                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4624




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"Garcia v. Atty Gen USA" (2008). 2008 Decisions. Paper 1389.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1389


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DLD-122                                            NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-4624
                                       ___________

                               RAUL DE JESUS GARCIA,
                                              Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                                Agency No. A90 569 291
                       ____________________________________

           Submitted on a Motion to Dismiss or for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

       Before: BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.

                             (Opinion filed: March 25, 2008)
                                       _________

                                         OPINION
                                        _________

PER CURIAM

       Raul de Jesus Garcia, a citizen of the Dominican Republic, seeks review of a final

order issued by the Board of Immigration Appeals (“BIA”). The Government has filed a

motion to dismiss for lack of jurisdiction, or, in the alternative, for summary affirmance.

For the reasons that follow, we will grant the Government’s motion to the extent it

requests summary affirmance, and will deny the petition for review.
       Garcia, who adjusted his status to that of lawful permanent resident in 2003, was

convicted in 2005 of the offense of distribution, conspiracy to distribute and possession

with intent to distribute MDMA (ecstacy) in violation of 21 U.S.C. §§ 812, 841(a)(1) and

843(b)(1)(C) and 846. Garcia was served with a Notice to Appear charging him with

being removable as an aggravated felon. An Immigration Judge (IJ) found Garcia

removable as charged, and found that the only relief he would potentially be eligible for

would be protection under the United Nations Convention Against Torture. Garcia

conceded that he was not likely to be tortured upon his return to the Dominican Republic;

thus he was not eligible for any relief from removal.

       Garcia also argued, however, that he was a “national,” and not an alien, because he

had applied for United States citizenship. The IJ found that Garcia was not a national,

and the BIA agreed, holding in its decision that United States citizenship “may be

acquired only through birth or naturalization. It cannot be acquired solely by applying for

naturalization.” 1 Garcia filed a timely petition for review.

       The Government argues that we lack jurisdiction over the petition because Garcia

is an aggravated felon. Although 8 U.S.C. § 1252(a)(2)(C) provides that no court has

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

having committed an “aggravated felony” as defined by statute, the REAL ID Act

provides that nothing in § 1252(a)(2)(C) “which eliminates judicial review, shall be



   1
    Garcia mistakenly states in his petition for review that the BIA affirmed without
opinion.

                                              2
construed as precluding review of constitutional claims or questions of law raised upon

petition for review filed with an appropriate court of appeals in accordance with this

section.” 8 U.S.C. § 1252(a)(2)(D). We thus have jurisdiction to consider Garcia’s legal

claim that he is a national. Under 8 U.S.C. § 1252(b)(5)(A), we have jurisdiction to

review a claim of nationality if there is no genuine issue of material fact with respect to

that claim. The parties do not dispute the underlying facts of the case. We exercise

plenary review over Garcia’s claims. Jordon v. Attorney General, 424 F.3d 320, 328 (3d

Cir. 2005).

       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 v. Ashcroft,

350 F.3d 307, 310 (3d Cir. 2003). Garcia’s statement that he applied for naturalization

does not render him a citizen or national of the United States. Id.2

       For the above reasons, we will deny the petition for review.



   2
     In his petition for review, Garcia also states that the evidence concerning his
conviction “offered by the Government does not rise to the level of clear and convincing
evidence required to sustain the charge of removability as set forth in the ‘Notice to
Appear.’” He gives no further explanation regarding why he believes the evidence was
insufficient, and the BIA explicitly found that evidence of his conviction was established
by clear and convincing evidence. Further, according to the IJ’s opinion, Garcia
conceded the charges in the Notice to Appear. We find no basis to overturn the BIA’s
finding that Garcia was convicted of an aggravated felony.

                                              3
