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


3-21-2006

Obianyo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4561




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4561
                                  ________________

                                UCHENNA OBIANYO,
                                              Petitioner

                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                             Respondent

                    _______________________________________

                     On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                             (Agency No. A72 827 816)
                   Immigration Judge: Honorable Walter A. Durling

                    _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 21, 2006

      Before: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES

                               (Filed: March 21, 2006)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      An Immigration Judge ordered Uchenna Obianyo removed from the United States

but granted his application for relief from removal under the Convention Against Torture
(CAT). The Board of Immigration Appeals (BIA) dismissed the government’s appeal

from the order granting CAT relief, and subsequently denied its motion to reconsider.

Obianyo now asserts that he is a national of the United States and cannot be removed.

For the following reasons, we will deny the petition for review.

       Obianyo, a native of Nigeria, arrived in the United States in 1989 and became a

lawful permanent resident in 1994. Obianyo was convicted of stalking in Tennessee in

1997, and again in Pennsylvania in 2000. Based on these convictions, an Immigration

Judge (IJ) ordered Obianyo removed from the United States for having been convicted of

two or more crimes involving moral turpitude. Obianyo was permitted to apply for

asylum and cancellation of removal, as well as other relief from removal under the CAT.

The IJ denied asylum and cancellation of removal, but granted withholding and deferral

of removal to Nigeria. The BIA dismissed the government’s appeal in September 2004

and denied the government’s motion to reconsider in December 2004.

       In the meantime, Obianyo filed a habeas corpus petition in the District Court,

asserting that he cannot be removed because he is a national of the United States. He also

challenged his detention in light of the IJ’s decision granting CAT relief. After Obianyo

was released from detention in January 2005, he conceded to the District Court that his

challenge to detention was moot, but maintained that his order of removal was unlawful

based on his status as a national of the United States. The District Court dismissed

Obianyo’s challenge to detention as moot in light of his release, and transferred his



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petition asserting nationality to this Court to be treated as a petition for review under the

REAL ID Act. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).

       We will deny Obianyo’s petition for review. His sole argument is that he is a

national of the United States because he applied for naturalization in 1998. Because

Obianyo never presented his nationality claim to the BIA, the claim is deemed

unexhausted. See Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005). Absent

exhaustion of available administrative remedies, we are without jurisdiction to consider

the claim. See 8 U.S.C. § 1252(d)(1); Popal, 416 F.3d at 252-53.1

       Even if we were to exercise jurisdiction over Obianyo’s unexhausted nationality

claim, we would reject it. A national is either a citizen of the United States, or “a person

who, though not a citizen of the United States, owes permanent allegiance to the United

States.” 8 U.S.C. § 1101(a)(22). For a citizen of another country, “nothing less than

citizenship will show ‘permanent allegiance to the United States.’” Salim v. Ashcroft,

350 F.3d 307, 310 (3d Cir. 2003). Although Obianyo applied for naturalization, his

application was eventually denied, as he concedes. Accordingly, Obianyo is not a

naturalized citizen and thus not a national of the United States. We will deny his petition

for review.




  1
   We are aware that at least one Court of Appeals has recognized an exception to the
exhaustion requirement for a nationality claim. See Theagene v. Gonzales, 411 F.3d
1107, 1111 (9th Cir. 2005). While we do not question the extreme importance of a
nationality claim, we decline to follow the Ninth Circuit’s lead at this time.

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