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


8-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4759




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"Fortune v. Atty Gen USA" (2006). 2006 Decisions. Paper 590.
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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 05-4759
                                ________________

                               KEITH FORTUNE,

                                                      Petitioner

                                         v.

                        ATTORNEY GENERAL OF THE
                             UNITED STATES,

                                                 Respondent
                    ____________________________________

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals
                            Agency No. A31-291-288
                   _____________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                                August 15, 2006

       BEFORE: BARRY, CHAGARES and COWEN, CIRCUIT JUDGES

                             (Filed: August 15, 2006)

                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    Keith Fortune, a citizen of Trinidad and Tobago, seeks review of a final order
issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we

will deny the petition.

       Fortune was paroled into Newark, New Jersey, on June 10, 2001. Subsequently, in

April 2003, a jury in the United States District Court for the District of New Jersey

convicted him of conspiracy to import cocaine in violation of 21 U.S.C. § 963, and of

importation of cocaine in violation of 21 U.S.C. § 952(a), § 960(b)(1)(c), and 18 U.S.C.

§ 2. Fortune served a term of 51 months’ imprisonment and is currently on probation for

five years.

       In January 2005, the Department of Homeland Security charged Fortune with

being removable pursuant to 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and (a)(2)(C) for having

been convicted of a controlled substance crime and for being a trafficker in illicit

controlled substances. The Immigration Judge (“IJ”) continued the removal proceedings

several times at Fortune’s request in order that he could attempt to secure an attorney. At

a hearing in April 2005, Fortune, through counsel, admitted the charges except the charge

that he is not a citizen or national of the United States. He asserted that he qualifies as a

national of the United States. In support, Fortune stated that he had filed an application

for naturalization in 1988, had registered for the selective service that same year, and had

voted several times as a resident of New York.1 He was unable to produce any

application for naturalization, but he did submit proof that he registered for selective


   1
    Fortune claims that he originally entered the United States with his mother, stepfather
and siblings in 1972, and that he obtained Legal Permanent Resident status.
                                              2
service and that he had previously voted in New York elections. The IJ disagreed with

Fortune’s argument, relying upon our decision in Salim v. Ashcroft, 350 F.3d 307 (3d

Cir. 2003), and BIA precedent. On appeal, the BIA affirmed the IJ’s decision. Fortune

timely petitioned this Court for review.2

       There is no reason for us to disturb the BIA’s order in this case as this issue is

well-settled. 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.” INA

§ 101(a)(22) [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, 350 F.3d at

310. Fortune’s statement that he applied for naturalization, even coupled with his

registering for selective service and proof that he voted for a few years in New York, does

not render him a citizen or national of the United States. See id; Marquez- Almanzar v.

INS, 418 F.3d 210, 216-18 (2d Cir. 2005).

       Finally, in his brief, Fortune argues that his convictions do not qualify as

aggravated felonies.3 Because Fortune never presented this claim to the IJ, the claim is

   2
    The BIA originally issued its order on September 26, 2005, but on October 28, 2005,
the BIA vacated it and issued a new order (incorporating the text of the original order) to
correct a defect in service. Fortune had filed his appeal of the September 26 order before
the BIA reissued its order. However, by order of the Clerk of this Court entered on
November 30, 2005, Fortune’s petition for review was amended to include the reissued
order of the BIA.
   3
     Although Fortune’s point is not entirely clear, he is possibly arguing that he is
entitled to cancellation of removal pursuant to INA § 240A. Assuming, arguendo, that
Fortune is correct that he obtained Legal Permanent Resident status, the Attorney General
may cancel removal if the alien: (1) has been a lawful permanent resident at least five
                                              3
deemed unexhausted. Absent exhaustion of available administrative remedies, we are

without jurisdiction to consider the claim. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)].

       For these reasons, and after careful consideration of the record and the parties’

contentions, we will deny Fortune’s petition for review.




years; (2) has resided continuously in the U.S. for seven years; and (3) has not been
convicted of any aggravated felony. 8 U.S.C. § 1229b(a).
                                             4
