4
state law and contains a trafficking element. A trafficking element involves "the unlawful

trading or dealing of any controlled substance." Steele v. Blackman, 236 F.3d 130, 135

(3d Cir. 2001). "Essential to the concept of trading or dealing is activity of a business or

merchant nature, thus excluding simple possession or transfer without consideration." Id.

(internal quotation marks and citation omitted).

         In applying the formal categorical approach of Taylor v. United States, 495 U.S.

575 (1990), for determining whether an alien's conviction is for an aggravated felony, we

may look only to the statutory definition of the offense, and may not consider the

particular facts underlying a conviction. Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir.

2004). Section 780-113(a)(30) of the Pennsylvania criminal code provides in pertinent

part that “possession with intent to ... deliver” a controlled substance is a prohibited act.

Chavarria’s conviction is a felony under state law punishable by imprisonment not

exceeding ten years. 35 Pa. Cons. Stat. Ann. § 780-113(f)(1.1).

         The Attorney General has argued that section 780-113(a)(30) also contains a

trafficking element, but we are not persuaded. The Pennsylvania Superior Court held in

Commw. v. Morrow, 650 A.2d 907 (Pa. Super. Ct. 1994), that an individual may violate

section 780-113(a)(30) without an exchange of money and without a profit because the

prohibited conduct is the "actual, constructive or attempted transfer from one person to

another." Id. at 912. See also Commw. v. Jones, 586 A.2d 433, 435-36 (Pa. Super. Ct.

1991).

         However, even assuming that section 780-113(a)(30) does not contain a trafficking

                                               5
element, we must still analyze whether Chavarria’s conviction constitutes an aggravated

felony under the "hypothetical federal felony" route. Gerbier, 280 F.3d at 315. To

determine whether a state drug conviction qualifies as a "hypothetical federal felony"

under § 924(c)(2) (defining "drug trafficking crime" as "any felony punishable under the

Controlled Substances Act ..."), we must look to see whether the state drug conviction is

punishable as a felony under the Controlled Substances Act. Id.

       Whether a substantive drug offense contained in the Controlled Substances Act is a

felony is controlled by 18 U.S.C. § 3559, which provides that, if the crime prescribes a

maximum sentence of more than one year, it is a felony. Here, the pertinent federal

analog is 21 U.S.C. § 841(a), which prohibits the knowing or intentional “possess[ion]

with intent to ... distribute” a controlled substance, for example, cocaine. Possession with

intent to distribute cocaine carries a maximum penalty in excess of one year. 21 U.S.C. §

841(b)(1)(C) (providing for a maximum sentence of 20 years). Unlike the Delaware

statute in Gerbier, 280 F.3d at 300-01, section 780-113(a)(30) is not in any part a

possession statute. Thus, the federal possession statute, 21 U.S.C. § 844(a), is not the

pertinent federal analog.

       Therefore, Chavarria’s conviction is for an aggravated felony under federal

immigration law. Chavarria, however, claims to be a United States citizen pursuant to

former INA § 321(a), 8 U.S.C. § 1432(a), which generally provides for derivative




                                             6
citizenship of alien children upon their parents’ naturalization.3 As such, he cannot be

removed from the United States for his drug conviction.

        We look to the actual language of a statute in interpreting it. Connecticut Nat’l

Bank v. Germain, 503 U.S. 249, 253-54 (1992). Section 321(a) provides in relevant part

that:

               A child born outside of the United States of alien parents ... becomes a
               citizen of the United States upon fulfillment of the following conditions:

               (1)    The naturalization of both parents; or

               (2)    The naturalization of the surviving parent if one of the parents is
                      deceased; or

               (3)    The naturalization of the parent having legal custody of the child
                      when there has been a legal separation of the parents or the
                      naturalization of the mother if the child was born out of wedlock and
                      the paternity of the child has not been established by legitimation;
                      and if

               (4)    such naturalization takes place while such child is under the age of
                      eighteen years; and

               (5)    such child is residing in the United States pursuant to a lawful
                      admission for permanent residence at the time of the naturalization
                      of the parent last naturalized under clause (2) or (3) of this
                      subsection, or thereafter begins to reside permanently in the United


   3
     Section 321, 8 U.S.C. § 1432, was repealed by the Child Citizenship Act of 2000
(“CCA”), Pub. L. No. 106-395, which took effect on February 27, 2001. The CCA
liberalized the conditions for derivative citizenship of alien children of naturalized
parents, but it is not retroactive. See, e.g., Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir.
2003). Thus, former section 321, which was in effect when Chavarria was born, when he
turned 18, and when his mother naturalized, controls his claim for derivative citizenship.
See, e.g., Bagot v. Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005). We agree with the IJ
that the CCA does not apply retroactively to grant derivative citizenship to Chavarria.
                                              7
                     States while under the age of eighteen years.

8 U.S.C. § 1432(a) (repealed).

       Reina Calix applied for citizenship on July 30, 1997. Chavarria was 15 at the time

and living with his mother. It evidently is not in dispute that Chavarria satisfies

subparagraphs (a)(3) and (a)(5). Subparagraph (a)(4), however, by its literal terms

requires that, “such naturalization takes place while such child is under the age of

eighteen years.” Former INA § 321(a)(4) thus appears to defeat Chavarria’s claim for

derivative citizenship, because his mother did not naturalize until almost four months

after he turned 18. In short, he was not under the age of 18 when his mother actually

naturalized.

       Chavarria, however, had no control over the process of applying, and would have

derived citizenship if the entire process had taken 27½ months instead of almost 31½

months. The Child Status Protection Act of 2002 (“CSPA”), Pub. L. No. 107-208, 116

Stat. 927, amended the Immigration and Nationality Act to provide “age-out” protection

for individuals who were children at the time a petition or application for permanent

resident status was filed on their behalf. See Padash v. Immigration & Naturalization

Serv., 358 F.3d 1161, 1167 (9th Cir. 2004). The CSPA is not directly applicable to

Chavarria’s derivative citizenship claim; it applies only to INA §§ 201, 203, 204,

207(c)(2), and 208(b)(3), see 8 U.S.C. § 1151, 1153, 1154, 1157(c)(2), and 1158(b)(3),

respectively.

       Whether the CSPA’s reasoning should apply to Chavarria’s case is another matter

                                              8
altogether, however. The purpose of the CSPA was to address the problem of those

aliens, who through no fault of their own, lost the opportunity to adjust their status.

Padesh, 358 F.3d at 1172-73 (citing 2002 U.S.C.C.A.N. 640, 641)). In recommending the

bill, the House Judiciary Committee noted that, because of administrative delays of up to

three years, approximately one thousand of the visa applications reviewed each year were

for individuals who had aged-out since the time they had filed their petitions. Id. The

CSPA was intended to address the “harsh and arbitrary” effects of age-out provisions.

Padesh, 358 F.3d at 1173.

       These concerns in the context of adjustment of status are no less important in the

context of citizenship if, as a matter of fact, there was delay in the processing of

Chavarria’s mother’s application. Applicants for naturalization must complete the

application, get photographed and fingerprinted, submit to a criminal background check,

and be examined on the application, English literacy and basic knowledge of the history

and government of the United States. 8 C.F.R. § 335.2. In his reply brief, Chavarria

asserts that he and his mother have tried to learn when her N-400 application for

citizenship was approved, but immigration authorities have refused to disclose this

information. (Appellant’s Reply Brief, at 2.) He also asserts that his mother took and

passed the citizenship written examination prior to his eighteenth birthday. Id. at 4.

       The Attorney General has argued that whether the CSPA’s reasoning should apply

to Chavarria’s case should be addressed by the Board of Immigration Appeals in the first

instance, and we agree. Congress has exclusive constitutional authority over

                                              9
naturalization. Immigration & Naturalization Serv. v. Pangilinan, 486 U.S. 875, 882

(1988). Federal courts do not have the power to confer citizenship in violation of the

limitations established by statutes enacted by Congress. Id. at 884-85. The congressional

command in Chavarria’s case, however, is not as manifest as it might be following

passage of the CSPA.

       Moreover, the Board’s failure to address an issue that was briefed, and even noted

by the Immigration Judge, does not permit us to draw any conclusions about where the

delay occurred. We do not, for example, know generally how long it took to process an

application for naturalization during the relevant time period, how long it took to

administer the oath once an application was approved, or whether an alien has any control

over the scheduling of the oath which completes the naturalization. The Attorney General

should supply this and other relevant information to the Board on remand.4

       We will grant the petition for review and vacate the October 18, 2004 decision,

and remand the matter to the Board of Immigration Appeals for further proceedings.




   4
     Finally, Chavarria contends that his continued detention violates due process, see
Zadvydas v. Davis, 533 U.S. 678 (2001). The District Court appropriately exercised
jurisdiction over this claim and denied it. Chavarria timely filed a motion for
reconsideration on July 19, 2005. The Attorney General has argued that we lack authority
to review the contention because Chavarria must independently appeal this part of the
order disposing of the due process issue on the merits. See Appellee’s Brief, at 23. We
agree that we lack jurisdiction, because Chavarria must independently appeal once the
District Court rules on his motion for reconsideration.
                                            10
