                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1411




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                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-1411
                                ________________

                         CLEMENT JEAN BELIZAIRE,

                                                       Petitioner,

                                         v.

      ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA;
     COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION
           SERVICE, James Ziegler; RONALD T. BONAFORTE

                 _______________________________________

                    On Petition for Review of a Decision of the
                         Board of Immigration Appeals
                            (Agency No. A27 477 236)

           Initially Docketed as an Appeal from D.N.J. No. 04-cv-04568
                  Prior to the Enactment of the Real ID Act of 2005
                   _______________________________________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                              September 14, 2005

           Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                            (Filed October 31, 2005 )
                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    Clement Jean Belizaire seeks review of a final order of removal issued by the
Board of Immigration Appeals (BIA). For the following reasons, we will deny the

petition.1

       Belizaire, a native of Haiti, first entered the United States with his family as a child

in 1970. His father became a naturalized United States citizen in 1974. Belizaire

returned to Haiti in 1979, then re-entered the United States as a visitor in 1985 and

became a lawful permanent resident in 1986. He later applied for naturalization but never

completed the process.

       In 1994, Belizaire was convicted in New York for attempted possession of a

handgun. He was again convicted in New York for attempted possession of a revolver in

2002. Based on these two convictions, the Government charged Belizaire with being

removable for having been convicted of firearms offenses and crimes involving moral

turpitude. In removal proceedings, Belizaire asserted derivative citizenship through his

father. He also asserted that he is a national of the United States based on his

naturalization application and registration for the Selective Service. An immigration

   1
       Belizaire initiated these proceedings by filing a habeas corpus petition under 28
U.S.C. § 2241 in the Eastern District of New York. That court transferred the matter to
the District of New Jersey, the judicial district in which Belizaire was in custody at the
time he filed the petition. Following the District Court’s denial of habeas corpus relief,
Belizaire filed a timely notice of appeal to this Court. While his appeal was pending, the
REAL ID Act of 2005 took effect on May 11, 2005. In light of the REAL ID Act, we
have determined that such pending appeals are converted to petitions for review under 8
U.S.C. § 1252. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005). Because
the matter is fully briefed and ripe for disposition, we decline to transfer it to the Second
Circuit, the judicial circuit in which the immigration judge completed the proceedings.
See id. at 446 n.5. Accordingly, we will deny the Government’s motion to transfer this
matter to the Second Circuit.

                                              2
judge (IJ) rejected Belizaire’s claims of citizenship and nationality, found him removable,

denied his applications for discretionary relief, and ordered him removed to Haiti. The

BIA, by single member, affirmed without opinion.

       Belizaire then challenged the final order of removal by filing a habeas corpus

petition in the District Court. The District Court denied Belizaire’s habeas petition

without conducting a hearing. Belizaire filed a timely appeal, which has been converted

into a petition for review, as described previously.2

       We address first Belizaire’s assertion that he obtained derivative citizenship

through his father. Under the current Child Citizenship Act (CCA), a lawful permanent

resident child born outside of the United States automatically becomes a citizen when:

(1) at least one parent of the child is a citizen, whether by birth or naturalization; (2) the

child is under the age of eighteen; and (3) the child resides in the United States in the

custody of the citizen parent. See 8 U.S.C. § 1431(a) (effective Feb. 27, 2001); Bagot v.

Ashcroft, 398 F.3d 252, 257 n.3 (3d Cir. 2005). The current CCA, however, does not

apply retroactively to Belizaire’s case. See id. The law in effect at all relevant times

required that both parents (if living and legally married) be naturalized. Id. It is

undisputed that Belizaire’s parents were living and married at all relevant times, and that




   2
       By order entered March 22, 2005, we denied Belizaire’s motion for a stay of
removal. After being removed to Haiti in May 2005, he filed a motion to be returned to
the United States. For the reasons that follow, we find Belizaire’s arguments lacking in
merit, and thus deny his motion to be returned to the United States.

                                               3
his mother was never naturalized. Accordingly, he did not derive citizenship from his

naturalized father.

       We address next Belizaire’s claim that he is a national of the United States, the

issue to which he devotes most of his brief. 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). Because Belizaire has not

completed the naturalization process, he is neither a citizen nor a national, even though he

applied for naturalization and registered for the Selective Service. See id. He is instead

an alien who is removable for having committed enumerated offenses.3

       Finally, we address Belizaire’s argument that he was wrongly precluded from

applying for relief under the Convention Against Torture (CAT). According to the

Government, we are without jurisdiction to review Belizaire’s CAT claim because he did

not present it to the BIA on appeal. We have reviewed Belizaire’s brief on appeal to the

BIA, which includes a passing reference to the CAT. (Supp. App. at 27). The brief

includes no argument regarding Belizaire’s entitlement to apply for CAT relief and makes

   3
       We are aware of Belizaire’s repeated requests for us to transfer his nationality
claim to the Second Circuit, a request we decline for reasons expressed previously. To
the extent that Belizaire believes the Second Circuit will view his nationality claim more
favorably than we, he is mistaken. Recently the Second Circuit adopted a view of
nationality claims identical to the one we expressed in Salim. See Marquez-Almanzar v.
INS, 418 F.3d 210, 218-19 (2d Cir. 2005).

                                             4
no mention of any likelihood of being tortured if returned to Haiti. Under these

circumstances, we agree with the Government that Belizaire did not fairly present a CAT

claim to the BIA. See Bonhometre v. Gonzalez, 414 F.3d 442, 447 (3d Cir. 2005)

(requiring alien to raise an issue to BIA in a manner that allows it to correct an error

before seeking judicial review). Accordingly, we are without jurisdiction to consider

whether he was wrongly precluded from applying for CAT relief. See 8 U.S.C. §

1252(d)(1); Bonhometre, 414 F.3d at 447.

       For these reasons, we will deny Belizaire’s petition for review. We also deny the

Government’s motion to transfer this matter to the Second Circuit, as explained

previously. Because we find Belizaire’s arguments unavailing, we deny his motion to be

returned to the United States. In light of our disposition, we deny Belizaire’s motion for

appointment of counsel as moot.




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