     Case: 18-40175    Document: 00514955516      Page: 1   Date Filed: 05/14/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                  No. 18-40175
                                                                         FILED
                                                                     May 14, 2019
                                                                    Lyle W. Cayce
JUAN GERARDO SANDOVAL LOPEZ,                                             Clerk

             Plaintiff - Appellant

v.

MIKE POMPEO, SECRETARY, U.S. DEPARTMENT OF STATE; UNITED
STATES OF AMERICA,

             Defendants - Appellees




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before CLEMENT, OWEN, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      This is the second time that Juan Gerardo Sandoval Lopez has filed suit
seeking a judicial declaration of U.S. citizenship under 8 U.S.C. § 1503(a). The
first time he sued, the district court concluded that the suit was jurisdictionally
barred under the terms of 8 U.S.C. § 1503(a)—namely, because his claim of
citizenship had previously been raised, and rejected, in two separate removal
proceedings nearly two decades earlier. So when the same suit appeared before
the same court a second time, the case was dismissed on res judicata grounds.
But that was erroneous. Because in the appeal from the first suit, we affirmed,
but on an entirely different ground—namely, because Lopez was not “within
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                                  No. 18-40175
the United States” at the time of suit. That jurisdictional failure has been
cured in this second suit. Accordingly, we reverse the dismissal of suit on res
judicata grounds, and remand for further proceedings.
                                        I.
      Lopez’s father (Carlos Sandoval) obtained a United States passport in
1991 based on a false Texas birth certificate. In 1994, he admitted to federal
immigration authorities, in the presence of his attorney, that in fact he was
born in Mexico, not Texas—and that he was not a U.S. citizen. Based on those
admissions, federal immigration officials commenced removal proceedings
against Lopez, his father, and the rest of their family.
      During the removal proceedings, Lopez’s father recanted his prior
admission. He submitted a motion claiming citizenship for himself, as well as
derivative legal status for his entire family, including Lopez, to remain in the
United States.
      These removal proceedings concluded in 1997. The immigration court
found that Lopez’s father had used a false birth certificate to obtain a U.S.
passport for himself, as well as legal status in the United States for his family.
Accordingly, the immigration court issued an order of removal against the
entire family, including Lopez. The order was issued in absentia, because the
family had returned to Mexico in the meantime.
      The district court summarized the 1997 removal proceedings in its
decision in Lopez’s first § 1503(a) suit, as follows: “On September 23, 1997,
deportation proceedings were held to determine Sandoval’s and Lopez’s
citizenship; Sandoval and Lopez failed to appear. At the proceedings, the
Court ruled that Sandoval and Lopez were not United States citizens; instead,




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                                       No. 18-40175
the Court concluded both were native citizens of Mexico.”                      Sandoval v.
Tillerson, 2017 WL 7794606, *1 (S.D. Tex. April 27, 2017). 1
       In 1998, the following year, Lopez gained re-entry into the United
States—this time, by presenting his own false Texas birth certificate.
Immigration officials subsequently discovered that that birth certificate, too,
was false. Accordingly, the immigration court issued an expedited order of
removal against Lopez. See Sandoval-Lopez v. Tillerson, 713 F. App’x 255, 257
(5th Cir. 2017) (per curiam) (“In 1998, Lopez presented a false United States
birth certificate at the United States border and the INS ordered him to be
removed under an Expedited Order of Removal.”).
       Eighteen years later, in 2016, Lopez was back at it again. This time, he
applied for a U.S. passport, once again claiming derivative citizenship based
upon his father’s U.S. citizenship.               The State Department denied his
application.
       Lopez brought suit, inter alia, under 8 U.S.C. § 1503(a), challenging the
denial of his passport by seeking a judicial declaration of citizenship. The
district court concluded that it lacked jurisdiction under 8 U.S.C. § 1503(a),
because his citizenship had already been resolved in not one, but two prior
removal proceedings—expressly referring to both the 1997 and 1998 removal
orders against Lopez.
       As the district court explained:



       1  Lopez now disputes the district court’s account. Specifically, he argues—apparently
for the first time—that his citizenship was never raised in his 1997 removal proceedings, and
that in fact, his father only sought to adjust Lopez’s status to lawful permanent residency.
The government responds that, even if true, Lopez is collaterally estopped from making this
claim (and that, in any event, Lopez’s citizenship was certainly raised, and rejected, in the
1998 removal proceedings). We need not, and do not, resolve this dispute in order to reverse
the district court’s dismissal of his suit on res judicata grounds. On remand, Lopez is welcome
to raise this issue, and the government is welcome to raise any arguments it may have in
response.
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                                  No. 18-40175
      In 1997 and 1998, an Immigration Court ruled Plaintiffs to be
      Mexican nationals and ordered removal. A challenge to DOS’s
      determination that Plaintiffs are not United States citizens is, in
      essence, a challenge to the Immigration Court’s removal order of
      each respective Plaintiff. The proper route for Plaintiffs to
      challenge said removal orders is to follow the detailed procedures
      laid out by Congress in 8 U.S.C. § 1252. . . . Plaintiffs attempt to
      circumvent § 1252’s statutory appellate requirements by asserting
      an 8 U.S.C. § 1503(a) claim. However, ‘a party may not use
      § 1503(a) to frustrate Congress’s effort to channel all appeals from
      removal proceedings—including those in which the alien raised
      claims of nationality—through 8 U.S.C. § 1252.’

Sandoval, 2017 WL 7794606 at *3–4 (citation omitted) (quoting Ortega v.
Holder, 592 F.3d 738, 743–44 (7th Cir. 2010)).
      On appeal, we affirmed, but on a different ground—that only persons
“within the United States” may request a judicial declaration of citizenship
under 8 U.S.C. § 1503(a). At the time of suit, Lopez was at a port of entry in
Brownsville, Texas.    We therefore concluded that he was not “within the
United States” for purposes of 8 U.S.C. § 1503(a). See Sandoval-Lopez, 713 F.
App’x at 258.
      Months later, Lopez returned to the United States and brought this
second suit under 8 U.S.C. § 1503(a), before the same district court where he
filed his first § 1503(a) suit. The government moved to dismiss, inter alia, on
the ground that the district court lacked jurisdiction under 8 U.S.C. § 1503(a),
for the same reasons that it did in the first suit. Lopez did not respond to the
government’s motion to dismiss.
      The district court held that it was bound to dismiss for lack of jurisdiction
on grounds of res judicata. Lopez now appeals again.




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                                    No. 18-40175
                                          II.
        When this court affirms a judgment of the district court, but on different
grounds than those adopted by the district court, it is the decision of this court,
not the district court, that has preclusive effect:
        [I]f an appeal is taken preclusion should attach to every ground
        that is in fact reviewed and affirmed by an appellate court. . . . As
        to matters passed over by the appellate court, however, preclusion
        is not available on the basis of the trial-court decision. . . . [O]nce
        an appellate court has affirmed on one ground and passed over
        another, preclusion does not attach to the ground omitted from its
        decision.

18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE (JURISDICTION) [hereinafter WRIGHT & MILLER]
§ 4421 (3d ed. 1998). See also, e.g., Dow Chem. v. EPA, 832 F.2d 319, 323 (5th
Cir. 1987) (“Dow maintains that it cannot be bound by the district court’s
decision because this Court affirmed on other grounds. We agree. ‘The federal
decisions agree that once an appellate court has affirmed on one ground and
passed over another, preclusion does not attach to the ground omitted from its
decision.’ We decline to depart from this accepted rule.”) (quoting the 1981
edition of 18 WRIGHT & MILLER § 4421).
        This conclusion is fatal to the res judicata analysis employed by the
district court in this case. For when this court dismisses a case due to failure
of one particular jurisdictional element, and the party later cures that
jurisdictional defect and brings a new suit, res judicata does not bar the second
suit:
        There is little mystery about the res judicata effects of a judgment
        that dismisses an action for lack of subject-matter or personal
        jurisdiction or for improper venue. . . . [A] dismissal for lack of
        jurisdiction or improper venue does not operate as an adjudication
        on the merits. . . . [T]he dismissal permits a second action on the
        same claim that corrects the deficiency found in the first action.
        The judgment remains effective to preclude relitigation of the
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                                       No. 18-40175
       precise issue of jurisdiction or venue that led to the initial
       dismissal.

18 WRIGHT & MILLER § 4436 (emphasis added). 2
       That is precisely what occurred here. Lopez has cured the jurisdictional
defect identified by this court in the first suit, by bringing this second suit while
he was “within the United States,” as required by 8 U.S.C. § 1503(a).
       Accordingly, we reverse and remand for further proceedings.




       2 Our court invoked this rule in Baris v. Sulpicio Lines, Inc., 74 F.3d 567 (5th Cir.),
vacated on reh’g en banc, 101 F.3d 367 (5th Cir. 1996). The panel opinion in that case stated:
“These dismissals are not considered adjudications on the merits and ordinarily do not, and
should not, preclude a party from later litigating the same claim, provided that the specific
defect has been corrected.” Id. at 571 (citing 1981 edition of 18 WRIGHT & MILLER § 4436).
The panel opinion was subsequently vacated on rehearing en banc. The en banc court
ultimately reached the same judgment as the panel, by an equally divided vote and without
opinion.
        We subsequently articulated the same rule, in dicta, in Blanchard 1986, Ltd. v. Park
Plantation, LLC, 553 F.3d 405 (5th Cir. 2008). See id. at 409 n.15 (“Dismissals for lack of
jurisdiction ‘are not considered adjudications on the merits and ordinarily do not, and should
not, preclude a party from later litigating the same claim, provided that the specific defect
has been corrected.’”) (quoting Baris, 74 F.3d at 571 (citing 1981 edition of 18 WRIGHT &
MILLER § 4436)).
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                                   No. 18-40175
JAMES C. HO, Circuit Judge, concurring:

      United States citizenship is one of the greatest privileges this world has
ever known. So as with anything of great value, the privilege of citizenship
must be vigorously protected against fraud and deceit.
      Take this case. Juan Gerardo Sandoval Lopez brings this suit under 8
U.S.C. § 1503(a), seeking a judicial declaration that he is a U.S. citizen. But
federal officials have previously determined—not once, but on three separate
occasions, including two different removal proceedings in 1997 and 1998—that
any suggestion that Lopez is a U.S. citizen is based on a lie. They concluded
that both Lopez and his father submitted false Texas birth certificates in a
fraudulent effort to claim that Lopez is a U.S. citizen; that in fact, both men
were born in Mexico, not Texas; that neither have otherwise obtained U.S.
citizenship; and that both are subject to removal. Those proceedings were
resolved over two decades ago. And Lopez never sought judicial review of his
removal orders at that time (as he could have done under 8 U.S.C. § 1252).
      Considering the history of these proceedings, the district court’s
summary dismissal of Lopez’s second § 1503(a) suit is understandable. Swift
action against citizenship fraud furthers the interests in both protecting the
high privilege of citizenship and promoting the rule of law.
      But in combating citizenship fraud, we must ourselves follow the rule of
law. We must be scrupulous, not only in combating false claims of citizenship,
but in preventing wrongful deprivations of citizenship as well. Cf. Ng Fung Ho
v. White, 259 U.S. 276, 284 (1922) (“To deport one who so claims to be a citizen
obviously deprives him of liberty. . . . It may result also in loss of both property
and life, or of all that makes life worth living.”).
      It is in that spirit that I support reversal and remand for further
proceedings here, due to the district court’s erroneous res judicata analysis.


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                                  No. 18-40175
      And it is in that same spirit that I write separately, to address what may
occur on remand, in the event we send the case back for further proceedings
without further comment:       The district court may simply adhere to the
jurisdictional analysis it employed in Lopez’s first suit and dismiss this second
suit for lack of jurisdiction on precisely the same grounds. As explained below,
I believe the jurisdictional issues presented here require greater exploration
than what has been provided by counsel in these proceedings to date.
      To be sure, it may turn out that dismissal of this case is ultimately the
correct result, whether on jurisdictional grounds or on the merits. But it is not
just the result, but the reasoning, that matters—not just for this case, but for
the cases to come.
                                        I.
      On remand, the district court should consider an issue apparently not
presented by the parties in these proceedings to date: Does the jurisdictional
bar of 8 U.S.C. § 1503(a) apply where, as here, the removal proceedings
terminated nearly two decades ago? For purposes of 8 U.S.C. § 1503(a), is
Lopez seeking review of a denial of citizenship that arose in a removal
proceeding by the immigration court, or in the course of a passport application
to the Department of State?
      The exceptions clause of 8 U.S.C. § 1503(a) states: “[N]o such action may
be instituted [under 8 U.S.C. § 1503(a)] in any case if the issue of such person’s
status as a national of the United States (1) arose by reason of, or in connection
with any removal proceeding under the provisions of this chapter or any other
act, or (2) is in issue in any such removal proceeding.” 8 U.S.C. § 1503(a). We
have treated this exceptions clause as jurisdictional. See, e.g., Rios-Valenzuela
v. Dep’t of Homeland Sec., 506 F.3d 393, 398 (5th Cir. 2007) (“The exception




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                                     No. 18-40175
[under § 1503(a)] precludes jurisdiction” over a claim of citizenship where the
claim “arose by reason of, or in connection with” a removal proceeding.). 1
      The government is well within reason to argue, as an original matter,
that the plain text of the jurisdictional bar of § 1503(a) is satisfied here: The
issue of Lopez’s status as a U.S. citizen did in fact “ar[i]se by reason of, or in
connection with [a] removal proceeding”—indeed, in two separate removal
proceedings, in 1997 and 1998. 8 U.S.C. § 1503(a).
      But Lopez could have responded—and on remand, he might very well
contend—that our court has previously rejected this argument (indeed, we
have done so with the government’s apparent blessing).
      In Rios-Valenzuela, our court theorized that the jurisdictional bar of 8
U.S.C. § 1503(a) applies only to pending, not terminated, removal proceedings.
To quote:
      [W]e do not read the exception as forever hanging an albatross
      around the neck of those who first raise citizenship as a defense in
      a removal proceeding. So long as a citizenship claim finds its
      genesis outside of the context of removal proceedings, the
      exception is no bar to jurisdiction; thus, for example, once removal
      proceedings have run their full course and terminated, any future
      citizenship claim would not arise in those removal proceedings.
      The Government concedes this, explaining that “[i]f Rios-
      Valenzuela were to again apply for citizenship at some future time,
      when no removal proceedings have been initiated, and the claim is
      denied, . . . he would have a right to seek declaratory judgment.”
      This narrower reading is consistent with the concern that the
      federal courts not be used as tools to frustrate and interfere with
      removal proceedings.




      1  The term “national of the United States” primarily means “a citizen of the United
States.” 8 U.S.C. § 1101(a)(22). Not relevant here, the term also includes “a person who,
though not a citizen of the United States, owes permanent allegiance to the United States.”
Id. See generally 8 U.S.C. § 1408 (defining who shall be nationals but not citizens of the
United States).
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                                  No. 18-40175
506 F.3d at 399 (emphasis added). The Seventh Circuit, relying on Rios-
Valenzuela, reached the same conclusion. See Ortega v. Holder, 592 F.3d 738,
742–43 (7th Cir. 2010) (same).
      Perhaps the government, if pressed on remand to respond to such an
argument, might offer a different reading of Rios-Valenzuela and Ortega. Or
propose a theory for distinguishing those rulings. Or the government might
simply disavow its own previous statements and assert that those opinions are
incorrect.
      For example, the government might argue that the opinions are
inconsistent with the text of 8 U.S.C. § 1503(a).           It could theorize that
subclause (2) of the exceptions clause expressly concerns pending removal
proceedings—thereby suggesting that subclause (1) must be read to cover
terminated removal proceedings. See 8 U.S.C. § 1503(a) (“[N]o such action may
be instituted [under 8 U.S.C. § 1503(a)] in any case if the issue of such person’s
status as a national of the United States (1) arose by reason of, or in connection
with any removal proceeding under the provisions of this chapter or any other
act, or (2) is in issue in any such removal proceeding.”).
      And the government might argue that any language to the contrary in
Rios-Valenzuela is strictly dicta, and not binding circuit precedent. In Rios-
Valenzuela, this court invoked the jurisdictional bar of § 1503(a) in the context
of a pending removal proceeding and dismissed suit for lack of jurisdiction
accordingly. Accordingly, the government might argue that Rios-Valenzuela
leaves the issue open in this circuit whether § 1503(a) applies where removal
proceedings have already long since terminated, as they have here.
                                      ***
      These issues warrant careful consideration, particularly in light of the
high stakes involved—not just for Lopez, but for others whose claims of
citizenship are regarded as dubious by federal officials. We must safeguard
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                                  No. 18-40175
the high privilege of citizenship for those lawfully entitled to claim it, while at
the same time secure the privilege against fraudulent interlopers.           These
issues should be considered in the first instance on remand by counsel and the
district court. For as we have repeatedly observed, we are a court of review,
not first view. I concur.




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