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


2-17-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3217




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"Kingdale v. Atty Gen USA" (2006). 2006 Decisions. Paper 1558.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-3217
                                  ________________

                           ATKINS MAGNUS KINGDALE,

                                                         Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                    _______________________________________

                      On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                              (Agency No. A91 647 047)
                    _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 February 14, 2006

     BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES

                               (Filed: February 17, 2006 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      An Immigration Judge ordered Atkins Magnus Kingdale removed to Ghana for

having been convicted of an aggravated felony. The Board of Immigration Appeals (BIA)

dismissed Kingdale’s appeal as untimely, and subsequently denied his motion to
reconsider. Kingdale asserts that he is a citizen or national of the United States and seeks

review of the BIA’s orders. For the following reasons, we will deny his petition for

review.

       Kingdale, a native of Ghana, was admitted to the United States as a lawful

permanent resident in 1990. He applied for naturalization in 1995 and was interviewed in

January 1996. In June 1998, while his naturalization application remained pending,

Kingdale pleaded guilty in New Jersey to endangering the welfare of a child. He was

sentenced to two years probation. Kingdale’s application for naturalization was

subsequently denied in October 2001.

       In September 2003, the government charged Kingdale with removability for having

been convicted in 1998 of an aggravated felony, i.e., sexual abuse of a minor. Kingdale

appeared before the Immigration Judge (IJ) and moved to terminate removal proceedings

on the grounds that his conviction did not constitute an aggravated felony and that he had

applied for naturalization. The IJ found Kingdale removable for having committed an

aggravated felony, i.e., sexual abuse of a minor, and on December 1, 2003, ordered him

removed to Ghana. Kingdale filed a pro se notice of appeal to the BIA on March 24,

2004, which the BIA dismissed as untimely on August 24, 2004.

       In September 2004, Kingdale sought to challenge the BIA’s order and the order of

removal by filing a habeas corpus petition under 28 U.S.C. § 2241 in the District Court.

He also filed a motion to reconsider with the BIA. By order entered October 4, 2004, the



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District Court stayed Kingdale’s removal pending a decision on his habeas petition. After

the BIA denied Kingdale’s motion to reconsider on December 20, 2004, he amended his

habeas petition to include a challenge to this order. While his habeas petition was

pending, the REAL ID Act of 2005 took effect on May 11, 2005, which required the

District Court to transfer the habeas petition to this Court to be treated as a petition for

review. See Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005).

       We will deny Kingdale’s petition for review. First, to the extent that Kingdale

seeks to challenge the IJ’s conclusion that his New Jersey conviction for endangering the

welfare of a child is an aggravated felony, we lack jurisdiction to consider this challenge.

Although Kingdale filed a notice of appeal from the IJ’s order, the BIA dismissed the

appeal as untimely. Because Kingdale did not present this claim properly to the BIA, the

claim is deemed unexhausted. See Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005).

Absent exhaustion of available administrative remedies, we are without jurisdiction to

consider the claim. See 8 U.S.C. § 1252(d)(1); Popal, 416 F.3d at 252-53.

       Likewise, Kingdale’s claim of nationality or citizenship is unexhausted because he

failed to file a timely notice of appeal to the BIA. Under this Court’s binding precedent,

exhaustion of available administrative remedies is a jurisdictional requirement. While this

Court has never recognized an exception for a claim of nationality, we are aware that at

least one Court of Appeals has. See Theagene v. Gonzales, 411 F.3d 1107, 1111 (9th Cir.




                                               3
2005). Acknowledging without question the extreme importance of a nationality claim,

we decline to follow the Ninth Circuit’s lead at this time.

       Even if we were to exercise jurisdiction over Kingdale’s unexhausted nationality

claim, we would reject it. 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.” 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). Although Kingdale applied for naturalization and was

interviewed, he was never sworn in as a citizen. In fact, his naturalization application was

denied. Accordingly, Kingdale is neither a citizen nor a national.

       Finally, to the extent Kingdale challenges the BIA’s orders dismissing his appeal as

untimely and denying his motion to reconsider, these challenges provide no basis for

granting his petition for review. The BIA ruled without error that Kingdale’s notice of

appeal was filed beyond the thirty-day limit. See 8 C.F.R. 1003.38(b); Popal, 416 F.3d at

252 n.1. Because the BIA committed no error in dismissing the appeal as untimely, its

decision to deny Kingdale’s motion to reconsider was also correct. See 8 C.F.R.

§ 1003.2(b) (requiring motion to reconsider to specify errors of fact or law and be

supported by pertinent authority).

       For these reasons, we will deny Kingdale’s petition for review. The stay of removal

imposed by the District Court is hereby vacated.



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