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


12-12-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5094




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-5094
                                    ____________

                                REUBEN SIMMONS
                               a/k/a MIKE SIMMONS,

                                             Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                                    ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A36 813 397)
                        Immigration Judge Walter A. Durling
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 11, 2006

                  Before: FISHER and CHAGARES, Circuit Judges,
                        and BUCKWALTER,* District Judge.

                              (Filed: December 12, 2006)
                                     ____________

                              OPINION OF THE COURT
                                   ____________



      *
        The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

          Simmons appeals from a final order of the Board of Immigration Appeals (“BIA”)

finding him removable pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) for

committing an aggravated felony and controlled substance offense. For the reasons set

forth below, we will affirm.

                                                I.

          Because we write only for the parties, we will forgo a lengthy recitation of the

legal and factual background to this case. Reuben Mohan Cyrus Simmons is a citizen of

St. Vincent and the Grenadines who was admitted to the United States in September

1983, as a lawful permanent resident. Following his conviction for violation of section

220.39 of New York Penal Law, sale of a controlled substance, the Department of

Homeland Security (“DHS”) began removal proceedings against Simmons. The

proceedings charged him with removability under §§ 237(a)(2)(A)(iii) and (B)(i) of the

Immigration and Nationality Act (“INA”) for being convicted of an aggravated felony

and for a crime relating to a controlled substance. 8 U.S.C. §§ 1227(a)(2)(A)(iii) and

(B)(i).

          In June 2005, Simmons requested a certificate of citizenship from DHS based on

the prior naturalization of his mother. The DHS District Director denied Simmons’s

request. Simmons properly appealed the District Director’s decision to the

Administrative Appeals Unit in Washington, D.C. That appeal remains pending.



                                                2
       Following the denial of his request, Simmons appeared before an Immigration

Judge (“IJ”) and denied the charges of removability and the allegation that he was not a

citizen of the United States. He argued that he had derived citizenship through the

naturalization of his mother. Following a hearing, the IJ found that Simmons was

removable as charged and that he was not a citizen of the United States because, while his

mother had naturalized when he was 13, his father had not naturalized until after his 18th

birthday. The BIA affirmed the IJ’s decision, finding that Simmons could not establish

derivative citizenship because his parents had never legally separated and Simmons’s

father had failed to naturalize before Simmons’s 18th birthday.

       Simmons filed this timely appeal and filed an emergency motion for a stay of

removal pending the outcome of this appeal and the appeal of his citizenship. Simmons

was removed to St. Vincent and the Grenadines on December 17, 2005, while his motion

was pending. On December 22, 2005, we granted a motion for a stay of removal pending

the outcome of this appeal.

                                            II.

       Before we reach the merits of Simmons’s arguments, we must satisfy ourselves

that we have jurisdiction. Pursuant to § 242(a)(2)(C) of the REAL ID Act, we have no

jurisdiction to review a final order of removal against an alien who is removable for

having committed an aggravated felony or drug offense. 8 U.S.C. § 1252(a)(2)(C).

Therefore, we cannot consider any challenge Simmons would bring to his removability

under these sections. However, we retain jurisdiction to consider Simmons’s claim that

                                             3
he is a derivative citizen of the United States who is not subject to removal. 8 U.S.C.

§ 1252(b)(5)(A).1 Further, pursuant to the REAL ID Act, we retain jurisdiction over

“constitutional questions or questions of law.” 8 U.S.C. § 1252(a)(2)(D). While

Simmons has already been removed, his removal does not moot the case before us. Bagot

v. Ashcroft, 398 F.3d 252, 255 (3d Cir. 2005).

       On appeal, Simmons does not argue that he has been convicted of a removable

offense under the INA, only that he is a United States citizen and, therefore, not subject to

removal. Simmons is mistaken. While it is undisputed that both of Simmons’s parents

are now naturalized citizens of the United States, Simmons does not enjoy derivative

citizenship from them as his father failed to naturalize before Simmons’s 18th birthday.

Former § 321(a) of the INA, which was in force at the time Simmons would have gained

derivative citizenship, provides in part:

       A child born outside the United States of alien parents . . . becomes a citizen
       of the United States upon the fulfillment of the following conditions:
       (1)    The naturalization of both parents; 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 . . . .


       1
        8 U.S.C. § 1252(b)(5)(A) states: “If the petitioner claims to be a national of the
United States and the court of appeals finds from the pleadings and affidavits that no
genuine issue of material fact about the petitioner’s claim is presented, the court shall
decide the nationality claim.”

                                             4
8 U.S.C. § 1432(a) (1999) (repealed).2

       Simmons bore the burden of proving citizenship. Bagot, 398 F.3d at 256; 8 C.F.R.

§ 341.2(c). He could not satisfy that burden as the evidence he presented to the IJ and

BIA only evidenced that his mother had naturalized before his 18th birthday. His father

naturalized after his 18th birthday, and there was no evidence that his parents had ever

been either legally separated or divorced. Therefore he did not meet the statutory

requirements under the previous version of 8 U.S.C. § 1432.

       Simmons’s equitable estoppel claim must also fail. Simmons claims that at the

time his mother was naturalized, the immigration officer interviewing her instructed that

Simmons, her son, would become a citizen. Based on this statement from the

immigration officer, Simmons claims that he believed and acted as though he was a

citizen. In order to prove an equitable estoppel claim against the government, an alien

must prove (1) a misrepresentation by the government, (2) reasonable reliance upon that

misrepresentation, (3) a resulting detriment, and (4) affirmative government misconduct.

Dipeppe v. Quarantillo, 337 F.3d 326, 335 (3d Cir. 2003). There is no evidence on the

record, other than the statement of Simmons’s counsel, that the immigration officer told

his mother that he would become a citizen. Neither Simmons nor his mother submitted an

affidavit to such effect. Further, even if Simmons could prove that the immigration



       2
        On October 30, 2000, Congress repealed § 1432 and replaced it by enacting the
Child Citizenship Act of 2000, Pub. L. No. 106-395, which allows a child to gain
derivative citizenship when either one of his parents is naturalized.

                                             5
officer made such a statement, the official’s mere misstatement is insufficient to meet the

high threshold that government misconduct must reach to satisfy an equitable estoppel

claim. See, e.g., Fredericks v. C.I.R., 126 F.3d 433, 440 (3d Cir. 1997). A mere

erroneous statement by a government official is an insufficient basis for an equitable

estoppel claim.

       As his last point of appeal, Simmons claims that his due process rights were

violated when he was removed while his motion to stay removal was pending before this

Court. We exercise plenary review over such claims. Singh v. Gonzales, 432 F.3d 533,

541 (3d Cir. 2006). In order to prevail on a due process claim, an alien must demonstrate

substantial prejudice, i.e., that a different outcome was possible. Id. at 541 n.10 (citing

United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002)). Even if Simmons

could prove that he was denied a “full and fair hearing”3 or removed illegally while his

motion for a stay of removal was pending,4 he cannot prove that a different outcome was

possible. Simmons has pointed to nothing suggesting that had he been given a more

thorough hearing before the IJ or BIA he could have produced sufficient evidence to


       3
        Simmons was not denied a “full and fair hearing” as he claims. Simmons claims
that the IJ and BIA engaged in only a cursory review of the record. However, the record
before us indicates that Simmons was given a full hearing with an attorney and was
offered a sufficient opportunity to present whatever evidence he could as to his equitable
estoppel claim.
       4
       We note only that § 242(b)(3)(B) of the INA specifically provides that a final
removal order is enforceable unless a stay of removal is granted. Because Simmons
cannot prove prejudice, we need not comment on whether the DHS must refrain from
removing an alien while his motion to stay removal is pending.

                                              6
prove his citizenship. Further, Simmons would have ultimately been removed regardless

of any temporary stay of removal. Because the outcome of his hearing would not have

changed and because he can still prosecute his appeal of his citizenship status from

abroad, he has suffered no prejudice.

       We will affirm the decision of the BIA.




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