06-4069-ag
Poole v. Mukasey



                        UNITED STATES COURT OF APPEALS

                            FOR THE SECOND CIRCUIT

                               August Term 2007

Submitted: February 5, 2008                  Decided: March 27, 2008

Petition for rehearing submitted: May 12, 2008
Petition for rehearing decided: May 20, 2008

                            Docket No. 06-4069-ag

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RODWELL ARLIE ANTHONY POOLE,
          Petitioner,

                   v.

MICHAEL B. MUKASEY, Attorney General
of the United States, DEPARTMENT OF
HOMELAND SECURITY, and IMMIGRATION
AND CUSTOMS ENFORCEMENT (ICE),
          Respondents.
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Before: NEWMAN, WINTER, and PARKER, Circuit Judges.

        Petition for rehearing of March 27, 2008, decision remanding

derivative citizenship claim to Board of Immigration Appeals.

        Petition denied.

                            Gregory G. Katsas, Acting Assistant Attorney
                              General, M. Jocelyn Lopez Wright, Assistant
                              Director,   Carol   Federighi,   Office   of
                              Immigration Litigation, Civil Division, U.S.
                              Department of Justice, Washington, D.C.,
                              submitted a brief for Respondents.
JON O. NEWMAN, Circuit Judge.

      The Government has petitioned for rehearing of our March 27,

2008, decision remanding to the Board of Immigration Appeals (“BIA”)

the claim of Rodwell Poole for derivative citizenship. See Poole v.

Mukasey, 522 F.3d 259 (2d Cir. 2008).               The Government contends that we

lacked authority to remand and that we erred in affording the BIA an

opportunity to determine whether it would extend relief to Poole with

respect to his citizenship claim.

      Poole had filed a petition for review of a removal order based on

his    conviction        of     an     aggravated         felony,       see      8     U.S.C.

§ 1227(a)(2)(A)(iii), and a firearms offense, see id. § 1227(a)(2)(C).

He claimed derivative citizenship through his naturalized mother and

also claimed that he was entitled to be considered a national of the

United States on the theory that he would have derived citizenship

through   his    mother       but    for   the    delay     by    the   Immigration         and

Naturalization Service in processing her citizenship application. The

BIA   dismissed     as    untimely         his    administrative        appeal       from    an

Immigration Judge’s decision ordering removal and did not consider

Poole’s claim for derivative citizenship.

      1. With respect to our remand authority, the Government relies on

8   U.S.C.   §   1252(b)(5),         governing      court    of    appeals       review     of

nationality claims.       This provision specifies that, in the absence of

factual disputes, “the court shall decide the nationality claim.” Id.

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§ 1252(b)(5)(A).1        In the Government’s view, the authority to “decide”

precludes a remand for further BIA consideration.                   We disagree.

     We believe the power to decide the merits of a claim for

citizenship,        initially    presented       to    an     administrative    agency,

necessarily encompasses the power to remand to that agency.                            Cf.

Rhodes-Bradford v. Keisler, 507 F.3d 77, 81 (2d Cir. 2007) (court has

“inherent authority to remand the case to fix the defects we have

identified”      where    a   merits    decision      would    deprive   the   court    of

jurisdiction).         Suppose, for example, that the BIA had rendered an

opinion that was ambiguous as to whether it had accepted or rejected

a claim for citizenship.         The need to remand for agency clarification

would be obvious.        The need is equally great in the pending case where

the BIA has failed to consider the citizenship claim.

     Courts of appeals regularly remand for further consideration BIA

decisions     not    involving    citizenship         claims   despite   the   apparent

absence     of   any    statutory      provision      explicitly    authorizing    such

remands.2    With respect to review in such cases, “the court of appeals



     1
         In the event of a factual dispute, the court of appeals is to

transfer the proceeding to the district court in which the claimant

resides. See 8 U.S.C. § 1252(b)(5)(B).
     2
         The broad remand authority set forth in 28 U.S.C. § 2106, which

is located in chapter 133 of Title 28, is inapplicable because review

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shall decide the petition only on the administrative record.” 8 U.S.C.

§ 1252(b)(4)(A) (emphasis added).   No court, as far as we are aware,

has construed the authority to “decide” such cases to preclude a

remand to the BIA.

     To remand for consideration of a claim left unresolved by the BIA

is not a failure to abide by the statutory obligation of a court of

appeals to “decide” a nationality claim, as required by section

1252(b)(5)(A).   A remand simply defers the decision until the matter

returns to the court, if further review is sought, after appropriate

agency consideration.   Normally, the Government urges us to insist

that the BIA have the initial opportunity to construe the statutes it

administers. See Immigration and Naturalization Service v. Ventura,

537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should

remand a case to an agency for decision of a matter that statutes

place primarily in agency hands.”).

     2. With respect to the merits of Poole’s citizenship claim, the

Government contends that his claim fails because his mother did not

receive her citizenship prior to his eighteenth birthday. See 8 U.S.C.

§ 1432(a) (repealed, but applicable to Poole’s claim, see Ashton v.




of final orders of removal is governed “only by chapter 158 of Title

28, except as provided in subsection (b) of this section [specifying

requirements for review of removal orders].” 8 U.S.C. § 1252(a)(1).

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Gonzales, 431 F.3d 95, 97 (2d Cir. 2005)).   In our prior decision, we

recognized that Poole’s claim “appears to fail to satisfy the timing

requirement of subsection 1432(a)(4).” See Poole, 522 F.3d at 265.

Nevertheless, we remanded so that the BIA could consider whether the

delay in processing the mother’s application, submitted when Poole was

sixteen, “might be some basis for relieving Poole” of the timing

requirement, id. (emphasis added), and could determine “what relief,

if any,” Poole might receive, id. at 266 (emphasis added).   We see no

reason not to obtain the BIA’s views, which the Government regularly

urges us to respect in most cases.

     The petition for rehearing is denied.




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