Findley v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: October 14, 2020
• Docket: 17-2530
• Status: Unpublished

Opinion

17-2530 Findley v. Barr BIA A206 223 376 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of October, two thousand twenty.

PRESENT: GUIDO CALABRESI, ROBERT A. KATZMANN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

ANDREW KEITH FINDLEY, AKA GILLY FINDLEY, AKA ROUNDHEAD FINDLEY

Petitioner,

v. 17-2530

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent. _____________________________________

For Petitioner: RAJEEV MUTTREJA (Conor Reardon, on the brief) Jones Day, New York, NY.

For Respondent: YANAL H. YOUSEF Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED and the petition is TRANSFERRED to the district court for

further factfinding.

Petitioner Andrew Keith Findley, an alleged native and citizen of Jamaica, petitions for

review of a July 21, 2017 decision of the BIA denying his motion to reopen his removal

proceeding. In re Andrew Keith Findley, No. A 206 223 376 (B.I.A. Jul. 21, 2017). We assume the

parties’ familiarity with the underlying facts and procedural history in this case.

We ordinarily review the BIA’s denial of a motion to reopen for abuse of discretion, Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006), but when there is an issue of nationality, we review

the claim de novo, 1 see Jaen v. Sessions, 899 F.3d 182, 185-86 (2d Cir. 2018); Gil v. Sessions, 851

F.3d 184, 186 (2d Cir. 2017). The Immigration and Nationality Act (“INA”) addresses judicial

review of nationality claims. “If the petitioner claims to be a national of the United States and the

court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about

the petitioner’s nationality is presented, the court shall decide the nationality claim.” 8 U.S.C.

§ 1252(b)(5)(A). If, however, there is a “genuine issue of material fact” about the petitioner’s

nationality, “the court shall transfer the proceeding to the district court . . . for a new hearing on

the nationality claim and a decision on that claim.” Id. § 1252(b)(5)(B). In determining whether a

petitioner has raised a material factual dispute, we apply “the same principles employed on

a [Federal Rule of Civil Procedure] 56 motion for summary judgment.” Duarte-Ceri, 630 F.3d at

1 Generally, where, as here, an alien has been ordered removed for a controlled substance offense, a jurisdictional bar precludes our review of any final order of removal. 8 U.S.C. § 1252(a)(2)(C). However, we always retain jurisdiction to review constitutional claims and questions of law, including issues surrounding nationality and citizenship. See Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) (“An assertion of U.S. citizenship is [] a denial of an essential jurisdictional fact in a deportation proceeding.”) (internal quotation marks omitted); Ashton v. Gonzales, 431 F.3d 95, 97 (2d Cir. 2005) (“If [petitioner] is a United States citizen, then § 1252(a)(2)(C) cannot bar his petition.”). 2 91; see also Agosto v. INS, 436 U.S. 748, 754 (1978) (“We may reasonably assume that, in using

the language from Rule 56 as the standard for granting de novo district court hearings on

citizenship claims, Congress intended the language to be interpreted similarly to that in Rule 56.”).

We easily conclude that Findley has raised a genuine issue of material fact concerning his

nationality. The agency’s determination of alienage was based in substantial part on evidence

contained in a Form I-213. A Form I-213 is an official record that an immigration officer prepares

when processing an individual suspected of being an alien unlawfully present in the United States.

See, e.g., Bauge v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). We have held that an I-213 is

“presumptively reliable,” because it “contain[s] guarantees of reliability and trustworthiness that

are substantially equivalent” to those required of business records admissible under the Federal

Rules of Evidence. Felzcerek v. INS, 75 F.3d 112, 116–17 (2d Cir. 1996). Here, the Form I-213

contains information from interviews with three of Findley’s family members (two half-brothers

and a sister-in-law), who stated that Findley was born in Jamaica. 2

We, however, agree with Findley that a March 21, 2017 email from the Jamaican embassy

to his counsel raises a genuine issue of material fact concerning Findley’s nationality. The email

indicates that Findley “was not identified as a national of Jamaica, during [a] verification interview

conducted by [the] embassy of Jamaica” and that the embassy would not be issuing Findley travel

documents “at [that] time.” Cert. Admin. R. 48. Even if the email does not represent a conclusive

determination as to Findley’s nationality, it at a minimum demonstrates that the Jamaican embassy

could not confirm Findley’s nationality and raises questions about the respondent’s determination

2 The three relatives whose statements appeared in the Form I-213 are related to Findley through his father, and their statements do not indicate how they knew where Findley was born. Two of the three relatives interviewed did not know the identity of Findley’s mother. 3 that Findley is a Jamaican national. See Felzcerek, 75 F.3d at 117 (holding that the presumption of

reliability afforded to a Form I-213 is lost when a petitioner introduces evidence contradicting

statements in the form or undermining its reliability). We therefore conclude that transfer to the

district court is required.

We need not address additional evidence of nationality in the record because 8 U.S.C.

§ 1252(b)(5)(B) requires transfer once we determine a genuine issue of material fact exists. Garcia

v. Dep’t of Homeland Sec., 669 F.3d 91, 98 (2d Cir. 2011) (transferring to the district court for

resolution of factual dispute regarding citizenship and stating that the district court must “weigh

the probative value of [petitioner’s] and the Government’s evidence”). We note, however, our

agreement with Judge Videla’s conclusion that the evidence of Findley’s alienage submitted by

the respondent was “unreliable and often contradictory.” Cert. Admin. R. 303.

For the foregoing reasons, the petition for review is GRANTED and the case is

TRANSFERRED to the United States District Court for the Southern District of New York for

further factfinding. All pending motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court