Okafor v. Gonzales

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 21, 2006 IN THE UNITED STATES COURT OF APPEALS July 18, 2006

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________

No. 05-60001 _____________________

CELESTINE IFEANACH OKAFOR

Petitioner v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

Respondent

_________________________________________________________________

Petition for Review of an Order of the Board of Immigration Appeals _________________________________________________________________

Before KING, STEWART, and DENNIS, Circuit Judges.

KING, Circuit Judge:

Celestine Okafor petitions this court for review of a

decision of the Attorney General reversing a previous decision of

the Board of Immigration Appeals. For the reasons stated below,

we DENY the petition.

I. BACKGROUND

Petitioner Celestine Okafor (“Okafor”), a native of Nigeria,

entered the United States in 1990 and subsequently became a

lawful permanent resident as a result of his marriage to a United States citizen. He applied for naturalization in 1994. On March

31, 1995, Okafor was interviewed by an INS officer about the

information in his application for naturalization. During or

after the interview, Okafor signed a document containing the oath

of renunciation and allegiance required of all applicants for

naturalization. After the interview, the INS officer recommended

the approval of Okafor’s naturalization application; however,

Okafor never participated in a public oath ceremony and never

received a certificate of naturalization. According to 8 U.S.C.

§ 1448(a), “[a] person who has applied for naturalization shall,

in order to be and before being admitted to citizenship, take in

a public ceremony before the Attorney General or a court with

jurisdiction under section 1421(b) of this title an oath”

pledging allegiance to the United States and renouncing all

former allegiances to foreign states and sovereignties.

On November 7, 1997, Okafor was convicted of conspiracies to

commit mail fraud, wire fraud, and money laundering. After his

conviction, the Immigration and Naturalization Service (“INS”)

charged Okafor with removability as an alien convicted of an

aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii).

Following a hearing, on March 1, 2000, an immigration judge

(“IJ”) found Okafor removable as charged and issued an order

directing that Okafor be removed to Nigeria. In this order, the

IJ rejected Okafor’s claim that he was a naturalized U.S.

citizen, concluding that Okafor could not have been fully

2 naturalized because he never took the required oath of

renunciation and allegiance in an administrative or court

ceremony.

Okafor appealed from this decision to the Board of

Immigration Appeals (“BIA”). On November 14, 2000, the BIA

accepted Okafor’s arguments that the signed oath form satisfied

the public oath ceremony requirement of 8 U.S.C. § 1448(a).

More specifically, the BIA found that Okafor’s signed copy of the

printed oath demonstrated that the oath “was administered to him

by the [INS] at the time of his naturalization interview.”

Therefore, the BIA concluded that Okafor had successfully

completed the naturalization process, and it ordered the removal

proceedings to be terminated.

The INS then filed a motion for reconsideration and a motion

to reopen with the BIA, and the BIA denied these motions on March

30, 2001. In this second decision, the BIA reiterated its “prior

conclusion that [Okafor] had been naturalized as a United States

citizen,” stating that the INS had “naturalized the respondent by

recommending him for naturalization and administering the oath in

writing . . . . in accordance with the evidence of record.”

On July 25, 2002, the BIA’s initial decision was referred to

the Attorney General for review. On December 1, 2004, the

Attorney General delivered his opinion, reversing the BIA’s

finding and ruling that Okafor was not a naturalized citizen

because he had not satisfied the public ceremony requirements of

3 8 U.S.C. § 1448(a). After reviewing the record, the BIA opinion,

and the relevant statutes and regulations, the Attorney General

held that nothing “excused [Okafor] from the requirement that he

‘take [the oath] in a public ceremony.’” The Attorney General

also noted that the INS officer who interviewed Okafor stated

“that it was the practice of his office” to require all

applicants for naturalization to “sign a copy of the oath at the

conclusion of the interviews in order to save time at the

subsequent public ceremony and that the office informed all

applicants that they would not become citizens until they took

the oath at the ceremony.” Accordingly, the Attorney General

concluded that Okafor “did not meet the requirements for becoming

a naturalized citizen of the United States” and reversed the

BIA’s decision.

In accordance with the Attorney General’s decision, on

December 20, 2004, the BIA vacated its two prior decisions,

dismissed Okafor’s appeal, and reinstated the IJ’s prior order of

removal. Okafor filed his petition for review with this court on

January 3, 2005. On April 14, 2005, Okafor was removed to

Nigeria.

II. DISCUSSION

Our jurisdiction over this petition is governed by 8 U.S.C.

§ 1252, as modified by the REAL ID Act of 2005, Pub. L. No. 109-

13, 119 Stat. 231. Under § 1252(a)(2)(C), “no court shall have

4 jurisdiction to review any final order of removal against an

alien” such as Okafor “who is removable by reason of having

committed a criminal offense covered in section . . .

1227(a)(2)(A)(iii) . . . of this title . . . .” However, this

general jurisdictional bar must be measured against

§ 1252(a)(2)(D), which states that § 1252(a)(2)(C) shall not “be

construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.”

The government claims that Okafor has failed to raise any

constitutional claims or questions of law in his petition for

review with this court, and therefore, the government suggests

that our jurisdiction over Okafor’s petition is precluded by the

general jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C). But

contrary to the government’s jurisdictional argument, this

petition presents a question of law rather than a question of

fact because both sides agree about the underlying factual

sequence and disagree only about the legal significance of those

facts: Okafor argues that the signing of the oath form satisfied

the public ceremony requirements of 8 U.S.C. § 1448(a); the

government disagrees, and argues that § 1448(a) requires a

separate public oath ceremony. Accordingly, because Okafor has

raised a legal question of first impression before this court, we

have jurisdiction to review his petition pursuant to

5 § 1252(a)(2)(D). Cf. Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d

1350, 1351-52 (11th Cir. 2005) (per curiam) (ruling that the

Eleventh Circuit had jurisdiction over a near-identical petition

because the petitioner had presented a question of law).

In the alternative, the government suggests that we should

adopt the reasoning of the Eleventh Circuit in Tovar-Alvarez and

deny Okafor’s petition for review. In Tovar-Alvarez, the

Eleventh Circuit considered a petition for review from an alien

who, like Okafor, was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). Also like Okafor, the alien petitioner in

Tovar-Alvarez argued “that he became an American citizen” and was

therefore exempt from subsequent removal “when he signed [an]

oath vowing allegiance to the United States in the presence of an

INS officer during his naturalization interview.” Tovar-Alvarez,

427 F.3d at 1352. The Eleventh Circuit rejected this argument

and held that by relying on the signed oath form, the petitioner

“failed to show that he has taken the oath of allegiance during a

public ceremony” as required by 8 U.S.C. § 1448(a). Id. at 1353.

Because the petitioner had not participated in a public ceremony

as required by statute, the Eleventh Circuit concluded that he

had “not satisfied the statutory prerequisites of citizenship[,]”

and it denied his petition for review. Id.

The Eleventh Circuit’s conclusion in Tovar-Alvarez is

supported by the Ninth Circuit’s similar reasoning in Perdomo-

Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003). In Perdomo-

6 Padilla, the Ninth Circuit considered a petition for review from

an alien who, like Okafor and like the petitioner in Tovar-

Alvarez, was under an order of removal pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii). The petitioner in Perdomo-Padilla argued

that he became a United States national--and was thereby exempt

from subsequent removal--when “he completed an application for

naturalization that contained a statement of allegiance to the

United States.” Perdomo-Padilla, 333 F.3d at 966. In

considering this argument, the Ninth Circuit observed that under

the petitioner’s interpretation of the governing statutes,

“rejected naturalization applicants who do not renounce their

statements of allegiance . . . . would not be aliens and,

accordingly, would not be removable under 8 U.S.C. § 1227

(providing only for the removal of ‘aliens’).” Id. at 969.

Concluding that Congress “clearly did not intend” such an “absurd

result[,]” the Ninth Circuit rejected this argument and denied

the petition for review. Id.

We agree with the government that Okafor’s petition presents

issues nearly identical to those considered by the Eleventh

Circuit in Tovar-Alvarez, and we are persuaded by the reasoning

of that court and by the reasoning of the Ninth Circuit in

Perdomo-Padilla. In arguing that his signed oath form satisfied

the public ceremony requirement of 8 U.S.C. § 1448(a), Okafor

presents an interpretation contrary to the clear language of the

statute which might create unnecessary obstacles to the removal

7 of appropriately rejected naturalization applicants. Because

Okafor has failed to show that his signed oath form met the

statutory requirement of a public oath ceremony, he has failed to

show that he met the requirements for becoming a naturalized

citizen of the United States.

III. CONCLUSION

For the reasons stated above, Okafor’s petition for review

is DENIED.