                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2005

In Re: Biba Kajtazi
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3966




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BPS-358                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-3966
                                   ________________

                                IN RE: BIBA KAJTAZI,
                                                      Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                          United States District Court For the
                                  District of New Jersey
                        (Related to D.C. Civ. No. 02-cv-00124)
                            __________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. Pro.
                                  September 9, 2005

Before:   RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES


                                (Filed: October 12, 2005 )

                                  _________________

                                        OPINION




PER CURIAM

      On January 11, 2002, petitioner Biba Kajtazi, a federal prisoner, filed a petition for

writ of habeas corpus under 28 U.S.C. § 2241 in United States District Court for the

District of New Jersey, challenging a March 1, 2001 detainer lodged against him by the
former Immigration and Naturalization Service.1 In December 1995, Kajtazi pleaded

guilty to possession with intent to distribute a controlled substance in violation of 21

U.S.C. § 841(a)(1) in United States District Court for the District of Puerto Rico, and he

is now serving a 10 year mandatory minimum sentence. This conviction provides a basis

for his removal from the United States pursuant to Immigration and Nationality Act

(“INA”) § 237(a)(2)(B)(i) (controlled substance violation other than possession of 30

grams or less of marijuana for personal use), 8 U.S.C. § 1227(a)(2)(B)(i), for example,

but only if Kajtazi is an alien, and not a United States citizen. Kajtazi is not yet in

removal proceedings.

       The habeas petition challenged the immigration detainer on the ground that Kajtazi

acquired United States citizenship on July 31, 1985, when his father was naturalized.

When Kajtazi was five years old, he and his parents emigrated to the United States as

lawful permanent residents. In April 1985, his parents allegedly were divorced by the

Municipal Court of Prizren in Kosovo. The divorce decision granted custody of Kajtazi

to his father. On July 31, 1985, when Kajtazi was seventeen years old, his father became

a naturalized citizen of the United States.

       The District Court credited Kajtazi’s argument that he automatically acquired

   1
      On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an
independent agency within the Department of Justice, and its functions were transferred
to the newly formed Department of Homeland Security. See Homeland Security Act, 116
Stat. 2135, Pub.L. 107-296 (2002). The former INS was divided into three separate
agencies: United States Immigration and Customs Enforcement; Bureau of Customs and
Border Protection; and United States Citizenship and Immigration Services.

                                               2
citizenship by satisfying former 8 U.S.C. § 1432(a)(3) when his father was naturalized.2

The court found that he would have automatically acquired citizenship under the statute if

the following conditions were met: (1) naturalization of the parent, (2) having legal

custody of the child, (3) when there has been a legal separation of the parents; (4)

naturalization of the parent takes place while the child is under age 18; and (5) the child

resides in the United States at the time of the naturalization pursuant to a lawful

admission for permanent residence. However, the District Court could not determine

from the face of the documents submitted by Kajtazi that his parents, in fact, had been

legally separated.

       The District Court appointed the Federal Public Defender to represent Kajtazi and

scheduled an evidentiary hearing, but then adjourned matters pending administrative

proceedings. On July 8, 2003, the Bureau of Citizenship and Immigration Services

denied Kajtazi’s N-600 application for a certificate of derivative citizenship. The BCIS

found that, at all relevant times, Kajtazi’s parents were married, and that the divorce

decree submitted in support of the citizenship application was not authentic. Apparently,

the Consular Section of the U.S. Office in Pristina informed the District Adjudications

Officer for the INS that the authenticity of the documentation was questionable, as the

“Marriage Registry Book in Prizren Municipality” did not contain any divorce record for

Kajtazi’s parents.

   2
     Insofar as we write only for the parties, and they are familiar with the statute as set
forth in the District Court’s Order on pages 4-5, we will not set it forth here.

                                              3
       On November 5, 2004, the Administrative Appeals Office of U.S. Citizenship and

Immigration Services rejected Kajtazi’s appeal as untimely. With administrative

proceedings seemingly concluded, Kajtazi moved in November 2004 to reopen the habeas

proceedings and for an evidentiary hearing to resolve a factual dispute concerning his

parents’ divorce. The government opposed the motion, arguing that administrative

proceedings were ongoing insofar as USCIS had on its own, on December 14, 2004,

decided to reopen proceedings pursuant to 8 C.F.R. § 103.5(a)(5)(ii). Kajtazi participated

in these proceedings, and his parents submitted affidavits indicating that they were

divorced in 1985, but remarried two years later.

       On February 14, 2005, the New York District Office once again denied Kajtazi’s

application, finding that his parents were still married to each other and had not been

divorced prior to his turning 18. The decision was based on assertions made by his

mother, on February 17, 1994, and father, on July 31, 1985, in the context of their

naturalization applications, as recorded in their alien files, that they were “still married”

as of those dates. Neither ever mentioned a divorce or remarriage during naturalization

proceedings, and their contemporary affidavits were deemed not credible.

       On August 23, 2005, when there had been no further developments in his habeas

case, Kajtazi filed a petition for writ of mandamus pro se in this Court, asking us to take

jurisdiction away from the District Court and assume it ourselves, or, in the alternative,

order the District Court to rule on his habeas petition. Kajtazi alleged a violation of his



                                               4
right to due process insofar as habeas proceedings have been inordinately delayed.

Although not scheduled to be released until February 13, 2006, Kajtazi asserts that he

would be eligible for early release for completing drug treatment were it not for the

detainer.

       We will deny the petition for writ of mandamus. A writ of mandamus is an

extreme remedy that is invoked only in extraordinary situations. See Kerr v. United

States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this extraordinary

remedy, a petitioner must show both a clear and indisputable right to the writ and that he

has no other adequate means to obtain the relief desired. See Haines v. Liggett Group

Inc., 975 F.2d 81, 89 (3d Cir. 1992). Although an appellate court may issue a writ of

mandamus on the ground that undue delay is tantamount to a failure to exercise

jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), the manner in which a

court controls its docket is discretionary, In re Fine Paper Antitrust Litigation, 685 F.2d

810, 817 (3d Cir. 1982).

       In an order entered on August 31, 2005, the District Court, in pertinent part,

granted Kajtazi’s motion to reopen and scheduled an evidentiary hearing for September

20, 2005. The court appears to have concluded that, although Kajtazi has now exhausted

his available administrative remedies, a genuine issue of material fact exists with respect

to the authenticity of Kajtazi’s parents’ divorce decree. Kajtazi was able to obtain

documentation from a United Nations official in Kosovo that it is unlikely that anyone



                                              5
will ever be able to obtain pre-conflict records to substantiate the legal separation of his

parents. Those public records have been either lost or destroyed in the political upheaval

in the former Yugoslavia.

       It is thus clear from the August 31 Order that the District Court is aware of the

possibility of prejudice with the passing of time, and intends to move quickly to resolve

the factual issue concerning whether Kajtazi has satisfied 8 U.S.C. § 1432(a), specifically

whether he has established that his parents were indeed divorced by the Municipal Court

of Prizren in Kosovo in April 1985. Resolution of the factual issue will necessarily result

in a decision on the habeas petition. We thus will not disturb the court’s handling of

Kajtazi’s habeas case.

       We will deny the petition for writ of mandamus.




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