                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                  FILED
                                                            U.S. COURT OF APPEALS
                                 No. 09-14850                 ELEVENTH CIRCUIT
                                                                  APRIL 12, 2010
                             Non-Argument Calendar
                                                                   JOHN LEY
                           ________________________
                                                                    CLERK

                        D. C. Docket No. 09-21217-CV-AJ


KAMAGA ROBERTS,


                                                                Plaintiff-Appellant,

                                      versus

INS,

                                                              Defendant-Appellee.


                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                  (April 12, 2010)

Before TJOFLAT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

       Kamaga Roberts pro se appeals from the district court’s sua sponte dismissal
of her amended complaint. After review, we affirm.

                               I. BACKGROUND

A.    Naturalization Application

      Roberts is a Jamaican citizen who has been living in the United States for

approximately 24 years. In January 2008, Roberts submitted a naturalization

application to become a United States citizen. In May 2008, Roberts completed

her citizenship interview and passed a civics test and a Federal Bureau of

Investigation background check.

      In June 2008, while her naturalization application was pending, Roberts was

arrested on two felony counts of importing cocaine into the United States and

possessing cocaine with the intent to distribute it. In October 2008, Roberts pled

guilty in federal court to both counts and received a 21-month sentence.

      The Department of Homeland Security (“DHS”) subsequently denied

Roberts’ naturalization application. Roberts has not challenged before an

immigration officer the denial of her naturalization application. DHS issued a

detainer advising that it sought custody of Roberts for purposes of removing her

after her prison term ends. Roberts received notice of the detainer, but has not

received a Notice to Appear commencing removal proceedings. In her appeal

brief, Roberts admits that she has not yet been taken into DHS custody.



                                          2
B.     First Complaint

       While serving her prison sentence, Roberts pro se filed this civil action

seeking: (1) review of her naturalization application; (2) removal of the detainer

lodged against her; and (3) a declaration that she is a national of the United States.

The district court sua sponte dismissed Roberts’ complaint, but gave Roberts until

June 11, 2009 to file an amended complaint. The district court rejected Roberts’s

argument that 8 U.S.C. § 1252(b)(5) provided the jurisdictional basis to review

Roberts’ nationality claim. Instead, the district court liberally construed Roberts’

complaint to raise a nationality claim under 28 U.S.C. § 2241 and 28 U.S.C.

§ 2201 and concluded that Roberts’ complaint failed to state a claim. The district

court also determined that filing her naturalization application and swearing

allegiance to the United States were insufficient to make Roberts a U.S. national.1

C.     Amended Complaint

       Roberts timely filed a pro se pleading–titled a Declaration of

Nationality–seeking relief under 8 U.S.C. §§ 1429 and 1101(a)(22)2 and reiterating



       1
        Although the district court did not cite a provision for its sua sponte review of Roberts’
complaint, it appears to have been acting pursuant to 28 U.S.C. § 1915 and to have dismissed
Roberts’ § 2241 claim for failure to state a claim, pursuant to § 1915(e)(2)(B)(ii).
       2
         Section 1429 of Title 8 provides that a person seeking naturalization must prove, inter
alia, that he or she is a lawful permanent resident and that there is no pending removal
proceeding pursuant to a warrant for arrest. 8 U.S.C. § 1429. Section 1101(a)(22) defines the
term “national” as “a person owing permanent allegiance to a state.” 8 U.S.C. § 1101(a)(22).

                                                 3
her claim to being a U.S. national. Roberts also filed a pro se pleading–titled

Judicial Review after Denial of Application–which reiterated her request to review

her naturalization application and the detainer against her and cited 8 U.S.C.

§ 1421(c) as a jurisdictional basis for relief. Roberts asked the district court to

remove the detainer and order the Attorney General to grant her naturalization

application.

       The district court construed Roberts’ new filings as her amended complaint

and dismissed the amended complaint without prejudice for lack of subject matter

jurisdiction. The district court concluded that it lacked jurisdiction: (1) to review

the denial of her naturalization application because she had not exhausted

administrative remedies; or (2) to review the detainer against Roberts because she

had not alleged she was in immigration custody pursuant to the detainer. The

district court did not disturb its previous ruling denying Roberts’ request for a

declaration of nationality. Roberts filed this appeal.3

                                       II. DISCUSSION

A.     Naturalization Application



       3
        After filing her notice of appeal, Roberts filed a motion for reconsideration in the district
court. The district court construed it as a motion under Federal Rule of Civil Procedure 60(b)
and denied the motion. Roberts did not file a notice of appeal after this ruling. Thus, we do not
have jurisdiction to review the district court’s order denying the Rule 60(b) motion. See Fed. R.
App. P. 4(B)(ii).

                                                  4
       The Immigration and Nationality Act (“INA”) authorizes a person whose

application for naturalization is denied to seek review of such denial in the district

court, but only “after a hearing before an immigration officer under section 1447(a)

of this Title.” INA § 310(c), 8 U.S.C. § 1421(c); see also INA § 336, 8 U.S.C.

§ 1447 (outlining the procedures governing hearings on denials of applications for

naturalization). A “determination denying an application for

naturalization . . . shall not be subject to judicial review until the applicant has

exhausted those administrative remedies available to the applicant under section

336 of the Act.” 8 C.F.R. § 336.9(d).4

       Here, Roberts concedes that she has not challenged in a hearing before an

immigration officer the denial of her naturalization application, as required by the

INA. Therefore, the district court correctly concluded that it lacked subject matter

jurisdiction over Roberts’s challenge to the denial of her naturalization application.

B.     Detainer

       The DHS may issue detainers against aliens arrested for violating controlled

substance laws and, if the detainer is issued and the alien is not otherwise in

custody, the Attorney General is required expeditiously to take custody of the




       4
         We review de novo a district court’s dismissal of a complaint for lack of subject matter
jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).

                                                5
alien. See INA § 287(d), 8 U.S.C. § 1357(d).5 “Under certain circumstances,

challenges to detainers may . . . be brought under § 2241.” Orozco v. INS, 911

F.2d 539, 541 (11th Cir. 1990). However, “[t]he filing of [a] detainer, standing

alone, [does] not cause [the petitioner] to come within the custody of the [DHS]”

for purposes of § 2241 jurisdiction. Id. (affirming dismissal of alien’s § 2241

petition challenging immigration detainer where alien was incarcerated on state

charges); see also 28 U.S.C. § 2241(c) (requiring § 2241 petitioner to be “in

custody” unless it is necessary to bring him into court to testify or for trial).

       Here, although Roberts’s complaint alleged that DHS lodged a detainer

against her, it did not allege that Roberts was taken into DHS custody and that

removal proceedings had commenced. In fact, Roberts alleged that she had not

received a Notice to Appear and admitted in her filings that she is not in DHS

custody. Under Orozco, the district court properly dismissed without prejudice

Roberts’ § 2241 challenge to her immigration detainer.

C.     Nationality Claim

       Citing 8 U.S.C. § 1252(b)(5), Roberts’ initial complaint sought an order


       5
        “A detainer serves to advise another law enforcement agency that the [Department of
Homeland Security] seeks custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). “The detainer is a request
that such agency advise the Department, prior to release of the alien, in order for the Department
to arrange to assume custody, in situations when gaining immediate physical custody is either
impracticable or impossible.” Id.

                                                6
declaring her to be a “national” of the United States. The district court correctly

concluded that § 1252(b)(5) addresses immigration removal proceedings and did

not provide jurisdiction to grant Roberts relief.

       Section 1252 of Title 8 provides for judicial review of removal orders solely

by the Court of Appeals. See 8 U.S.C. § 1252(a)(1), (5). Section 1252(b)(5)

authorizes the Court of Appeals, in reviewing a final order of removal, to address a

petitioner’s nationality claim if there is no genuine issue of material fact. See 8

U.S.C. § 1252(b)(5)(A). However, if an issue of fact exists, the Court of Appeals

must transfer the proceeding to the district court for a determination “as if an action

had been brought in the district court” under 28 U.S.C. § 2201. 8 U.S.C.

§ 1252(b)(5)(B). Further, “[t]he petitioner may have such nationality claim

decided only as provided in this paragraph.” 8 U.S.C. § 1252(b)(5)(C).

       Here, Roberts has not raised her nationality claim within the context of

immigration proceedings, much less in a petition for review of a final order of

removal. Thus, § 1252(b)(5) does not provide the district court (or this Court) with

jurisdiction.

       In her amended complaint and on appeal, Roberts also cites 8 U.S.C. § 1429.

Section 1429 delineates the prerequisites for naturalization; it does not give the

district court jurisdiction to determine a person’s status as a U.S. national. See 8



                                           7
U.S.C. § 1429.

      The district court liberally construed Roberts’ complaint as a § 2241 petition

and concluded that it failed to state a nationality claim. However, for the same

reason the district court lacked jurisdiction to entertain Roberts’ § 2241 challenge

to her immigration detainer, the district court lacked jurisdiction to entertain a

nationality claim brought pursuant to § 2241.

      Additionally, because it is clear on the face of Roberts’ complaint that

immigration proceedings had not yet begun, the district court did not err in

dismissing without prejudice any declaratory judgment action pursuant to 28

U.S.C. § 2201. See McGrath v. Kristensen, 340 U.S. 162, 168-69 & n.10, 71 S. Ct.

224, 228-29 & n.10 (1950) (stating that “[w]here an official’s authority to act

depends upon the status of the person affected, in this case eligibility for

citizenship, that status, when in dispute, may be determined by a declaratory

judgment proceeding after the exhaustion of administrative remedies” and

concluding that the plaintiff could bring a § 2201 declaratory judgment action to

determine citizenship status because the Attorney General’s refusal to suspend

deportation was a final administrative decision).

      AFFIRMED.




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